UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

INDEPENDENCE INSTITUTE, )

)

Plaintiff, )

) No. 1:14-CV-01500-CKK

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

__________________________________________)

BRIEF AMICI CURIAE OF CAMPAIGN LEGAL CENTER, 

DEMOCRACY 21 AND PUBLIC CITIZEN, INC. IN SUPPORT OF DEFENDANT AND 

IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Fred Wertheimer

(DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, D.C. 20036 

Tel.: (202) 429-2008

Donald J. Simon

(DC Bar No. 256388)

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, D.C. 20005

Tel.: (202) 682-0240

Scott L. Nelson

(DC Bar No. 413548)

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, D.C. 20009

(202) 588-1000

Counsel for Amici Curiae

J. Gerald Hebert

(VA Bar No. 38432)

Tara Malloy

(DC Bar No. 988280)

Lawrence M. Noble

(DC Bar No. 244434)

Megan P. McAllen

(DC Bar No. 1020509)

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, D.C. 20002

Tel.: (202) 736-2200

Counsel for Amici Curiae

*Counsel of Record

Case 1:14-cv-01500-CKK Document 21 Filed 09/22/14 Page 1 of 31
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TABLE OF CONTENTS

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

STATEMENT OF INTEREST.....................................................................................................1

SUMMARY OF ARGUMENT.....................................................................................................1

ARGUMENT..................................................................................................................................5

I. The Supreme Court Has Upheld the Electioneering Communications 

Disclosure Provisions Against Both Facial and As-Applied Challenges.................5

A. McConnell Upheld BCRA’s Disclosure Provisions on Their Face as to 

“the Entire Range of Electioneering Communications” ....................................5

B. Citizens United Upheld BCRA’s EC Disclosure Provisions as Applied to 

Advertisements That Were Plainly Not the Functional Equivalent of 

Express Advocacy..............................................................................................7

C. Plaintiff Can Provide No Legal Authority to Support Its Position ..................10

i. Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975)................................11

ii. Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 

2014) ....................................................................................................13

II. The Supreme Court Has Repeatedly Approved of Measures Requiring 

Disclosure in Connection to “Issue Advocacy” .......................................................16

III. Plaintiff’s As-Applied Challenge to the BCRA Disclosure Provisions Fails ........20

A. Plaintiff’s Status as a Section 501(c)(3) Organization Is Immaterial to the 

Constitutionality of a Disclosure Requirement................................................21

B. Under Existing FEC Regulations, Plaintiff Is Required to Report Only 

Those Donors Who Earmark Their Funds for Electioneering 

Communications..............................................................................................23

CONCLUSION ............................................................................................................................25

Case 1:14-cv-01500-CKK Document 21 Filed 09/22/14 Page 2 of 31
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TABLE OF AUTHORITIES

*Cases and authorities chiefly relied upon are marked with an asterisk

Cases:

Buckley v. Valeo, 424 U.S. 1 (1976)...................................................................................... passim

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ..............................................................11, 12, 13

Cal. Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003)...........................................19, 20

Ctr. for Indv’l Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) ......................14, 16, 19, 20, 25

Ctr. for Indv’l Freedom v. Tennant, 706 F.3d 270 (4th Cir. 2013)................................................25

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) ......................................19

*Citizens United v. FEC, 558 U.S. 310 (2010)...................................................................... passim

Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008)..........................................................9

Comm’n on Ind. Colleges and Univs. v. N.Y. Temp. State Comm’n, 534 F. Supp. 489 

(N.D.N.Y. 1982) ............................................................................................................................18

Family PAC v. McKenna, 685 F.3d 800 (9th Cir. 2011) .........................................................20, 25

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007).........................................................7, 9

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)..............................................18, 19

Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir. 1996) .............................18

Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010)...................................8, 16

*McConnell v. FEC, 540 U.S. 93 (2003)............................................................................... passim

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003).................................................................6

Minn. State Ethical Practices Bd. v. NRA, 761 F.2d 509 (8th Cir. 1985)................................16, 20

Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009)....................................................17, 18

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011).....................................................8

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (three-judge court), 

aff’d, 130 S. Ct. 3544 (2010) ...................................................................................................20, 21

Seminole Tribe v. Florida, 517 U.S. 44 (1996) .............................................................................15

Case 1:14-cv-01500-CKK Document 21 Filed 09/22/14 Page 3 of 31
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Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005).........22, 23

Van Hollen v. FEC, 851 F. Supp. 2d 69 (D.D.C. 2012), rev’d, Ctr. for Indv’l Freedom v. 

Van Hollen, 694 F.3d 108 (D.C. Cir. 2012), on remand No. 1:11-cv-00766 (argument 

heard, Oct. 29, 2013)..................................................................................................................4, 24

Van Hollen v. FEC, No. 12-5117, 2012 WL 1758569 (D.C. Cir. May 14, 2012) 

(unpublished) ...........................................................................................................................24, 25

Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118 (2d Cir. 2014)...........................................16

United States v. Duvall, 740 F.3d 604 (D.C. Cir. 2013)................................................................15

United States v. Harriss, 347 U.S. 612 (1954) ........................................................................17, 18

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014)............................13, 14, 15

Worley v. Fla. Sec’y of State, 717 F.3d 1238 (11th Cir. 2013), cert. denied, 134 S. Ct. 529 

(U.S. 2013).....................................................................................................................................19

Statutes and Regulations:

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 ..............................2

Federal Election Campaign Act Amendments of 1974, Pub. L. 93-443, 88 Stat. 1263 ................13

2 U.S.C. § 434(f)........................................................................................................................1, 12

26 U.S.C. § 501(c)(3).....................................................................................................4, 21, 22, 23

26 U.S.C. § 501(c)(4).....................................................................................................4, 21, 22, 23

26 U.S.C. § 6104(d)(3)(A).......................................................................................................22, 23

52 U.S.C. § 30102(h).....................................................................................................................13

52 U.S.C. § 30103..........................................................................................................................13

52 U.S.C. § 30104(a) .....................................................................................................................13

52 U.S.C. § 30104(b).....................................................................................................................13

52 U.S.C. § 30104(f)............................................................................................................1, 12, 13

52 U.S.C. § 30104(f)(1).................................................................................................................21

52 U.S.C. § 30104(f)(2).................................................................................................................21

52 U.S.C. § 30104(f)(2)(E)............................................................................................................24

Case 1:14-cv-01500-CKK Document 21 Filed 09/22/14 Page 4 of 31
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52 U.S.C. § 30104(f)(2)(F) ............................................................................................................24

52 U.S.C. § 30104(f)(3)...................................................................................................................2

Administrative Materials:

11 C.F.R. § 104.20(c)(9)..........................................................................................................23, 24

Explanation and Justification for Final Rules on Electioneering Communications, 72 Fed. 

Reg. 72,899 (Dec. 26, 2007)....................................................................................................23, 24

Rev. Rul. 2007-41, 2007-1 C.B. 1421 ...........................................................................................23

Miscellaneous Resources:

Br. for Appellant, Citizens United v. FEC, 558 U.S. 310 (No. 08-205)................................3, 9, 15

Br. for Appellee, Citizens United v. FEC, 558 U.S. 310 (No. 08-205) .....................................9, 15

Br. for Appellants McConnell et al., McConnell v. FEC, 540 U.S. 93 (No. 02-1674)....................5

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STATEMENT OF INTEREST

Amici curiae Campaign Legal Center, Democracy 21 and Public Citizen, Inc. are 

nonprofit organizations that work to strengthen the laws governing campaign finance and 

political disclosure. Amici have participated in several of the Supreme Court cases cited by 

plaintiff as forming the basis of its First Amendment challenge, including McConnell v. FEC, 

540 U.S. 93 (2003) and Citizens United v. FEC, 558 U.S. 310 (2010). Amici thus have 

substantial expertise in the legal issues raised in this case, and a demonstrated interest in the 

challenged federal disclosure provisions. 

Both parties have consented to amici’s participation in this case.

SUMMARY OF ARGUMENT

Plaintiff Independence Institute challenges the constitutionality of the federal 

“electioneering communication” (“EC”) disclosure provisions, 52 U.S.C. § 30104(f) (formerly 

codified at 2 U.S.C. § 434(f)), as applied to an ad it proposes to run on broadcast television

shortly before the 2014 general election that refers to U.S. Senators Mark Udall and Michael 

Bennet. Senator Udall is a candidate for re-election in 2014. As such, the ad constitutes an EC

and the provisions at issue here require plaintiff to make certain disclosures about its spending 

for the ad.

The crux of plaintiff’s argument is that its ad does not constitute express advocacy or its 

functional equivalent, and disclosure laws must be limited to these two forms of 

communications. But plaintiff’s case fails for the simple reason that that the Supreme Court 

specifically considered, and rejected, this precise argument in both McConnell and Citizens 

United.

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Congress enacted the disclosure law at issue here as part of the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, to “correct the flaws” of the 

disclosure regime established by the Federal Election Campaign Act (“FECA”). McConnell, 540 

U.S. at 193-94. Concerned about vague language in the original FECA disclosure provisions, the 

Court in Buckley v. Valeo, 424 U.S. 1 (1976), had construed these earlier provisions “to reach 

only . . . communications that expressly advocate[d] the election or defeat of a clearly identified 

candidate.” Id. at 80 (emphasis added). As a result, the Court narrowed the law to the point that 

groups engaged in electoral advocacy could easily evade disclosure simply by omitting “magic 

words” of express advocacy. To address this problem, Congress enacted the law challenged 

here, “coin[ing] a new term, ‘electioneering communications,’ to replace the narrowing 

construction of [the Federal Election Campaign Act’s] disclosure provisions adopted by [the 

Supreme] Court in Buckley.” McConnell, 540 U.S. at 189. And to avoid the vagueness concerns 

that led to Buckley’s narrowing construction, Congress defined “electioneering communication” 

by reference to clear, objective criteria: an “electioneering communication” is a “broadcast, 

cable, or satellite communication” that “refers to a clearly identified federal candidate,” is 

“targeted to the relevant electorate,” and airs within sixty days of general election or thirty days 

of a primary election or nominating convention. 52 U.S.C. § 30104(f)(3). 

The Supreme Court upheld the EC disclosure requirements first on their face in 

McConnell, and then as applied to communications containing neither express advocacy nor its 

functional equivalent in Citizens United. 

In McConnell, much as plaintiff does here, the challengers attacked the EC provisions on 

grounds that they regulated “‘communications’ that do not meet Buckley’s definition of express 

advocacy.” 540 U.S. at 190. The Court flatly rejected this assertion, however, and made clear 

Case 1:14-cv-01500-CKK Document 21 Filed 09/22/14 Page 7 of 31
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that “the express advocacy limitation . . . was the product of statutory interpretation rather than a 

constitutional command.” Id. at 191-92. The Court consequently upheld the EC disclosure 

provisions on their face as to “the entire range of electioneering communications,” regardless of 

whether such communications constituted express advocacy or the functional equivalent of 

express advocacy. Id. at 196.

In Citizens United, the EC disclosure provisions were again challenged, this time as

applied to Citizens United’s advertisements promoting a documentary about then-candidate 

Hillary Clinton. The group argued that, because the ads took no position on any candidates’ 

suitability for office, they were not the equivalent of express advocacy and that therefore 

disclosing the group’s funders “would not provide [the public] with information relevant to the 

electoral process.” Br. for Appellant at 15, 51, Citizens United, 558 U.S. 310 (No. 08-205). The 

Supreme Court found that although the ads may not have qualified as express advocacy or its 

functional equivalent, the public nevertheless had “an interest in knowing who is speaking about 

a candidate shortly before an election.” 558 U.S. at 369. In so holding, the Supreme Court 

specifically “reject[ed] Citizens United’s contention that the disclosure requirements must be 

limited to speech that is the functional equivalent of express advocacy.” Id. at 369.

This challenge is no more than an attempt to relitigate an issue squarely put to rest by

McConnell and Citizens United. Plaintiff makes no secret of its intent, asserting openly that the 

“terse” section in Citizens United upholding the EC disclosure provisions can be dismissed as 

“dicta.” Memorandum of Law in Support of Motion for a Preliminary Injunction (Sept. 4, 2014) 

(“PI Br.”) at 5. According to plaintiff, it is unconstitutional to impose BCRA’s contributor 

disclosure provisions—which require a group that spends more than $10,000 on “electioneering 

communications” in a year to disclose those contributors giving $1,000 or more—if the EC

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constitutes “pure” or “genuine” issue advocacy. See PI Br. at 6, 14. But the Citizens United

Court unambiguously rejected exactly this attempt to limit the EC disclosure requirements to

express advocacy or its functional equivalent. Plaintiff’s entire 26-page brief is an effort to 

persuade this Court that the eight Members of the Supreme Court who upheld the disclosure 

provisions in Citizens United did not mean what they said. 

Furthermore, plaintiff offers no basis to distinguish its case from Citizens United. That 

plaintiff is organized under Section 501(c)(3) of the Internal Revenue Code, unlike Citizens 

United, which was organized under Section 501(c)(4), is of no import. The Supreme Court has 

never premised the constitutionality of a disclosure requirement on the tax status of the spender. 

Similarly irrelevant is whether plaintiff is required to report all of its donors of over $1,000, as 

BCRA requires, or only those donors who earmarked their contributions for the purpose of 

financing ECs, as permitted by a Federal Election Commission (FEC) rule. The Supreme Court 

upheld the statutory EC disclosure provisions prior to the adoption of the FEC rule and has never 

suggested that comprehensive donor disclosure is constitutionally suspect. McConnell, 540 U.S. 

at 194-202.1

In short, plaintiff’s extraordinary request that this Court disregard two controlling

Supreme Court decisions to strike down the EC disclosure provisions as applied to its 

advertisement should be rejected, its motion for preliminary injunction denied and its complaint 

dismissed. 

 

1 The fidelity of the FEC rule to the statute is being challenged in a pending case in this district. 

Van Hollen v. FEC, 851 F. Supp. 2d 69 (D.D.C. 2012), rev’d, Ctr. for Indv’l Freedom v. Van Hollen, 694 

F.3d 108 (D.C. Cir. 2012), on remand No. 1:11-cv-00766 (argument heard, Oct. 29, 2013). Some of the 

amici here are counsel to the plaintiff in that case. 

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ARGUMENT

I. The Supreme Court Has Upheld the Electioneering Communications Disclosure 

Provisions Against Both Facial and As-Applied Challenges.

Plaintiff’s case is squarely foreclosed by McConnell and Citizens United. The Supreme 

Court has twice considered—and twice upheld—the challenged BCRA disclosure provisions: 

first facially in McConnell, 540 U.S. at 196, and then as applied in Citizens United, 558 U.S. at 

367. There is no justification for this Court to revisit a question that the Supreme Court has 

already answered. 

A. McConnell Upheld BCRA’s Disclosure Provisions on Their Face as to “the 

Entire Range of Electioneering Communications.”

The “major premise” of the facial challenge in McConnell was that “Buckley drew a 

constitutionally mandated line between express advocacy and so-called issue advocacy.” 540 

U.S. at 190. The McConnell plaintiffs argued that disclosure requirements could not 

constitutionally extend to electioneering communications “without making an exception for 

those ‘communications’ that do not meet Buckley’s definition of express advocacy.” Id.; see also

Br. for Appellants McConnell et al. at 44-45, McConnell, 540 U.S. 93 (No. 02-1674). But the 

Supreme Court flatly rejected this argument, finding that neither its prior precedents nor the First 

Amendment “requires Congress to treat so-called issue advocacy differently from express 

advocacy” in the disclosure context. McConnell, 540 U.S. at 194. 

The McConnell Court noted that Buckley had found the “‘for the purpose of . . .

influencing’ a federal election” language in FECA’s disclosure provisions vague and had 

consequently construed the statute to reach only express advocacy communications. Id. at 191

(internal quotation marks omitted). But the Court explained that its decision in Buckley was 

“specific to the statutory language” before it, id. at 192-93, and refused the plaintiffs’ attempts to

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elevate Buckley’s express advocacy limitation—which was “an endpoint of statutory 

interpretation”—into “a first principle of constitutional law.” Id. at 190. Ultimately, the 

vagueness concerns “that persuaded the Court in Buckley to limit FECA’s reach to express 

advocacy [were] simply inapposite” with respect to BCRA’s definition of “electioneering 

communication,” which was “both easily understood and objectively determinable.” Id. at 194.

The Court thus upheld BCRA’s EC disclosure provisions on their face, finding that “the 

important state interests that prompted the Buckley Court to uphold FECA’s disclosure 

requirements”—providing the electorate with information, deterring corruption, and enabling 

enforcement of the law—“apply in full to BCRA.” Id. at 196. BCRA serves these interests, the 

Court held, because it requires speakers “to reveal their identities so that the public is able to 

identify the source of the funding behind” candidate-related speech that occurs in close 

proximity to an election. Id. (quoting McConnell v. FEC, 251 F. Supp. 2d 176, 237 (D.D.C. 

2003) (per curiam)). 

Plaintiff highlights that the McConnell Court “assume[d] that the interests that justify the 

regulation of campaign speech might not apply to the regulation of genuine issue ads,” and 

argues that as a result, the Court “left open the possibility for future, as-applied challenges” to 

the EC disclosure provisions. PI Br. at 12 (citing McConnell, 540 U.S. at 206 n. 88). But 

plaintiff fails to acknowledge that the Court made that observation in discussing BCRA’s ban on

expenditures, not its disclosure requirements, and the McConnell Court expressly applied 

different constitutional standards to the two types of laws. 540 U.S. at 205, 231. McConnell’s 

mention of “genuine issue ads” did not apply to disclosure laws.

Plaintiff also fails to note that the Court upheld the EC disclosure requirements as “to the 

entire range of ‘electioneering communications,’” id. at 196, even though it had acknowledged 

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that the definition of “electioneering communications” potentially encompassed both express 

advocacy and “genuine issue ads.” Id. at 206 (noting that “precise percentage of issue ads that 

clearly identified a candidate and were aired during those relatively brief preelection timespans 

but had no electioneering purpose is a matter of dispute between the parties”). In so holding, the 

majority indicated that the governmental interests that had led the Buckley Court to uphold 

FECA’s disclosure provisions also supported disclosure of electioneering communications, even 

if some percentage of “genuine issue ads” were covered by the EC disclosure requirement.

B. Citizens United Upheld BCRA’s EC Disclosure Provisions as Applied to 

Advertisements That Were Plainly Not the Functional Equivalent of Express 

Advocacy.

Citizens United confirmed that the EC disclosure provisions were constitutional even as

applied to the small “percentage” of ads that were not express advocacy or the functional 

equivalent of express advocacy.

Citizens United’s challenge to the EC disclosure provisions relied principally on FEC v. 

Wisconsin Right To Life, Inc., 551 U.S. 449 (2007) (“WRTL”), which addressed BCRA’s limits 

on expenditures, not its disclosure requirements. Id. at 457. In WRTL, the Court concluded that 

BCRA’s prohibition on corporations’ ability to use money from their general treasuries to fund 

electioneering communications could constitutionally apply only to speech that was “express 

advocacy or its functional equivalent,” and not to “‘issue advocacy[]’ that mentions a candidate 

for federal office.” Id. at 456, 481. Citizens United, citing WRTL’s holding that BCRA’s 

expenditure restrictions could only reach “express advocacy and its functional equivalent,” 

sought “to import a similar distinction into BCRA’s disclosure requirements.” Citizens United, 

558 U.S. at 368-69 (emphasis added). The Supreme Court in Citizens United, however,

“reject[ed] this contention.” Id. at 369. The Court explained that the constitutional limitations it 

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had established with respect to expenditure limits did not apply to disclosure requirements,

reasoning:

The Court has explained that disclosure is a less restrictive alternative to more 

comprehensive regulations of speech. In Buckley, the Court upheld a disclosure 

requirement for independent expenditures even though it invalidated a provision 

that imposed a ceiling on those expenditures. In McConnell, three Justices who 

would have found § 441b [BCRA’s ban on paying for electioneering 

communications with corporate general treasury funds] to be unconstitutional 

nonetheless voted to uphold BCRA’s disclosure and disclaimer requirements.

And the Court has upheld registration and disclosure requirements on lobbyists, 

even though Congress has no power to ban lobbying itself. For these reasons, we 

reject Citizens United’s contention that the disclosure requirements must be 

limited to speech that is the functional equivalent of express advocacy.

Id. at 369 (emphasis added) (internal citations omitted). The Court could scarcely have made its 

conclusion any clearer: disclosure requirements may extend beyond express advocacy and its 

functional equivalent.

Plaintiff—in a futile attempt to escape the clear holding of Citizens United—claims that 

this entire section of the decision was dicta. It contends that “[t]he Court had already concluded 

that Hillary and the ads promoting it were the equivalent of express advocacy,” which, if true, 

would have meant the Court did not need to consider whether disclosure must be limited to 

express advocacy. PI. Br. at 15-16 (emphasis added) (quoting Wisconsin Right to Life, Inc. v. 

Barland, 751 F.3d 804, 836 (7th Cir. 2014)).

This is a patent mischaracterization. Although the Court determined that Citizens 

United’s movie was the functional equivalent of express advocacy, it made no similar finding 

with respect to the advertisements for the movie, 558 U.S. at 325—and it was the advertisements 

to which the disclosure analysis was addressed. Id. at 367-71. And to the extent that plaintiff is 

suggesting that Part IV of Citizens United is non-precedential, that is plainly incorrect: Part IV 

was necessary to the judgment in Citizens United and is therefore a binding holding of the Court.

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Likewise, Plaintiff cannot explain away the weight of the Court’s holding by disparaging 

it as “brief,” “terse,” or “truncated.” PI. Br. at 5, 14. Even if Justice Kennedy did not expound at 

great length on the validity of the disclosure provisions, that is no justification for defying the 

binding judgment of the Supreme Court. Indeed, if the disclosure portion of the decision is 

“brief,” as plaintiff remarks, it is because that aspect of the challenge did not present a close 

question. The parties themselves agreed that the advertisements were not express advocacy,2and 

the district court likewise found that the ads “did not advocate Senator Clinton’s election or 

defeat.” Citizens United v. FEC, 530 F. Supp. 2d 274, 280 (D.D.C. 2008) (per curiam). Express 

advocacy requires the use of certain “magic words,” McConnell, 540 U.S. at 191, and “the 

functional equivalent of express advocacy” requires that a communication be “susceptible of no 

reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

WRTL, 551 U.S. at 469-70. Neither test is met by a ten-second ad that states, in its entirety, “[i]f 

you thought you knew everything about Hillary Clinton . . . wait ’til you see the movie,” 

followed by a link to the movie’s website. Citizens United, 530 F. Supp. 2d at 276 n.2. Plaintiff 

makes no serious attempt to argue otherwise.

Plaintiff also makes too much of Citizens United’s passing reference to the 

advertisements as containing “pejorative references” to Senator Clinton’s candidacy. PI Br. at 

15-17. The Court offered that term as part of its description of the promotional ads, not as an 

element of its constitutional analysis. 558 U.S. at 368. There is nothing in Citizens United to

suggest that a “pejorative reference” is necessary to satisfy BCRA’s statutory definition of 

electioneering communication, let alone that such a limitation is constitutionally required. 

 

2

See Br. for Appellant at 51, Citizens United, 558 U.S. 310 (No. 08-205) (public’s “informational 

interest is inapplicable to Citizens United’s advertisements because they do not expressly or impliedly 

advocate a candidate’s election or defeat”); Br. for Appellee at 36 (“[T]he advertisements are not the 

functional equivalent of express advocacy.”).

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Indeed, the McConnell Court had upheld “application of [BCRA’s] disclosure requirements to 

the entire range of ‘electioneering communications,’” without regard to their “pejorative” nature. 

540 U.S. at 196 (emphasis added). Had the Court in Citizens United wished to overrule its

holding and limit disclosure to “pejorative” references, it would have done so explicitly.

Moreover, the Court’s reasoning—that the public has an interest in knowing who is speaking 

about a candidate near the time of an election and that disclosure requirements do not prevent 

anyone from speaking—applies equally to communications whether they are “pejorative” or not.

In short, BCRA requires disclosure for “electioneering communications,” a term defined 

without regard to whether a communication is “genuine issue advocacy” or “pejorative.”

Congress deliberately omitted such distinctions to avoid the vagueness concerns raised in 

Buckley, and the Supreme Court specifically relied on the objective character of BCRA’s 

definition of “electioneering communications” in finding it constitutional. McConnell, 540 U.S. 

at 194. Plaintiff here has staked out a position that would render BCRA unconstitutional—

notwithstanding the Supreme Court’s clear holdings otherwise—because it reaches 

advertisements that are not express advocacy or its functional equivalent. Accepting plaintiff’s 

argument would overturn binding Supreme Court precedent.

C. Plaintiff Can Provide No Legal Authority to Support Its Position.

Plaintiff, in a curious attempt to escape the clear weight of controlling Supreme Court 

authority, invokes a host of lower court cases. Even if these decisions could override Supreme 

Court precedent—which they obviously cannot—they are either outdated or not on point.

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i. Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975)

First, plaintiff urges this Court to discount McConnell and Citizens United and to rely 

instead on Buckley v. Valeo—not the Supreme Court’s opinion in that case, but rather an 

unappealed portion of the D.C. Circuit’s 1975 opinion. See Buckley, 424 U.S. at 10 n.7; Buckley 

v. Valeo, 519 F.2d 821, 869-70 (D.C. Cir. 1975). It argues that the appellate Buckley decision 

stands for the proposition that “groups seeking only to advance discussion of public issues or to 

influence public opinion” cannot be constitutionally subject to disclosure; because plaintiff 

believes it is such a group, it argues that Buckley supports its exemption from the EC disclosure 

provisions. PI Br. at 20 (citing Buckley, 519 F.2d at 873). 

As an initial matter, the appellate Buckley decision predated the Supreme Court’s rulings 

in McConnell and Citizens United, and the latter two rulings would supersede anything in the 

former that might conflict with them. Moreover, the Buckley appellate decision considered a 

very different disclosure law, and unsurprisingly, given its vintage, did not consider the question 

central to this case: whether express advocacy and its functional equivalent mark the outer 

boundary of permissible disclosure requirements. Thus, far from conflicting with McConnell or 

Citizens United, the decision simply does not address the same issues. Furthermore, plaintiff 

approaches the appellate Buckley decision at such a level of generality that its argument lacks 

any substance. It simply recites a few select passages from the decision relating to issue 

advocacy—e.g., “compelled disclosure . . . can work a substantial infringement on the 

associational rights of those whose organizations take public stands on public issues,” PI Br. at 

20 (citing 519 F.2d at 872)—and then states, in conclusory fashion, that these passages compel 

this Court to find the EC disclosure provisions unconstitutional. Id. These selected outtakes 

from the decision, of course, do no such thing. 

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A more substantive review of the Buckley appellate decision demonstrates that the law at 

issue was entirely different than the EC disclosure provisions challenged in this case, and that its 

analysis is consequently inapplicable here. The provision reviewed by the court of appeals, 

FECA § 308, required an organization to “file reports . . . as if [it] were a political committee,”

id. at 869-70, if it was responsible for any of the following: 

(1) “any act directed to the public for the purpose of influencing the outcome of 

an election”; or (2) by “any material” “publishe(d) or broadcast() to the public” 

which “refer(s) to a candidate (by name, description, or other reference)” and 

which (a) “advocate(es) the election or defeat of such candidate,” or (b) “set(s) 

forth the candidate’s position on any public issue, his voting record, or other 

official acts (in the case of a candidate who holds or has held Federal office),” or 

(c) is “otherwise designed to influence individuals to cast their votes for or against 

such candidate or to withhold their votes from such candidate.” 

Id. (alterations in original). 

Section 308 differs from the EC law here because it included the same vague language

that necessitated the Supreme Court’s creation of the express advocacy test in Buckley. Section 

308 applied to “any act directed to the public for the purpose of influencing the outcome of an 

election,” id. at 869, using terminology almost identical to the “for the purpose of . . .

influencing” formulation the Supreme Court later found to raise constitutional vagueness 

concerns. Buckley, 424 U.S. at 79-80. The Court of Appeals held that this language lacked the 

“precision essential to constitutionality.” Buckley, 519 F.2d at 877-78. By contrast, the Supreme 

Court has described the EC definition in BCRA as “both easily understood and objectively 

determinable.” McConnell, 540 U.S. at 194 (citing 2 U.S.C. § 434(f), now codified at 52 U.S.C. 

§ 30104(f)). Indeed, the BCRA definition relied on bright-line tests precisely to avoid the 

vagueness concerns raised by the disclosure requirements in the original FECA. 

Second, section 308 required a group that engaged in covered activity to “file reports 

with the [Federal Election] Commission as if such person were a political committee.” Buckley, 

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519 F.2d at 870 (emphasis added). Then, as today, political committee status meant ongoing 

quarterly reporting, regardless of whether the organization engaged in any election-related 

activity, as well as an array of organizational and record-keeping requirements. See, e.g., Federal 

Election Campaign Act Amendments of 1974, Pub. L. 93-443, 88 Stat. 1263, 1276; 52 U.S.C. 

§ 30104(a)-(b) (quarterly and other ongoing reports); id. § 30102(h) (governing use of bank 

accounts); id. § 30103 (statements of organization and termination requirements). The EC

disclosure requirement, by contrast, consists of an event-driven one-time report that must be filed 

if and only if a group spends more than $10,000 on ECs in a covered period. 52 U.S.C. 

§ 30104(f). No organizational or recordkeeping requirements are triggered. Id. The EC 

provisions at issue here are simply not comparable to section 308, and consequently the court of 

appeals’ decision in Buckley does not bear upon the analysis of the EC disclosure provisions 

here.

ii. Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014)

Plaintiff rests its request that this Court dismiss part of the Supreme Court’s Citizens 

United decision as “dicta” on the Seventh Circuit’s decision in Barland. See PI Br. at 15. But 

Barland provides no more support for plaintiff than the D.C. Circuit’s opinion in Buckley. 

In Barland, the Seventh Circuit stated—incorrectly—that the Citizens United Court had 

determined that Citizens United’s promotional advertisements for Hillary: The Movie were the 

functional equivalent of express advocacy. 751 F.3d at 836. Based upon this faulty premise, the 

Seventh Circuit concluded that the Supreme Court’s rejection of the “contention that the 

disclosure requirements must be limited to speech that is the functional equivalent of express 

advocacy” was merely dicta. Id. Nonetheless, the Court recognized that it was bound by that 

dicta, and that Citizens United definitively held (as had the Seventh Circuit itself in an earlier 

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decision) “that the ‘distinction between express advocacy and issue discussion does not apply in 

the disclosure context.’” Id. (quoting Ctr. for Indv’l Freedom v. Madigan, 697 F.3d 464, 484 

(7th Cir. 2012)).

Barland further acknowledged that Citizens United’s “language relaxing the expressadvocacy limitation applies . . . to the specifics of the disclosure requirement at issue there,” 

id.—which is, of course, the same EC disclosure requirement as is at issue here. Barland thus 

recognized that in the “specific context” of “the disclosure requirement for electioneering 

communications,” Citizens United “declined to apply the express-advocacy limiting principle.” 

Id. Barland is unequivocal on this point: It states plainly that “Citizens United approved eventdriven disclosure for federal electioneering communications” and that “[i]n that specific . . .

context”—exactly the same as the context here—“the Court declined to enforce Buckley’s 

express-advocacy limitation.” Id. Barland thus does not merely fail to support the plaintiff’s 

claim; it is fatal to that claim. Barland held only that significantly more burdensome, “political 

committee” requirements may not be imposed on the basis of issue advocacy. See id. at 837.

Whatever the merit of that holding, it cannot assist plaintiff in light of Barland’s frank 

acknowledgment that Citizens United precludes any claim that the EC disclosure requirements at 

issue here are limited to express advocacy.

In any event, no fair reading of Citizens United would support the conclusion that its 

discussion of express advocacy is dicta. The portion of the opinion that the Barland court cites 

discusses Citizen United’s movie, not the advertisements for the movie. See id. at 824 (citing 

Citizens United, 558 U.S. at 324-25). The Supreme Court determined that the movie was the 

functional equivalent of express advocacy,3but it made no similar finding with respect to the 

 

3 Citizens United also challenged the application of those requirements to the movie itself, which 

was critical of then-Senator Clinton, but both the Supreme Court and Citizens United focused principally 

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advertisements for the movie. Citizens United, 558 U.S. at 324-25. Both Citizens United and 

the government agreed that these advertisements did not constitute “the functional equivalent of 

express advocacy.” See Br. for Appellant at 51, Citizens United, 558 U.S. 310 (No. 08-205); Br. 

for Appellee at 36. The Court in no way indicated that it disagreed with this consensus.

Moreover, the Court in Citizens United expressly grounded its rejection of the as-applied 

challenge to the disclosure provisions in that case on the proposition that the interest in 

disclosure is not limited to express advocacy but rather extends broadly to advertisements that 

discuss candidates near the date of an election. The Court’s stated grounds for its holding cannot 

be characterized as “dicta” merely because a lower court believes that the Court could have 

reached the same result on narrower grounds. Rather, “[w]hen an opinion issues for the Court, it 

is not only the result but also those portions of the opinion necessary to that result by which [the 

courts] are bound.” Seminole Tribe v. Florida, 517 U.S. 44, 66-67 (1996). As Judge Rogers has 

put it, “the reasoning of a Supreme Court case also binds lower courts.” United States v. Duvall, 

740 F.3d 604, 609 (D.C. Cir. 2013) (opinion concurring in denial of rehearing).

In any event, if Barland’s characterization were correct, and the promotional ads at issue 

in Citizens United had been deemed the “functional equivalent of express advocacy,” then 

logically it would follow that virtually any ad that mentions a candidate is the functional 

equivalent of express advocacy. Otherwise expressed, if a communication stating that “[i]f you 

thought you knew everything about Hillary Clinton . . . wait ’til you see the movie” is express 

advocacy, then a fortiori plaintiff’s proposed ad is as well. Plaintiff’s argument thus collapses in 

on itself: If Citizens United’s ads were regulable as “express advocacy,” then so, too, is 

 

on the ads for the movie. 558 U.S. at 371. After finding disclosure constitutional as applied to the ads, 

the Court simply noted that disclosure was also constitutional as applied to the movie “for the same 

reasons.” Id. at 371.

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plaintiff’s ad, and the breadth of the EC disclosure provision is immaterial, because plaintiff’s ad 

in this taxonomy is squarely in the purview of campaign finance regulation.

Unsurprisingly, every Circuit to have addressed the permissible scope of political 

disclosure has recognized that Citizens United compels the conclusion that disclosure is not 

limited to express advocacy. Indeed, a different Seventh Circuit panel held that disclosure may 

extend beyond express advocacy just two years ago. See Madigan, 697 F.3d at 484 (“Whatever 

the status of the express advocacy/issue discussion distinction may be in other areas of campaign 

finance law, Citizens United left no doubt that disclosure requirements need not hew to it to 

survive First Amendment scrutiny.”). As noted by the First Circuit, Citizens United made clear

that “the distinction between issue discussion and express advocacy has no place in First 

Amendment review” of “disclosure-oriented laws.” Nat’l Org. for Marriage v. McKee, 649 F.3d 

34, 54-55 (1st Cir. 2011); see also Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1016 

(9th Cir. 2010) (“[T]he position that disclosure requirements cannot constitutionally reach issue 

advocacy is unsupportable.”). The Second Circuit has likewise recently agreed that “[i]n 

Citizens United, the Supreme Court expressly rejected the ‘contention that the disclosure 

requirements must be limited to speech that is the functional equivalent of express advocacy,’ 

because disclosure is a less restrictive strategy for deterring corruption and informing the 

electorate.” Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 132 (2d Cir. 2014) (quoting 

Citizens United, 558 U.S. at 369). This Court should follow the growing consensus that Citizens 

United means what it says.

II. The Supreme Court Has Repeatedly Approved of Measures Requiring Disclosure in 

Connection to “Issue Advocacy.”

The Supreme Court’s decisions holding that the EC disclosure requirements are 

constitutional without regard to whether they apply to express advocacy or issue advocacy are no 

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anomalies. They are fully consistent with longstanding Supreme Court precedent recognizing

that the broad public interest in knowing the identity of those financing political advocacy

extends far beyond communications containing express advocacy or its functional equivalent. 

The error of plaintiff’s contrary position is underscored by two types of disclosure laws

regulating “issue advocacy” that have been approved by the Supreme Court, namely laws 

relating to lobbying and ballot measure advocacy. 

First, as the Supreme Court noted in Citizens United, it has long approved of disclosure in 

context of lobbying. 558 U.S. at 369 (citing United States v. Harriss, 347 U.S. 612, 625 (1954))

(recognizing that the “Court has upheld registration and disclosure requirements on lobbyists”). 

In Harriss, the Supreme Court considered the Federal Regulation of Lobbying Act, which 

required every person “receiving any contributions or expending any money for the purpose of 

influencing the passage or defeat of any legislation by Congress” to report information about 

their clients and their contributions and expenditures. 347 U.S. at 615 & n.1. After evaluating 

the Act’s burden on First Amendment rights, the Court held that lobbying disclosure was 

justified by the state’s informational interests. The Supreme Court explained that:

Present-day legislative complexities are such that individual members of 

Congress cannot be expected to explore the myriad pressures to which they are 

regularly subjected. . . . Congress has not sought to prohibit these pressures. It 

has merely provided for a modicum of information from those who for hire 

attempt to influence legislation or who collect or spend funds for that purpose. 

Id. at 625. The fact that the Lobbying Act was unrelated to candidate campaigns and instead 

pertained only to issue speech was not constitutionally significant. The Supreme Court 

nonetheless found that the disclosure it required served the state’s informational interest and 

“maintain[ed] the integrity of a basic governmental process.” Id. at 625; see also Nat’l Ass’n of 

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Mfrs. v. Taylor, 582 F.3d 1, 15-16 (D.C. Cir. 2009) (upholding provision of federal lobbying 

disclosure act).4 

Importantly, Harriss also recognized that even “grassroots” or “indirect” lobbying, i.e.,

communications to persuade the public to lobby government officials, may be constitutionally 

subject to disclosure. 347 U.S. at 620; see also id. at 621 n.10 (noting that the Act covered 

lobbyists’ “initiat[ion] of propaganda from all over the country, in the form of letters and 

telegrams,” to influence the acts of legislators). “Grassroots lobbying” communications 

generally describe a legislative action favored by the sponsor, and urge the public to contact the 

relevant lawmakers regarding this action. See, e.g., Minn. State Ethical Practices Bd. v. NRA, 

761 F.2d 509, 511 (8th Cir. 1985) (upholding Minnesota disclosure requirement as applied to 

four communications sent from the NRA to its Minnesota members urging them to contact their 

state legislators about pending legislation). That these “classic” issue ads can be subject to 

disclosure gives lie to plaintiff’s claim that only communications containing the functional 

equivalent of express advocacy can be constitutionally regulated.

In a similar vein, the Supreme Court has expressed approval of statutes requiring the 

disclosure of expenditures relating to ballot measures, although such statutes also lack a 

connection to candidates and thus do not constitute express advocacy or the functional equivalent 

of express advocacy. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the 

Court struck down limits on corporate expenditures to influence ballot measures, but did so in 

part because the state’s interests could be achieved constitutionally through the less restrictive 

 

4 The Harriss decision has been followed by lower courts, which have uniformly upheld state 

lobbying statutes on the grounds that the state’s informational interest in lobbying disclosure outweighs 

the associated burdens. Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 460 (11th Cir. 1996); 

Minn. State Ethical Practices Bd. v. NRA, 761 F.2d 509, 512 (8th Cir. 1985); Comm’n on Ind. Colleges 

and Univs. v. N.Y. Temp. State Comm’n, 534 F. Supp. 489, 494 (N.D.N.Y. 1982). 

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means of disclosure: “Identification of the source of advertising may be required as a means of 

disclosure, so that the people will be able to evaluate the arguments to which they are being 

subjected.” Id. at 792 n.32. Citing Buckley and Harriss, the Court emphasized “the prophylactic 

effect of requiring that the source of communication be disclosed.” Id. The Court again 

recognized this state “informational interest” in Citizens Against Rent Control v. City of 

Berkeley, 454 U.S. 290 (1981), where it considered a challenge to the City’s ordinance that 

limited contributions to committees formed to support or oppose ballot measures. Although the 

Court struck down the contribution limit, it based this holding in part on the disclosure that the 

law required from ballot measure committees. See id. at 298 (“[T]here is no risk that the 

Berkeley voters will be in doubt as to the identity of those whose money supports or opposes a 

given ballot measure since contributors must make their identities known under [a different 

section] of the ordinance, which requires publication of lists of contributors in advance of the 

voting.”). 

These precedents have led multiple circuits to conclude that requiring disclosure of the 

donors financing ballot measure advocacy is constitutional, just as disclosure of the donors 

financing candidate advocacy is. See, e.g., Cal. Pro-Life Council v. Getman, 328 F.3d 1088, 

1104 (9th Cir. 2003) (“The [Supreme] Court has repeatedly acknowledged the constitutionality 

of state laws requiring the disclosure of funds spent to pass or defeat ballot measures.”). In a 

recent challenge to Florida’s ballot measure disclosure law, for instance, the Eleventh Circuit 

strongly rejected the “[c]hallengers’ proposed distinction between ballot issue elections and 

candidate elections,” emphasizing that this was “not supported by precedent” and could not 

“compel a departure from Citizens United.” Worley v. Fla. Sec’y of State, 717 F.3d 1238, 1254 

(11th Cir. 2013), cert. denied, 134 S. Ct. 529 (U.S. 2013); see also Madigan, 697 F.3d at 480 

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(“Educating voters is at least as important, if not more so, in the context of initiatives and 

referenda as in candidate elections.”).

These courts recognize what plaintiff refuses to accept: that the informational interest 

recognized by Buckley in connection to FECA’s disclosure requirements applies equally to the 

disclosure of ballot measure advocacy even though this latter activity is clearly “issue speech.” 

As the Ninth Circuit has “repeatedly” recognized, the interests that support disclosure in the 

context of candidate elections “apply just as forcefully, if not more so, for voter-decided ballot 

measures.” Getman, 328 F.3d at 1105. See also, e.g., Family PAC v. McKenna, 685 F.3d 800, 

806 (9th Cir. 2011). The weight of the case law acknowledges that “the position that disclosure 

requirements cannot constitutionally reach issue advocacy is unsupportable.” Human Life, 624 

F.3d at 1016; see also McKee, 649 F.3d at 57. 

III. Plaintiff’s As-Applied Challenge to the BCRA Disclosure Provisions Fails.

Although plaintiff bills its case as an “as applied” challenge, it functions as a facial 

overbreadth challenge—or at least, it is not different in substance from the facial challenge 

brought by the petitioners in McConnell. Plaintiff highlights little about its proposed ad that 

would serve as grounds for an as-applied exemption from disclosure and instead relies on the 

claim that its ad is not express advocacy or the functional equivalent of express advocacy. But 

the petitioners in McConnell likewise challenged the EC disclosure provisions because they 

extended beyond express advocacy, and their facial challenge was rejected. 540 U.S. at 190, 

196. As this Court has recognized in similar circumstances, “a plaintiff cannot successfully 

bring an as-applied challenge to a statutory provision based on the same factual and legal 

arguments the Supreme Court expressly considered when rejecting a facial challenge to that 

provision. Doing so is not so much an as-applied challenge as it is an argument for overruling a 

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precedent.” Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 157 (D.D.C. 2010) (threejudge court), aff’d, 130 S. Ct. 3544 (2010). 

Even if viewed as an as-applied challenge, plaintiff’s claim must fail given the Supreme 

Court’s rejection of an as-applied challenge resting on exactly the same theory in Citizens 

United. In Citizens United, the Supreme Court recognized only one constitutionally mandated 

as-applied exemption from a facially valid political disclosure law: where there is “a reasonable 

probability that [a] group’s members would face threats, harassment, or reprisals if their names 

were disclosed.” 558 U.S. at 370; see also Buckley, 424 U.S. at 74. Here, plaintiff has expressly 

disclaimed any concerns about harassment. See Joint Stipulation and Order, Sept. 10, 2014 

(Doc. 14) (“The parties accordingly agree that this case presents an as-applied challenge to 52 

U.S.C. § 30104(f)(1)-(2) based upon the content of the Independence Institute’s intended 

communication, and not the possibility that its donors will be subject to threats, harassment, or 

reprisals.”). It has consequently abandoned the one basis recognized by the Supreme Court for 

an as-applied exemption from campaign finance disclosure.

Plaintiff half-heartedly attempts to differentiate its ads from those considered in Citizens 

United, noting, for instance, that it is a 501(c)(3) organization, not a 501(c)(4) organization; but 

as discussed below, this distinction is irrelevant to the constitutionality of a disclosure law. 

Plaintiff has failed to distinguish its “as-applied” challenge from either the facial challenge 

rejected in McConnell or the as-applied challenge rejected in Citizens United. 

A. Plaintiff’s Status as a Section 501(c)(3) Organization Is Immaterial to the 

Constitutionality of a Disclosure Requirement.

Plaintiff highlights that it is a group organized under Section 501(c)(3) of the Internal 

Revenue Code, see 26 U.S.C. § 501(c)(3), whereas the plaintiff in Citizens United was a Section 

501(c)(4) organization, insinuating that the distinction in tax status somehow affects the First 

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Amendment analysis. PI Br. at 18. But the Supreme Court has never suggested that the 

constitutionality of the EC disclosure provisions turns on the tax status of the groups subject to 

the law; to the contrary, the Court has criticized campaign finance laws that discriminate “based 

on the speaker’s identity.” Citizens United, 558 U.S. at 350. 

There is no basis in precedent for concluding that an exemption from disclosure for 

501(c)(3) organizations is constitutionally required. In McConnell, the Supreme Court sustained 

the EC disclosure provisions even though they contained no exemption for 501(c)(3) groups. 

540 U.S. at 194-96. And after McConnell, when the FEC created an exemption for 501(c)(3) 

groups by regulation, this court invalidated the exemption. Shays v. FEC, 337 F. Supp. 2d 28, 

124-28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005). The district court found this 

501(c)(3) exemption to be arbitrary and capricious because “the [FEC] did not fully address 

whether the tax code . . . preclude[s] Section 501(c)(3) organizations from making” the 

communications that BCRA “requires be regulated.” Id. at 128. No court has imposed such an 

exemption as a matter of constitutional law. 

Plaintiff offers no substantive reason to explain why 501(c)(3) organizations are situated 

differently than 501(c)(4) organizations for purposes of disclosure. It states that “donors to 

§ 501(c)(4) organizations are generally offered less protection than those to § 501(c)(3) groups,” 

and cites 26 U.S.C. § 6104(d)(3)(A) for this proposition. PI Br. at 18. But here plaintiff is 

simply wrong. The cited section of the Internal Revenue Code provides that all tax-exempt 

groups organized under 501(c) except private foundations are not obligated under federal tax law 

to disclose their donor information to the public. 26 U.S.C. § 6104(d)(3)(A) (“In the case of an 

organization which is not a private foundation (within the meaning of section 509 (a)) or a 

political organization exempt from taxation under section 527, [the law] shall not require the 

Case 1:14-cv-01500-CKK Document 21 Filed 09/22/14 Page 27 of 31
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disclosure of the name or address of any contributor to the organization . . . .”). This provision 

encompasses both 501(c)(3) and 501(c)(4) organizations. Thus, the provision of the tax code 

upon which plaintiff relies itself fails to make the distinction between 501(c)(3) and 501(c)(4) 

groups that plaintiff advances.5 

B. Under Existing FEC Regulations, Plaintiff Is Required to Report Only Those 

Donors Who Earmark Their Funds for Electioneering Communications.

Under current FEC rules, a corporation or union making over $10,000 in ECs need 

disclose only the source of those contributions exceeding $1,000 “made for the purpose of 

furthering ECs.” Explanation and Justification for Final Rules on Electioneering 

Communications (“E & J”), 72 Fed. Reg. 72,899, 72,911 (Dec. 26, 2007) (emphasis added); 11 

C.F.R. § 104.20(c)(9). Nevertheless, plaintiff complains that it “faces the very real possibility of 

being required to disclose all of its donors” because the status of this regulation is “in doubt.” PI 

Br. at 24. While of course the statutory and regulatory provisions governing EC disclosure could 

be amended by Congress or modified through litigation—as is the case for all laws—the legal 

regime in which plaintiff today operates requires groups to disclose only those donors who 

earmark their funds for ECs. Plaintiff cannot manufacture a constitutionally cognizable injury 

based upon speculation about how the law may change in the future.

 

5 Nor does the prohibition on “intervening” in a “political campaign” by 501(c)(3) groups under 

federal tax law, 26 U.S.C. § 501(c)(3), render the application of the EC disclosure provisions to such 

groups unconstitutional, as plaintiff suggests. The IRS’s definition of campaign intervention, see, e.g., 

Rev. Rul. 2007-41, 2007-1 C.B. 1421, is used to determine whether a group meets the criteria for a tax 

status under Section 501(c)(3), not whether the group should be subject to disclosure under federal 

election law. The IRS’ definition is not—and was not intended to be—coextensive with the activity 

regulated under FECA. See, e.g., Shays v. FEC, 337 F. Supp. 2d 28, 124-28 (D.D.C. 2004) (criticizing 

FEC for deferring to the IRS standard because “the IRS in the past has not viewed Section 501(c)(3)’s ban 

on political activities to encompass activities that are . . . considered [to be political activities]” under 

federal campaign finance law). Moreover, that the Tax Code itself imposes more stringent limits on 

political activity by 501(c)(3) groups than by 501(c)(4) groups suggests, if anything, that section 

501(c)(3) groups are entitled to less constitutional protection for their political activities.

Case 1:14-cv-01500-CKK Document 21 Filed 09/22/14 Page 28 of 31
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Moreover, even if the earmarking limitation set forth in the regulation were not in effect 

and plaintiff was indeed required to report all of its donors under the EC disclosure provisions, 

this type of comprehensive disclosure has been repeatedly found to be constitutional.

BCRA on its face requires groups spending over the threshold amount on ECs to either 

establish a segregated bank account and disclose all contributors of $1,000 or more to that 

account, see 52 U.S.C. § 30104(f)(2)(E), or use their general treasury account and disclose all

contributors of $1,000 or more to the group, see id. § 30104(f)(2)(F). The statute thus provides 

plaintiff with the option to disclose only the donors to a separate account from which it makes 

disbursements for electioneering communications and to shield its other donors from disclosures. 

In any event, the statute itself does not limit donor disclosure to earmarked contributions. 

In 2007, the FEC promulgated the current regulation limiting disclosure to “only the identities of 

those persons who made a donation aggregating $1,000 or more specifically for the purpose of 

furthering ECs made by that corporation or labor organization.” E & J, 72 Fed. Reg. at 72,911

(emphasis added); see also 11 C.F.R. § 104.20(c)(9).6 

In McConnell, the Supreme Court upheld the statutory EC disclosure requirement on its 

face although it had not yet been modified by the FEC’s 2007 rule. Evidently, the Court was not 

at all troubled that the statute required disclosure of “the names and addresses of all

contributors” over a specified threshold. 52 U.S.C. § 30104(f)(2)(F) (emphasis added). The 

FEC rule was in effect when Citizens United was decided, but the “earmarking” limitation 

played no role in the Supreme Court’s constitutional analysis and was never mentioned in the 

Court’s opinion. The D.C. Circuit has accordingly rejected the contention that “the Supreme 

Court’s holding was limited by” the earmarking regulation. Van Hollen v. FEC, No. 12-5117, 

 

6 This rule was challenged as contrary to the federal statute in Van Hollen v. FEC, 851 F. Supp. 2d 

69 (D.D.C. 2012), rev’d, Ctr. for Indv’l Freedom v. Van Hollen, 694 F.3d 108, 112 (D.C. Cir. 2012), on 

remand No. 1:11-cv-00766 (argument heard Oct. 29, 2013), but, as noted above, remains in force today.

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2012 WL 1758569 (D.C. Cir. May 14, 2012) (unpublished). Thus, even if plaintiff was not 

operating under the FEC’s 2007 rule, comprehensive disclosure of donors—as required under the 

federal statute itself—is constitutional.

The courts of appeals have likewise upheld laws that require organizations to disclose all 

of their donors, even though a given contribution may not have been earmarked for the specific 

form of advocacy covered by a challenged disclosure law. See, e.g., Madigan, 697 F.3d at 472; 

Family PAC, 685 F.3d at 803. Indeed, the Fourth Circuit recently reversed a district court 

precisely because it imposed an “earmarking” limitation to “cure” the alleged unconstitutionality 

of a disclosure requirement. Ctr. for Indv’l Freedom v. Tennant, 706 F.3d 270, 291 (4th Cir. 

2013). As noted by the Seventh Circuit, “an earmarking limitation would mean that groups that 

make electioneering communications need not disclose who has contributed to pay for those 

communications unless the donor is dumb enough specifically to direct the organization to use 

the money for a particular communication.” Madigan, 697 F.3d at 490 n.27 (citations and 

internal quotation marks omitted). “The First Amendment does not require a state to build such 

an escape hatch into reasonable disclosure laws.” Id. at 489.

CONCLUSION

For the foregoing reasons, this Court should deny plaintiff’s motion for preliminary 

injunction and dismiss its complaint.

Case 1:14-cv-01500-CKK Document 21 Filed 09/22/14 Page 30 of 31
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RESPECTFULLY SUBMITTED this 19th day of August 2014.

/s/ J. Gerald Hebert

J. Gerald Hebert*

(VA Bar No. 38432)

Tara Malloy

(DC Bar No. 988280)

Lawrence M. Noble

(DC Bar No. 244434)

Megan P. McAllen

(DC Bar No. 1020509)

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, D.C. 20002

Tel.: (202) 736-2200

 jhebert@campaignlegalcenter.org

Fred Wertheimer,

(DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, D.C. 20036 

Tel.: (202) 355-9600

Donald J. Simon

(DC Bar No. 256388)

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

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Washington, D.C. 20005

Tel.: (202) 682-0240

Scott L. Nelson

(DC Bar No. 413548)

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, D.C. 20009

Tel.: (202) 588-1000

Counsel for Amici Curiae

*Counsel of Record

Case 1:14-cv-01500-CKK Document 21 Filed 09/22/14 Page 31 of 31