NO. 16-743

In the 

Supreme Court of the United States _________________

 

INDEPENDENCE INSTITUTE, 

APPELLANT, 

v. 

FEDERAL ELECTION COMMISSION, 

APPELLEE. 

_________________

On Appeal From The United States 

District Court For The District Of Columbia 

__________________

BRIEF OF AMICUS CURIAE 

SENATE MAJORITY LEADER MITCH MCCONNELL 

IN SUPPORT OF PROBABLE JURISDICTION 

_________________

BOBBY R. BURCHFIELD

 Counsel of Record 

MATTHEW M. LELAND

CHANDRA M. KURIEN

BARRETT R.H. YOUNG

KING & SPALDING LLP 

1700 Pennsylvania Ave. NW 

Washington, DC 20006 

(202) 626-5524 

bburchfield@kslaw.com 

Counsel for Amicus Curiae

January 9, 2017 
i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION ....................................................... 2 

BACKGROUND .......................................................... 3

SUMMARY OF ARGUMENT .................................... 6 

ARGUMENT ............................................................... 8

I. BUCKLEY RECOGNIZED A 

MATERIAL DISTINCTION BETWEEN 

CAMPAIGN-RELATED SPEECH AND 

ISSUE SPEECH. .......................................... 8

A. Buckley Construed FECA To Avoid 

Imposing Disclosure Obligations on 

Non-Campaign-Related Issue 

Speech. .................................................... 8

B. Citizens United Did Not Overrule 

Buckley’s Holdings on Disclosure. ....... 10

C. Congress Asserted a Disclosure 

Interest Only in “Sham Issue Ads.” .... 12

II. THE INSTITUTE’S ADVERTISEMENT 

IS NON-CAMPAIGN ISSUE SPEECH 

AT THE CORE OF THE FIRST 

AMENDMENT. .......................................... 14

A. The Institute’s Advertisement Is 

Issue Speech, Not Campaign 

Advocacy. .............................................. 14

B. The First Amendment Places a High 

Value on Anonymous Issue Speech. ... 16
ii

III. NEITHER CONGRESS NOR THE FEC 

HAS IDENTIFIED A SUFFICIENT 

INTEREST TO OVERRIDE THE FIRST 

AMENDMENT PROTECTION OF THE 

INSTITUTE’S DONORS. ........................... 19

A. This Court’s Precedents Do Not 

Foreclose the Institute’s Argument. .... 19

B. None of the Interests Identified by 

the Government Are Correlated to 

Compelled Disclosure of Donors 

Supporting Non-Campaign Issue 

Speech. .................................................. 20

CONCLUSION ......................................................... 27
iii 

TABLE OF AUTHORITIES 

Cases

Ashcroft v. Free Speech Coalition, 

535 U.S. 234 (2002) ...................................... 21, 24 

Buckley v. American Constitutional Law Foundation, 

Inc., 

525 U.S. 182 (1999) ............................................ 18 

Buckley v. Valeo, 

424 U.S. 1 (1976) ........................................ passim

Citizens United v. FEC, 

558 U.S. 310 (2010) .................................... passim 

Edward J. DeBartolo Corp. v. Florida Gulf Coast 

Bldg. & Const. Trades Council, 

485 U.S. 568 (1988) ............................................ 14 

FEC v. Wisconsin Right to Life, 

551 U.S. 449 (2007) .................................... passim

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) ............................................ 20 

Lovell v. Griffin, 

303 U.S. 444 (1938) ............................................ 18 

McConnell v. FEC, 

251 F.Supp. 2d 176 (D.D.C. 2003) ..................... 13 

McConnell v. FEC, 

540 U.S. 93 (2003) ...................................... passim

McCutcheon v. FEC, 

134 S.Ct. 1434 (2014) ....................................... 1, 2 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995) .................................... passim
iv

Shalala v. Illinois Council on Long Term Care, Inc., 

529 U.S. 1 (2000) ................................................ 10 

Talley v. California, 

362 U.S. 60 (1960) .............................................. 18 

Van Hollen, Jr. v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) ........................ 6, 19 

Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village 

of Stratton, 

536 U.S. 150 (2002) ............................................ 18 

Wisconsin Right to Life v. FEC, 

546 U.S. 410 (2006) (per curiam) ....................... 19 

Constitution 

U.S. Const. amend. I ......................................... passim 

Statutes and Legislative Material

52 U.S.C. § 30110 .................................................... 5, 6 

52 U.S.C. § 30104(f)(1) ................................................ 4 

52 U.S.C. § 30104(f)(3) .......................................... 4, 15 

144 Cong. Rec. H4866 (daily ed. June 19, 1998) ...... 13 

147 Cong. Rec. S3034 (daily ed. Mar. 28, 2001) ....... 13 

147 Cong. Rec. S3070, 2001 WL 303410 

(Mar. 29, 2001) .................................................... 13 

Justice Safety Valve Act, Senate Bill No. 619 ...... 3, 14 

Patient Protection and Affordable Care Act, 

Pub. L. No. 111-148, 124 Stat. 119 (2010) ......... 25 

Bipartisan Campaign Reform Act, 

Pub. L. No. 107-155 (2002) ......................... passim 
v

Other Authorities 

FEC Advisory Op. No. 2012-19 (June 13, 2012), 

available at http://saos.fec.gov/aodocs/AO%2020 

12-19.pdf ............................................................. 25 

Ilya Shapiro, Trevor Burrus, Gabriel Latner, Truthiness and the First Amendment, 16 U. PA. J.

CONST. L. HEIGHTENED SCRUTINY 51 (2014) ...... 23 
1 

INTEREST OF AMICUS CURIAE1

Senator Mitch McConnell is the Majority Leader 

of the United States Senate and the senior United 

States Senator from the Commonwealth of Kentucky. 

He is the former Chairman of the National Republican Senatorial Committee, a national political party 

committee comprising the Republican members of 

the United States Senate. 

Senator McConnell is a respected senior statesman and is recognized as the Senate’s most passionate defender of the First Amendment guarantee of 

unrestricted political speech. He has acquired considerable experience over the last three decades complying with federal and state campaign finance restrictions and legislating on campaign finance issues. 

For many years, Senator McConnell has participated 

in litigation challenging restrictions on political 

speech. For example, he was the lead plaintiff challenging the Bipartisan Campaign Reform Act 

(“BCRA”) in McConnell v. FEC, 540 U.S. 93 (2003). 

In addition, he participated as amicus by brief and 

oral argument in both Citizens United v. FEC, 558 

U.S. 310 (2010), which overruled McConnell v. FEC 

in part, and in McCutcheon v. FEC, 134 S.Ct. 1434 

 

1

 This brief is filed with the consent of all parties and all parties 

received timely notice of the filing pursuant to United States 

Supreme Court Rule 37.2(a). Pursuant to Rule 37.6, Senator 

McConnell states that no party or person other than Senator 

McConnell and his counsel participated in or contributed money 

for the drafting of this brief. 
2

(2014). Senator McConnell submits this brief in support of Probable Jurisdiction. 

INTRODUCTION 

The precise and highly important issue in this 

case is whether the First Amendment forbids application of donor disclosure requirements to noncampaign-related issue speech by the Independence 

Institute merely because the speech mentions a candidate for federal office in his home state during the 

time before a federal election. The donors to the Institute desire to remain anonymous and will not fund 

the speech if their identities are disclosed. Thus, the 

threat of government-mandated donor disclosure is 

actually suppressing the Institute’s speech. 

The three-judge district court interpreted this 

Court’s decision in Citizens United to allow application of the disclosure regime to any broadcast message that meets the definition of “electioneering 

communication” in the Bipartisan Campaign Reform 

Act. In the district court’s reading, disclosure applies 

regardless whether the message is “campaignrelated,” as it was in Citizens United, or noncampaign-related, as is the Institute’s message. So 

interpreted, Citizens United is in direct conflict with 

Buckley v. Valeo, 424 U.S. 1, 64 (1976), which recognized and applied the critical distinction between 

campaign speech, for which the government may 

compel disclosure, and non-campaign issue speech, 

for which it may not. 

Senator McConnell submits that this case provides the Court a critical opportunity to reconcile the 

tension between Citizens United and Buckley. That 
3

tension may be resolved by making clear that any 

government interest in publicly identifying persons 

engaged in campaign-related speech does not correlate to or outweigh the right to anonymity of a speaker engaged in non-campaign-related issue speech. 

This distinction would effectuate the legislative intent behind the disclosure provisions. Accordingly, 

as applied to the Institute’s speech, any interest in 

disclosure does not outweigh the core First Amendment right of the Institute’s donors to remain anonymous in their discussion of issues. 

BACKGROUND

The Independence Institute is a nonprofit organization recognized as tax-exempt under section 

501(c)(3) of the Internal Revenue Code. It conducts 

research and seeks to educate the public about a 

range of issues, including criminal justice. 

In 2014, the Institute desired to air a radio advertisement advocating passage of Senate Bill No. 

619, the Justice Safety Valve Act. The text of the advertisement would have stated: 

Let the punishment fit the crime. 

But for many federal crimes, that’s no longer 

true. 

Unfair laws tie the hands of judges, with huge 

increases in prison costs that help drive up the 

debt. 

And for what purpose? 

Studies show that these laws don’t cut crime. 
4

In fact, the soaring costs from these laws make it 

harder to prosecute and lock up violent felons. 

Fortunately, there is a bipartisan bill to help fix 

the problem – the Justice Safety Valve Act, bill 

number S.619. 

It would allow judges to keep the public safe, 

provide rehabilitation, and deter others from 

committing crimes. 

Call Senators Michael Bennett and Mark Udall 

at 202-224-3121. Tell them to support S.619, the 

Justice Safety Valve Act. 

Tell them it’s time to let the punishment fit the 

crime. 

Paid for by Independence Institute, I2I dot org. 

Not authorized by any candidate or candidate’s 

committee. Independence Institute is responsible for the content of this advertising. 

App. 7–8. The Institute intended to air the advertisement on radio in Colorado, to the constituents of 

Senators Udall and Bennett, during the period before 

the 2014 election when citizens are most closely following public policy debate. Because Senator Udall 

was running for reelection, under section 201(a) of 

the Bipartisan Campaign Reform Act, 52 U.S.C. 

§ 30104(f)(3), the advertisement met the definition of 

an “electioneering communication,” and the Institute 

would have been required to file reports with the 

Federal Election Commission (“FEC”) and identify 

the donors funding the advertisement within 24 

hours of airing it. 52 U.S.C. § 30104(f)(1). 
5

Because the Institute’s donors desire anonymity, 

they decline to fund the advertisement if their identities will be disclosed. Accordingly, the Institute 

sought a declaratory judgment that the advertisement is protected from the donor disclosure requirements by the First Amendment. After the district 

court initially refused to convene a three-judge court, 

the D.C. Circuit reversed and remanded, and the 

case was submitted to a three-judge district court as 

required by section 403 of BCRA, Pub. L. No. 107-155 

(2002) (codified at 52 U.S.C. § 30110 (note)). 

The district court granted the FEC’s motion for 

summary judgment, and denied the Institute’s motion. The court held that the advertisement is an 

“electioneering communication” subject to the disclosure requirements in BCRA. App. 35. The advertisement, it said, “‘falls within the constitutional 

bounds of the donor-disclosure rule precisely because

that advocacy points a finger at an electoral candidate.’ See Citizens United, 558 U.S. at 369.” App. 23 

(emphasis added). 

The district court gave three reasons for its decision. First, it believed this Court’s decisions in 

McConnell v. FEC and Citizens United v. FEC had 

deemed the mere mention of a candidate in an advertisement during the run up to an election sufficient to 

overcome the speaker’s First Amendment interests in 

anonymity. App. 22–24. Second, it viewed the distinction between campaign-related advertising and 

“‘genuine’ issue advocacy” as “entirely unworkable as 

a constitutional rule.” App. 24–27. Finally, using 

exacting scrutiny, it held that the government’s interests in providing the electorate with information, 
6

deterring actual and apparent corruption, and gathering data necessary to enforce the campaign finance 

laws outweighed the Institute’s interest in donor anonymity. App. 29–32. 

The Institute is pursuing a timely appeal directly 

to this Court. Pub. L. No. 107-155 §403(a)(3) (2002) 

(codified at 52 U.S.C. § 30110 (note)). 

SUMMARY OF ARGUMENT 

This case brings into sharp relief two competing interests in the Court’s First Amendment jurisprudence. On the one hand is the established First 

Amendment right of a speaker, author, pamphleteer, 

or benefactor of non-campaign-related speech to remain anonymous. This Court has repeatedly emphasized the importance of anonymous speech in American history. Anonymity may be important to individuals for many weighty reasons including fear of 

reprisal, a desire for privacy, or a concern that identification of a message with a controversial speaker 

could detract from or overshadow the message. This 

Court has recognized that anonymity can be as important to the content of the speech as any other editorial judgment. As this case shows, government disclosure statutes and regulations can and do suppress 

speech. 

Competing with this right of anonymity is the 

“extra-constitutional value” of transparency, or disclosure. See Van Hollen, Jr. v. FEC, 811 F.3d 486, 

501 (D.C. Cir. 2016). In the context of campaignrelated speech, this Court has held that the potential 

for suppression is outweighed by the benefits of disclosure. But none of the interests that might justify 
7

disclosure of campaign-related speech carry weight in 

the context of a pure issue advertisement that has no 

electoral message but simply calls on members of the 

public to register their views on pending legislation 

with two incumbent Senators, only one of whom is at 

present a candidate. 

Buckley recognized and heeded this critical 

distinction between campaign-related speech and 

non-campaign-related speech in the context of the 

disclosure regime of the Federal Election Campaign 

Act (“FECA”). Likewise, in BCRA, Congress also focused on disclosing campaign-related information. 

Because the messages in Citizens United were plainly campaign-oriented, the Court had no reason to address or apply that distinction, much less (as the district court assumed) tacitly to overrule Buckley and 

abandon it. This case provides an opportunity for the 

Court to reconfirm the constitutionally-critical distinction between campaign-related and issue speech. 

The government interests identified by the district court do not correlate with this particular advertisement. The electorate’s need for information about 

supporters of candidates is not fulfilled by compelling 

disclosure of funding information for a non-campaign 

related advertisement. As an independent advertisement, it raises no concerns about corruption or 

the appearance of corruption. And disclosure of the 

funding sources for this non-campaign message will 

not advance the effort to enforce the campaign finance laws. 
8

ARGUMENT 

I. BUCKLEY RECOGNIZED A MATERIAL 

DISTINCTION BETWEEN CAMPAIGNRELATED SPEECH AND ISSUE SPEECH. 

In Buckley, the Court devoted 25 pages to the 

disclosure issues raised by FECA. 424 U.S. at 60–84. 

In the six-page discussion of disclosure in Citizens 

United, 558 U.S. at 366–71, the Court relied heavily 

on Buckley, citing it six times, and never once questioned the essential precepts it established. Yet, as 

shown below, the district court’s interpretation of Citizens United would disregard one of the central tenets of Buckley—the importance of construing campaign finance disclosure statutes to avoid sweeping 

in non-campaign issue speech. This result was not 

contemplated in Citizens United, nor by Congress in 

passing the electioneering communication disclosure 

provisions in BCRA. 

A. Buckley Construed FECA To Avoid 

Imposing Disclosure Obligations on 

Non-Campaign-Related Issue Speech. 

Buckley addressed FECA’s disclosure requirements extensively, especially in connection with its 

requirements to make disclosures about “contributions” and “expenditures,” and its imposition of disclosure requirements on “political committees.” It 

began its analysis by recognizing the First Amendment protections against compelled disclosure, which 

“can seriously infringe on privacy of association and 

belief guaranteed by the First Amendment.” 424 

U.S. at 64. The “significant encroachments on First 

Amendment rights” imposed by compelled disclosure, 
9

the Court wrote, “must survive exacting scrutiny.” 

This is a “strict test.” Id. at 64, 66. 

Applying “exacting scrutiny,” the Court “insisted that there be a ‘relevant correlation’ or a ‘substantial relation’ between the governmental interest 

and the information required to be disclosed.” Id. at 

64. Appropriate disclosure provides information to 

voters “‘as to where political campaign money comes 

from and how it is spent by the candidate,’” id. at 66 

(quoting H.R. Rep. No. 92-564, p. 4 (1971)), and “deter[s] actual corruption and avoid[s] the appearance 

of corruption by exposing large contributions and expenditures,” thus arming the public “with information about a candidate’s most generous supporters,” 424 U.S. at 67. 

Of greatest import here is Buckley’s discussion 

of the reporting requirements imposed on “political 

committees” in section 434(3) of FECA. See 424 U.S. 

at 74–82. The Court expressed concern that the disclosure requirements for political committees “could 

be interpreted to reach groups engaged purely in issue discussion.” Id. at 79. To avoid this result, the 

Court construed the term “political committee” to include, and imposed reporting requirements on, only 

those “organizations that are under the control of a 

candidate or the major purpose of which is the nomination or election of a candidate.” Id. at 79 (emphasis added). “[S]o construed,” the Court concluded, 

disclosure would apply only to contributions and expenditures “assumed to fall within the core area 

sought to be addressed by Congress. They are, by definition, campaign related.” Id. (emphasis added). 
10

Further, the Court construed the term “expenditure” 

as applied to the political committee disclosure provision, as “directed precisely to that spending that is 

unambiguously related to the campaign of a particular federal candidate.” Id. at 80 (emphasis added). 

The Court expressed no concern about the “workability” of enforcing this critical distinction between 

campaign speech and issue speech. 

Under this reasoning, the First Amendment 

forbids application of the disclosure regime to groups 

like the Independence Institute “engaged purely in 

issue discussion.” Id. at 79. 

B. Citizens United Did Not Overrule 

Buckley’s Holdings on Disclosure. 

The district court deemed Citizens United controlling on the donor disclosure issue, holding that 

disclosure was triggered merely because the Institute’s advertisement “points a finger at an electoral 

candidate.” App 23. The district court failed to take 

into account the critical distinction drawn in Buckley 

between campaign-related speech and issue speech, 

apparently assuming that Citizens United had tacitly 

abandoned that distinction. 

The district court misread Citizens United. It 

would be inappropriate to conclude that this Court 

has overruled a precedent, particularly a key holding 

of a landmark precedent like Buckley, without explicitly saying so. Indeed, “[t]his Court does not normally overturn, or so dramatically limit, earlier authority 

sub silentio.” Shalala v. Illinois Council on Long 

Term Care, Inc., 529 U.S. 1, 18 (2000). 
11

More fundamentally, Citizens United involved 

“Hillary: The Movie” and three advertisements promoting that movie. “The movie, in essence, is a feature- length negative advertisement that urges viewers to vote against Senator Clinton for President.” 

Citizens United, 558 U.S. at 325. Citizens United allowed application of the disclosure requirements to 

the movie and three advertisements on the ground 

that “the public has an interest in knowing who is 

speaking about a candidate shortly before an election,” “[e]ven if the ads only pertain to a commercial 

transaction.” Id. at 369. 

But context matters. The messages at issue in 

Citizens United fell directly into the ambit of campaign-related speech. Not only was the speech at issue in Citizens United the very speech Congress was 

attempting to address with section 203 of BCRA (see 

Part I.C. below), it was the very campaign-related 

speech that Buckley held could be subject to compelled disclosure consistent with the First Amendment. The fact that the advertisements for the movie 

“pertain[ed] to a commercial transaction” did not 

make them any less campaign-related: an advertisement selling “Defeat Smith” t-shirts is as campaignrelated as a “Defeat Smith” advertisement selling 

nothing. The commercial context makes no material 

difference if the message is plainly campaign-related. 

Nor does the statement in Citizens United rejecting the “contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy,” 558 U.S. at 369, 

dictate the result here. In that passage, the Court 
12

relied on Buckley’s ruling upholding disclosure requirements for independent expenditures, which 

Buckley construed as applicable only to advertisements containing express advocacy. 424 U.S. at 80.2 

Citizens United gave no reason for departing from 

Buckley’s careful analysis, and should not be read as 

casting aside Buckley’s protection of issue speech. 

C. Congress Asserted a Disclosure Interest Only in “Sham Issue Ads.” 

The legislative history of the disclosure provisions shows that Congress was aiming them at socalled “sham issue ads.” Those “sham issue advertisements” were, Congress believed, “campaignrelated” but carefully worded to avoid use of words 

such as “vote for,” “elect,” “support,” “cast your ballot 

for,” “Smith for Congress,” “vote against,” “defeat,” or 

“reject.” Buckley, 424 U.S. at 44 n.52. Senator Russ 

 

2 Citizens United also noted that “three Justices [in McConnell] 

who would have found § 441b to be unconstitutional nonetheless 

voted to uphold BCRA’s disclosure and disclaimer requirements.” 558 U.S. at 369. McConnell was a facial challenge, 

and the Court upheld the electioneering communications provision because it was directed at “sham issue ads.” See 

McConnell, 540 U.S. at 193 (“Not only can advertisers easily 

evade the [express advocacy] line by eschewing the use of magic 

words, but they would seldom choose to use such words even if 

permitted. . . . [T]he resulting advertisements . . . are no less 

clearly intended to influence the election.”). The three dissenting justices would have upheld the disclosure provision in section 201 because it “substantially relate[s] to the other interest 

the majority details,” and “[t]his assures its constitutionality.” 

Id. at 321 (Kennedy, J., joined by Rehnquist, C.J., and Scalia, J., 

dissenting in part). 
13

Feingold, co-sponsor of BCRA in the Senate, said the 

“net result” of the disclosure provisions “will be that 

the public will learn through this amendment who 

the people are who are giving large contributions to 

groups to try to influence elections.” 147 Cong. Rec. 

S3070-01, S3072, 2001 WL 303410 (Mar. 29, 2001) 

(emphasis added). Senator James Jeffords emphasized that “Corruption will be deterred when the public and the media are able to see clearly who is trying 

to influence the election.” 147 Cong. Rec. S3034 (daily 

ed. Mar. 28, 2001) (emphasis added), quoted in

McConnell v. FEC, 251 F.Supp. 2d 176, 243 n.75 

(D.D.C. 2003) (opinion of Henderson, J.), aff’d in part, 

rev’d in part, 540 U.S. 93 (2003). Representative 

Sander Levin argued that the disclosure provisions 

were aimed at political advertisements that fell outside the existing disclosure regime, and that the new 

disclosure provisions would apply to “ads that are 

clearly campaign ads.” 144 Cong. Rec. H4866 (daily 

ed. June 19, 1998) (emphasis added), quoted in

McConnell, 251 F. Supp. 2d at 243 n.75. Senator 

Olympia Snowe decried “stealth advocacy” and the 

increasing amounts of money “spent on so-called 

sham ads in the election of 2000 . . . to skirt the disclosure laws because they do not use the magic words 

‘vote for or against. . .” Statement of Senator Olympia 

Snowe, 147 Cong. Rec. S3070-01, 3074, 2001 WL 

303410 (Mar. 29, 2001) (emphasis added). 

To avoid the constitutional issue, yet still 

achieve the congressional intent, and to reconcile Citizens United with Buckley, the Court could construe 

the disclosure regime as applicable only to campaignrelated advertisements that meet the statutory defi-
14

nition of “electioneering communications.” See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. 

& Const. Trades Council, 485 U.S. 568, 575 (1988) 

(“[W]here an otherwise acceptable construction of a 

statute would raise serious constitutional problems, 

the [Supreme] Court will construe the statute to 

avoid such problems unless such construction is 

plainly contrary to the intent of Congress.”) (citation 

omitted). The Institute’s advertisement would not 

fall within a disclosure regime so limited. 

II. THE INSTITUTE’S ADVERTISEMENT IS 

NON-CAMPAIGN ISSUE SPEECH AT THE 

CORE OF THE FIRST AMENDMENT. 

The Institute’s advertisement advocates passage of a pending bill, the Justice Safety Valve Act, 

Senate Bill No. 619. Discussion of such an issue of 

public import is at the very heart of the “‘profound 

national commitment to the principle that debate on 

public issues should be uninhibited, robust, and 

wide-open.’” Buckley, 424 U.S. at 17 (citation omitted). 

A. The Institute’s Advertisement Is Issue 

Speech, Not Campaign Advocacy. 

The advertisement at issue here is striking for 

its similarity to the advertisement before the Court 

in FEC v. Wisconsin Right to Life, 551 U.S. 449 

(2007) (“WRTL II”). In WRTL II, this Court upheld 

an as applied challenge to the prohibition of corporate-funded advertisements in BCRA section 203. 

Each of the three advertisements met the definition 

of “electioneering communication” in section 201(a) of 
15

BCRA, now codified at 52 U.S.C. § 30104(f)(3)—each 

mentioned an officeholder who was currently a federal candidate and one who was not, was targeted to 

that candidate’s relevant electorate, and would be 

aired within the “blackout periods” specified in the 

definition. Nevertheless, the Court recognized that 

the government interest in regulating such speech 

arose only in the context of campaign-related speech -

- that is, express advocacy or the functional equivalent of express advocacy. WRTL II, 551 U.S. at 465 

(opinion of Roberts, C.J.) 

Announcing the judgment of the Court, the 

Chief Justice concluded that the advertisements were 

“plainly not the functional equivalent of express advocacy” for two reasons: 

First, their content is consistent with 

that of a genuine issue ad: The ads focus 

on a legislative issue, take a position on 

the issue, exhort the public to adopt that 

position, and urge the public to contact 

public officials with respect to the matter. Second, their content lacks indicia 

of express advocacy: The ads do not 

mention an election, candidacy, political 

party, or challenger; and they do not 

take a position on a candidate’s character, qualifications, or fitness for office. 

Id. at 470. The advertisement in this case follows the 

format of the WRTL II advertisements very closely. 

As with the WRTL II advertisements, “one would not 

even know from the ads whether [either named Sen-
16

ator] supported or opposed” the Justice Safety Valve 

Act. Id. at 471 n.6. As the Chief Justice wrote in 

WRTL II: “This Court has never recognized a compelling interest in regulating ads, like WRTL’s, that are 

neither express advocacy nor its functional equivalent.” Id. at 476. 

Like the advertisements addressed in WRTL 

II, the Institute’s advertisement is pure issue speech. 

The Congressional definition of “electioneering communication” creates, in both instances, a misnomer: 

The advertisements here and in WRTL II have nothing to do with “electioneering.” This is because 

“[i]ssue advocacy conveys information and educates. 

An issue ad’s impact on an election, if it exists at all, 

will come only after the voters hear the information 

and choose—uninvited by the ad—to factor it into 

their voting decisions.” Id. at 470. And just as in 

WRTL II, the government may not regulate the Institute’s advertisement, and suppress its speech, even if 

the suppression is accomplished by requiring disclosure of the Institute’s donors. 

B. The First Amendment Places a High 

Value on Anonymous Issue Speech. 

This Court has recognized the critical value 

and this Nation’s great historical tradition of anonymous speech. In McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995), the Court held that an Ohio 

statute could not, consistent with the Free Speech 

Clause, require Ms. McIntyre to disclose herself as 

the publisher of anonymous leaflets. As here, Ms. 

McIntyre was independently addressing an issue rather than advocating a specific candidate. The Court 
17

distinguished “candidate elections,” in which “the 

Government can identify a compelling state interest 

in avoiding the corruption that might result from 

campaign expenditures.” Id. at 356. It ruled, however, that disclosures of candidate financial support 

“are supported by an interest in avoiding the appearance of corruption that has no application to this 

case.” Id. at 354 (emphasis added). 

The McIntyre Court noted that speakers may 

require anonymity for many reasons. Among those 

reasons were, of course, “fear of economic or official 

retaliation, . . . concern about social ostracism, or 

merely . . . a desire to preserve as much of one’s privacy as possible.” 514 U.S. at 341–42. Quite apart 

from any threat of reprisal, a “personally unpopular” 

speaker may believe her ideas will be more persuasive if her readers are unaware of her identity. Id. at 

342. In this last situation, a requirement to prove 

fear of retaliation is irrelevant. Anonymity is essential to the message; it is part of the content. See id.

at 342 (“an author’s decision to remain anonymous, 

like other decisions concerning omissions or additions 

to the content of a publication, is an aspect of the 

freedom of speech protected by the First Amendment.”). 

Concurring, Justice Thomas carefully recounted the great American tradition of anonymous 

speech, from the 1735 trial of John Peter Zenger to 

extensive anonymous speech during the Revolutionary and Ratification periods. 514 U.S. at 360–67 

(Thomas, J., concurring). This careful review led 

Justice Thomas to the conclusion that “the Framers 
18

understood the First Amendment to protect an author’s right to express his thoughts on political candidates or issues in an anonymous fashion.” Id. at 

371. 

McIntyre, in turn, relied on Talley v. California, 362 U.S. 60 (1960), in which the Court struck 

down Los Angeles City ordinances that required any 

handbill to contain the name and address of the author. The Court analogized the disclosure requirement in Talley to a handbill licensing requirement 

struck down in Lovell v. Griffin, 303 U.S. 444 (1938). 

See 362 U.S. at 64. This recognition that disclosure 

of authorship can suppress speech just as effectively 

as a licensure requirement supports the analogy between the compelled disclosure at issue in this case 

and the outright prohibition of the advertisements in 

WRTL II. See also Watchtower Bible & Tract Soc. of 

N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 166 

(2002) (local canvassing ordinance was facially invalid because, among other reasons, it impinged on the 

ability of canvassers to operate anonymously); Buckley v. American Constitutional Law Foundation, Inc., 

525 U.S. 182, 200 (1999) (requirement that petition 

circulators wear an identification badge was invalid 

because it “discourages participation in the petition 

circulation process by forcing name identification 

without sufficient cause”). The value of anonymous 

speech in the advocacy of issues cannot be gainsaid.3

 

3 This Court has referred to the “right to remain anonymous.” 

McIntyre, 514 U.S. at 357; McConnell v. FEC, 540 US 93, 276 

(2003) (Thomas, J., dissenting) (referring to “right to anony-
19

III. NEITHER CONGRESS NOR THE FEC HAS 

IDENTIFIED A SUFFICIENT INTEREST 

TO OVERRIDE THE FIRST AMENDMENT 

PROTECTION OF THE INSTITUTE’S 

DONORS. 

This case does not challenge the validity of disclosure requirements addressed to contributions or 

expenditures “for the purpose of influencing” a federal election. See Buckley, 424 U.S. at 60–84. Rather, 

this case involves disclosure of something materially 

different: issue speech that is not the functional 

equivalent of express advocacy or campaign-related. 

Compelling disclosure in this situation does not survive First Amendment scrutiny. 

A. This Court’s Precedents Do Not Foreclose the Institute’s Argument. 

The district court believed this Court’s prior 

rulings in McConnell, WRTL II, and Citizens United

foreclose the Institute’s argument. To the contrary, 

McConnell was a facial challenge to the electioneering communications provision, but as this Court has 

unanimously held, McConnell left open the possibility of as applied challenges like this one. See Wisconsin Right to Life v. FEC, 546 U.S. 410, 412 (2006) 

(per curiam) (“WRTL I”) (“In upholding § 203 against 

a facial challenge, we did not purport to resolve future as-applied challenges.”). And, indeed, WRTL II

upheld an as-applied challenge to the prohibition of 

advertising in the electioneering communications 

 

mous speech”). See also Van Hollen Jr., 811 F.3d at 499–500 

(referring to “right to anonymity”). 
20

provisions; WRTL II did not, however, address the 

applicability of the disclosure provisions. 551 U.S. at 

482. Neither decision addressed the issue here. 

As previously discussed (Part I.B above), Citizens United did not overrule the protections for noncampaign issue speech set forth in Buckley. 

B. None of the Interests Identified by 

the Government Are Correlated to 

Compelled Disclosure of Donors Supporting Non-Campaign Issue Speech. 

Even if the “exacting scrutiny” test used in Citizens United and other disclosure cases is applied,4

the First Amendment forbids application of the restrictions to the Institute’s advertisement. Exacting 

scrutiny is a “strict test.” Buckley, 424 U.S. at 66. 

The government must prove a “substantial relation” 

between the disclosure requirement and a “sufficiently important” government interest. Citizens United, 

558 U.S. at 366. None of the interests identified by 

 

4 The Court might also consider whether disclosure provisions 

that have the actual effect of suppressing issue speech should be 

evaluated under strict scrutiny, as was the prohibition in WRTL 

II. WRTL II, 551 U.S. at 464 (opinion of Roberts, C.J.). If a donor is committed to anonymity, the statute bars any speech that 

qualifies as an “electioneering communication.” The loss of 

speech harms both the speaker and the listeners deprived of the 

speech. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 

777 n.12 (1978) (“The Court has declared . . . that ‘speech concerning public affairs is more than self-expression; it is the essence of self-government.’”) (citation omitted). 
21

the district court are correlated with the Institute’s 

non-campaign-related issue advertisement. 

Apart from its mistaken view that the Institute’s arguments are foreclosed by this Court’s precedent, the district court identified two other reasons 

for denying First Amendment protection. First, it 

held that distinguishing between campaign-related 

electioneering communications and genuine issue 

advertisements “is entirely unworkable.” App. 24. 

As shown, Buckley made no mention of this concern 

when it held non-campaign-related issue speech protected forty years ago. (See Part I.A. above). Further, the Court flatly rejected this argument in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 

(2002): “The Government may not suppress lawful 

speech as the means to suppress unlawful speech. 

Protected speech does not become unprotected merely 

because it resembles the latter. The Constitution requires the reverse.” Or, as the Chief Justice put it in 

WRTL II, “[w]here the First Amendment is implicated, the tie goes to the speaker, not the censor.” 551 

U.S. at 474 (opinion of Roberts, C.J.) Protected 

speech may not be regulated as a mere convenience 

to assist with the regulation of unprotected speech. 

Next, the court identified three government interests that, it believed, would outweigh the Institute’s First Amendment right. Those interests were 

“‘providing the electorate with information, deterring 

actual corruption and avoiding any appearance 

thereof, and gathering the data necessary to enforce 

more substantive electioneering restrictions.’” App. 

30 (quoting McConnell, 540 U.S. at 196). These in-
22

terests, identified in McConnell as sufficient to justify 

regulating “sham issue ads,” do not correlate at all to 

the Institute’s non-campaign-related issue advertisement. 

The informational interest is not sufficiently 

weighty, standing alone, to justify suppression of 

speech. The Court in McIntyre addressed this very 

point: “The simple interest in providing voters with 

additional relevant information does not justify a 

state requirement that a writer make statements or 

disclosures she would otherwise omit.” McIntyre, 514 

U.S. at 348.5 

Buckley found the informational interest sufficient to justify disclosure only for those expenditures 

that are “unambiguously campaign related but would 

not otherwise be reported because [they take] the 

form of independent expenditures or of contributions 

to an individual or group not itself required to report 

the names of its contributors.” 424 U.S. at 81. Such 

disclosure “helps voters to define more of the candidates’ constituencies.” Id.

The district court broadened this informational 

interest to encompass any message to constituents 

during election season that “points a finger at an elec-

 

5 The Court quoted a New York decision striking down a similar statute: “‘People are intelligent enough to evaluate the 

source of an anonymous writing . . . They can evaluate its anonymity along with its message, as long as they are permitted, as 

they must be, to read that message.’” 514 U.S. at 348 n.11 

(quoting New York v. Duryea,351 N.Y.S.2d 978, 996 (1974)). 
23

toral candidate.” App. 23 (emphasis added). The 

mere description of the interest is chilling. Like the 

antiquated crime of lèse-majesté, speaking ill of the 

King,6 the requirement that anyone who deigns to 

mention a federal candidate in a paid broadcast during an election season must step forward and identify 

himself suppresses public policy discussion but advances no legitimate government interest. 

The anti-corruption interest asserted by the 

district court is also not correlated to the Institute’s 

advertisement because the Institute will air its advertisement independently of any candidate. As the 

Court made clear in Citizens United, even expenditures that are the functional equivalent of express 

advocacy, and thus clearly campaign-related, pose no 

threat of corruption if aired independently. Citizens 

United, 558 U.S. at 356–57 (“[I]ndependent expenditures. . .do not give rise to corruption or the appearance of corruption.”). See also Buckley v. Valeo, 424 

U.S. at 45 (1976) (“We find that the governmental interest in preventing corruption and the appearance of 

corruption is inadequate to justify [the Federal Election Campaign Act’s] ceiling on independent expenditures.”). 

 

6 See Ilya Shapiro, Trevor Burrus, Gabriel Latner, Truthiness 

and the First Amendment, 16 U. PA. J. CONST. L. HEIGHTENED 

SCRUTINY 51, 53 (2014) (describing “a speech-crime known as 

lèse-majesté: any speech or action that insulted the monarchy or 

offended its dignity,” which was considered by monarchs to be 

an act of treason). 
24

The third purported interest, in enforcing existing law, cannot justify imposing restrictions on 

otherwise lawful conduct. The government cannot 

infringe on constitutionally-protected speech simply 

to help it enforce the campaign finance laws. “[S]uch 

a prophylaxis-upon-prophylaxis approach to regulating expression” is inconsistent with constitutional 

scrutiny. WRTL II, 551 U.S. at 479 (opinion of Roberts, C.J.); see Ashcroft, 535 U.S.at 255 (“The Government may not suppress lawful speech as the 

means to suppress unlawful speech.”). If a violation 

of an existing regulation occurs, the government can 

seek disclosure of donor names at that time. As the 

Court in McIntyre recognized, “the absence of the author’s name on a document does not necessarily protect either that person or a distributor of a forbidden 

document from being held responsible for compliance 

with the Election Code.” McIntyre, 514 U.S. at 352–

53. 

Finally, even though disclosure may appear 

less restrictive than the outright prohibition at issue 

in WRTL II, App. 20–22, the effect here is the same. 

For their own good reasons, the donors to the Institute desire to remain anonymous; anonymity is a key 

substantive component of the message. See McIntyre, 514 U.S. at 342 (“decision to remain anonymous 

[is] like other decisions concerning omissions or additions to the content of a publication”). The speech 

will not occur under the burden of disclosure. 

Buckley foresaw that an effort to regulate 

campaign speech could sweep in non-campaign issue 

speech, warning that “the distinction between discus-
25

sion of issues and candidates and advocacy of election 

or defeat of candidates may often dissolve in practical 

application.” Buckley, 424 U.S. at 42. For this reason, it allowed disclosure only with regard to campaign-related speech. 

Recent events demonstrate the risks posed by 

the expansive application of disclosure based on 

merely “point[ing] a finger at an electoral candidate.” 

App. 23. One of the most controversial issues for the 

past several years has been the Patient Protection 

and Affordable Care Act, Pub. L. No. 111-148, 124 

Stat. 119 (2010), popularly known as “ObamaCare.” 

With a gap of only 60 days in June and July 2012, 

any nationwide advertisement using the term 

“ObamaCare” from December 4, 2011 (30 days before 

the Iowa caucuses) through November 6, 2012 (Election Day) would have triggered the disclosure regime 

for electioneering communications in at least one 

state, even if the advertisement did no more than offer a health insurance policy.7 See FEC Advisory Op. 

No. 2012-19, at 3 (June 13, 2012), available at 

http://saos.fec.gov/aodocs/AO%202012-19.pdf (advertisement referring to “Obamacare” fit definition of 

electioneering communication). 

This issue will again come into sharp relief in 

2020 if Donald J. Trump seeks re-election. Not only 

 

7 The only “open” period would have occurred after the final 

primaries on June 5, 2012, to August 4, 2013 (30 days before the 

Democratic National Convention began on September 4, 2012). 

The Convention ended on September 6, and the 60-day general 

election blackout period began on September 7. 
26

will genuine issue advertisements supporting or opposing his actions as President fall within the disclosure regime, but so also might any commercial advertisement merely mentioning one of his varied business interests. 

In short, the disclosure regime for electioneering communications sweeps too much speech, including core issue speech with no connection to a campaign, into a regime created to regulate so-called 

“sham issue ads.” The First Amendment does not 

permit this overreach. 

 
27

CONCLUSION 

For the reasons set forth above and in the Jurisdictional Statement of the Appellant Independence 

Institute, Senate Majority Leader Mitch McConnell 

respectfully urges this Court to note probable jurisdiction and set the case for briefing and argument. 

Respectfully Submitted, 

Bobby R. Burchfield 

 Counsel of Record 

Matthew M. Leland 

Chandra M. Kurien 

Barrett R.H. Young 

KING & SPALDING LLP 

1700 Pennsylvania Ave. NW 

Washington, DC 20006 

(202) 626-5524 

bburchfield@kslaw.com 

Counsel for Amicus Curiae