i

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 CENTER FOR

CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF APPELLANT

JOHN C. EASTMAN

ANTHONY T. CASO

 Counsel of Record

Center for Constitutional

 Jurisprudence

c/o Chapman University

 Fowler School of Law

One University Drive

Orange, CA 92866

Telephone: (714) 628-2666

E-Mail: caso@chapman.edu

Counsel for Amicus Curiae

Center for Constitutional Jurisprudence
i

QUESTION PRESENTED

Whether Congress may require organizations engaged in the genuine discussion of policy issues, unconnected to any campaign for office, to report to the 

Federal Election Commission, and publicly disclose 

their donors, pursuant to the Bipartisan Campaign 

Reform Act of 2002.
ii

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

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

IDENTITY AND INTEREST OF 

AMICUS CURIAE ...............................................1

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

REASONS FOR GRANTING REVIEW .....................2

I. The Court Should Grant Review 

to Resolve the Growing Confusion 

Over the Scrutiny to Apply to 

Government Regulation of 

Political Speech..................................................2

II. Political Speech and Petitioning 

Government Officials Are at the Heart of 

the Interests Protected by the First 

Amendment. .......................................................5

III. The Disclosure Requirements at Issue 

Chill Speech and Petition Rights...................7

CONCLUSION ..........................................................11
iii

TABLE OF AUTHORITIES

Cases

Brown v. Hartlage, 

456 U.S. 45 (1982)..........................................................3

Buckley v. Amer. Constitutional Law Found., Inc., 

525 U.S. 182 (1999)................................................2, 3, 4

Burson v. Freeman, 

504 U.S. 191 (1992)........................................................3

Citizens Against Rent Control v. Berkeley, 

454 U.S. 290 (1981)........................................................3

Citizens United v. Federal Election Comm’n, 

558 U.S. 310 (2010)..................................................4, 11

Citizens United v. Federal Elections Commission, 

558 U.S. 310 (2010)........................................................1

Delaware Strong Families v. Denn, 

136 S.Ct. 2376 (2016) ..................................................11

Federal Election Comm’n v. Wisconsin Right to Life, 

Inc., 

551 U.S. 449 (2007)......................................................11

Harris v. Quinn, 

134 S.Ct. 2618 (2014) ................................................1, 4

Independence Institute v. Federal Election Comm’n, 

Jurisdictional Statement (D. D.C. 2016) ..................3

John Doe No. 1 v. Reed, 

561 U.S. 186 (2010)........................................................1

Knox v. Serv. Employees Int’l Union, Local 1000, 

132 S.Ct. 2277 (2012) ....................................................1

Lovell v. City of Griffin, 

303 U.S. 444 (1938)........................................................8

McDonald v. Smith, 

472 U.S. 479 (1985)........................................................5

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1999)........................................3, 9, 10, 11
iv

NAACP v. Alabama, ex rel. Patterson, 

357 U.S. 449 (1958)................................................2, 7, 8

Powell v. McCormack, 

395 U.S. 486 (1969)........................................................9

Reed v. Town of Gilbert, 

135 S.Ct. 2218 (2015) ....................................................3

Sorrell v. IMS Health, Inc., 

564 U.S. 552 (2011)........................................................3

United Mine Workers of Am., Dist 12 v. Illinois State 

Bar Ass’n, 

389 U.S. 217 (1967)........................................................5

United States v. Cruikshank, 

92 U.S. 542 (1875)..........................................................5

Other Authorities

Bleyer, Willard Grosvenor, Main Currents in the 

History of American Journalism (1927)....................8

Cincinnatus I: To James Wilson, New York 

Journal, November 1, 1787, reprinted in 

19 THE DOCUMENTARY HISTORY OF THE 

RATIFICATION OF THE CONSTITUTION (2009)..............7

Constitution of Maryland, Declaration of Rights 

(1776) Art. XI, reprinted in 3 Francis Thorpe, 

ed., THE FEDERAL AND STATE 

CONSTITUTIONS (1993)...................................................6

Constitution of North Carolina, Declaration 

of Rights (1776) Art. XVIII, reprinted in 5 THE 

FEDERAL AND STATE CONSTITUTIONS..........................6

Constitution of Pennsylvania, Declaration of Rights 

(1776) Art. XVI, 5 THE FEDERAL AND STATE 

CONSTITUTIONS ...............................................................6

Constitution of Vermont, Declaration of Rights 

(1777) Art. XVIII, 6 THE FEDERAL AND STATE 

CONSTITUTIONS ...............................................................6

ENCYCLOPEDIA OF COLONIAL AND REVOLUTIONARY 

AMERICA (John Mack Faragher ed., 1990) ...............9
v

George Mason’s Objections to the Constitution of 

Government Formed by the Convention, 

reprinted in 8 THE DOCUMENTARY HISTORY

OF THE RATIFICATION OF THE 

CONSTITUTION (2009).....................................................6

Lawson, Gary and Seidman, Guy, Downsizing the 

Right to Petition, 93 Nw. U.L. Rev. 739 (1999) .......6

Lee, Richard Henry, Proposed Amendments, 

reprinted in 8 THE DOCUMENTARY 

HISTORY OF THE RATIFICATION OF THE 

CONSTITUTION (2009).....................................................6

Massachusetts Constitution of 1780, 

Pt. 1, Art. XIX, 3 THE FEDERAL AND STATE 

CONSTITUTIONS ...............................................................6

Meiklejohn, A., FREE SPEECH AND ITS RELATION TO 

SELF-GOVERNMENT (Harper Brothers 1948)............6

One of the Common People, Boston Gazette, 

reprinted in 4 THE DOCUMENTARY HISTORY 

OF THE RATIFICATION OF THE 

CONSTITUTION (2009).....................................................7

Samuel, Independent Chronicle, reprinted in 

5 THE DOCUMENTARY HISTORY OF THE 

RATIFICATION OF THE CONSTITUTION (2009)..............6

Story, Joseph, Commentaries on the Constitution 

3:§1887, reprinted in 5 THE FOUNDERS’

CONSTITUTION .................................................................5

Tucker, St. George, Blackstone’s Commentaries 

1:App. 299-300 (1803) reprinted in 5 THE 

FOUNDERS’ CONSTITUTION (1987)................................5

Wilson, James, Remarks in the Pennsylvania 

Convention to Ratify the Constitution, 1787, 

reprinted in 1 COLLECTED WORKS OF JAMES 

WILSON (2007).................................................................5
vi

Rules

Sup. Ct. R. 37.2(a)..............................................................1

Sup. Ct. R. 37.6...................................................................1
1

IDENTITY AND

INTEREST OF AMICUS CURIAE

Amicus, the Center for Constitutional Jurisprudence1 was established in 1999 as the public interest 

law arm of the Claremont Institute, the mission of 

which is to restore the principles of the American 

Founding to their rightful and preeminent authority 

in our national life. This includes the principle that

republican government requires robust protection of 

the right of petition and political speech. These rights 

find express protection in the First Amendment, but 

they are also inherent rights of the people as sovereigns in our constitutional system. The Center has 

participated as amicus in a number of cases before 

this Court that raised issues concerning election 

speech, including Harris v. Quinn, 134 S.Ct. 2618 

(2014); Knox v. Serv. Employees Int’l Union, Local 

1000, 132 S.Ct. 2277 (2012); John Doe No. 1 v. Reed, 

561 U.S. 186 (2010); and Citizens United v. Federal 

Elections Commission, 558 U.S. 310 (2010).

SUMMARY OF ARGUMENT

The Court should grant review to settle an area 

of law that is now the subject of substantial confusion. 

 

1 Pursuant to this Court’s Rule 37.2(a), Amicus Curiae gave all 

parties notice of amicus’s intent to file at least 10 days prior to 

the filing of this brief. Counsel for all parties consented to this 

brief and Amicus lodged copies of the letters evidencing that consent with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel 

for any party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the 

preparation or submission of this brief. No person other than 

Amicus Curiae, its members, or its counsel made a monetary contribution to its preparation or submission.
2

Speech about political issues is at the core of the Freedom of Speech protected by the First Amendment. 

Further, the right of petitioning government for redress of grievances is both inherent in our republican 

form of government and expressly protected by the 

First Amendment. Yet, the decisions of this Court 

seem to treat political speech differently than other 

forms of speech, with speech concerning an election 

receiving less protection than a directional sign message, flag burning, or nude dancing. It is not just that 

results differ in different cases. This Court applies 

different tests to the regulation of speech in order to 

permit greater regulation of that which the First 

Amendment was enacted to protect. Regulation of 

core First Amendment Speech is now treated on par 

with commercial speech, while other speech regulation is subject to strict scrutiny. Review should be 

granted to resolve the confusion and to return to a jurisprudence that protects core First Amendment values. 

REASONS FOR GRANTING REVIEW

I. The Court Should Grant Review to Resolve 

the Growing Confusion Over the Scrutiny to 

Apply to Government Regulation of Political

Speech

The statute in question requires disclosure of donors who contribute $1,000 or more for issues ads that 

mention the name of a candidate for office – in this 

case a serving United States Senator. This Court has 

recognized on numerous occasions that disclosure requirements chill speech. See, e.g., Buckley v. Amer.

Constitutional Law Found., Inc., 525 U.S. 182, 198 

(1999); NAACP v. Alabama, ex rel. Patterson, 357 U.S. 

449, 461 (1958). Yet the court below applied what it 
3

termed “exacting scrutiny” to the regulation as the 

test applicable to all “campaign-related speech.” Independence Institute v. Federal Election Comm’n, Jurisdictional Statement at App. 30 (U.S. Dist. Court, D. 

D.C. 2016). This scrutiny requires the regulation to 

have a “substantial relation” to a “sufficiently important government interest.” Id. The test is roughly 

the same scrutiny the Court requires for regulation of 

commercial speech. See Sorrell v. IMS Health, Inc.,

564 U.S. 552, 571-72 (2011) (To sustain the targeted, 

content-based burden ... on protected expression, the 

State must show at least that the statute directly advances a substantial governmental interest and that 

the measure is drawn to achieve that interest.”).

As noted in Section II, infra, protection of political speech and petition of government officials are at 

the core of rights protected by the First Amendment. 

As a general matter, this Court has tested regulation 

of these core interests by the strict scrutiny test. See

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 

(1999); Burson v. Freeman, 504 U.S. 191, 198 (1992); 

Brown v. Hartlage, 456 U.S. 45, 52-54 (1982); Citizens 

Against Rent Control v. Berkeley, 454 U.S. 290, 294 

(1981). As Justice Thomas has noted, however, the 

Court’s approach to election laws that burden “voting 

and associational interests” are much harder to predict. Buckley, 525 U.S. at 208 (Thomas, J., concurring 

in the judgment).

This confusion is puzzling given the general protection of Freedom of Speech. For instance, this Court 

has ruled that content-based regulations on the size 

and number of temporary signs directing people to 

church services must satisfy strict scrutiny. Reed v. 

Town of Gilbert, 135 S.Ct. 2218, 2224 (2015). Yet the
4

court below applied a lower level of scrutiny to the law 

here that singles out messages based on their content

(the mention of the name of sitting government officials) for disfavored treatment. The confusion in this 

Court’s precedents is evidenced by the fact that regulation of directional signs receive a greater level of 

scrutiny than speech that is at the core of the interests 

protected by the First Amendment. 

Strict scrutiny has generally been the test for regulation of speech rights. Laws that compel contributions of money for political activities are tested under 

strict scrutiny. Harris, 134 S.Ct. at 2639. The same 

is true of laws that require disclosure of the identity

of the proponent of a political leaflet or identification 

of the individual soliciting signatures on a petition. 

McIntyre, 514 U.S. at 357; Talley v. California, 362 

U.S. 60, 64 (1960); Buckley, 525 U.S. at 200. This case 

presents the issue of whether the right to petition government officials is entitled to the same protection.

The Court has acknowledged that political speech 

that seeks to engage others for political change is “core 

political speech” where First Amendment protection 

should be “at its zenith.” Buckley, 525 U.S. at 186-87. 

Yet far from granting political speech this level of protection, the Court’s opinion in Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010), generates

uncertainty that leads to much less scrutiny. Buckley, 

525 U.S. at 208 (Thomas, J., concurring in the judgment). That which should be most protected now receives, at best, uncertain protection. This Court 

should grant review in this case to clarify that political speech is at the core of the First Amendment and 

that government regulation that chills that speech 
5

must be justified by a compelling governmental interest.

II. Political Speech and Petitioning Government Officials Are at the Heart of the Interests Protected by the First Amendment. 

This Court has long recognized that our very form 

of government implies a right to petition government 

and engage in political speech. United States v. Cruikshank, 92 U.S. 542, 552 (1875). This right lies at the 

core of the liberties protected by the First Amendment. See McDonald v. Smith, 472 U.S. 479, 482 

(1985); United Mine Workers of Am., Dist 12 v. Illinois 

State Bar Ass’n, 389 U.S. 217, 222 (1967).

The significance of the form of government established our Constitution cannot be overstated. The 

right of petition is not a mere indulgence to seek favor 

from the sovereign. See St. George Tucker, Blackstone’s Commentaries 1:App. 299-300 (1803) reprinted in 5 Phillip B. Kurland and Ralph Lerner, 

eds., THE FOUNDERS’ CONSTITUTION 207 (1987). Instead, political sovereignty lies in the people themselves. Incident to this sovereignty, the people have 

an inherent right to instruct their representatives and 

converse with each other on political manners, even in 

the absence of an express declaration of right. James 

Wilson, Remarks in the Pennsylvania Convention to 

Ratify the Constitution, 1787, reprinted in 1 Kermit 

L. Hall, Mark David Hall, eds., COLLECTED WORKS OF 

JAMES WILSON 194-95 (2007); Joseph Story, Commentaries on the Constitution 3:§1887, reprinted in 5 THE 

FOUNDERS’ CONSTITUTION, 207; A. Meiklejohn, FREE 

SPEECH AND ITS RELATION TO SELF-GOVERNMENT 26
6

(Harper Brothers 1948); Gary Lawson and Guy Seidman, Downsizing the Right to Petition, 93 Nw. U.L. 

Rev. 739 (1999).

Although the rights of petition and speech were 

assumed to be part of the new governments, most of 

the state constitutions had express protections for 

speech, petition, and assembly. See, e.g., Constitution 

of Maryland, Declaration of Rights (1776) Art. XI, reprinted in 3 Francis Thorpe, ed., THE FEDERAL AND 

STATE CONSTITUTIONS 1687 (1993); Constitution of 

North Carolina, Declaration of Rights (1776) Art.

XVIII, reprinted in 5 THE FEDERAL AND STATE CONSTITUTIONS 2788; Constitution of Pennsylvania, Declaration of Rights (1776) Art. XVI, 5 THE FEDERAL AND 

STATE CONSTITUTIONS 3084; Constitution of Vermont, 

Declaration of Rights (1777) Art. XVIII, 6 THE FEDERAL AND STATE CONSTITUTIONS 3741-42; Massachusetts Constitution of 1780, Pt. 1, Art. XIX, 3 THE FEDERAL AND STATE CONSTITUTIONS 1892. The founding 

generation was leery of the new federal government, 

seemingly further removed from direct electoral control. Significant objections were raised during the ratification debates that the new federal charter lacked 

a declaration of rights protecting speech, press, petition, and assembly. See, e.g., Richard Henry Lee, Proposed Amendments, reprinted in 8 John P. Kaminski 

et al., eds., THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 65 (2009); George Mason’s Objections to the Constitution of Government 

Formed by the Convention, reprinted in 8 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 43; Samuel, Independent Chronicle, reprinted in 5 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 678; Cincinnatus I: To 

James Wilson, New York Journal, November 1, 1787, 
7

reprinted in 19 THE DOCUMENTARY HISTORY OF THE 

RATIFICATION OF THE CONSTITUTION 163-34; One of the 

Common People, Boston Gazette, reprinted in 4 THE

DOCUMENTARY HISTORY OF THE RATIFICATION OF THE 

CONSTITUTION 368.

There was no debate about the right of petition at 

the time the Bill of Rights was proposed. That comes 

as no surprise. The power of the people to petition 

government is inherent in their sovereignty. The purpose of the amendment was to add an additional 

measure of security against government action that 

would limit the right.

Although the statute at issue is framed as an 

election regulation, there is no election advocacy involved in the speech that will be regulated. The proposed communication is pure issue advocacy. It asks 

citizens to contact their Senator about a piece of pending legislation. The statute regulates the communication here only because it mentions the name of the 

Senator 60 days before his name appears on the ballot. However, the communication advocates neither 

for nor against the Senator. It merely urges citizens 

to exercise their inherent right as sovereigns to petition their Senator on a piece of pending legislation. 

This is a right that lies at the core of the First Amendment.

III. The Disclosure Requirements at Issue 

Chill Speech and Petition Rights. 

In NAACP v. Alabama, ex rel. Patterson, this 

Court considered a discovery ruling by Alabama state 

courts requiring the NAACP turn over to the state the 

names and addresses of members living in Alabama. 
8

The Court acknowledged, “that that freedom to engage in association for the advancement of beliefs and 

ideas is an inseparable aspect of the ‘liberty’.” 

NAACP, 357 U.S. at 460. Thus, any state action that 

curtailed this freedom was subject to the “closest scrutiny.” Id. 

The Court concluded that the membership disclosure order was an action that curtailed the freedom of 

association and speech. That the state of Alabama 

had taken no action to restrict speech of NAACP members was not a factor in the Court’s analysis. As the 

Court noted, even an unintended chilling of speech 

triggers strict scrutiny. Id., at 461.

One of the more storied traditions within the 

realm of public political discourse in the United States 

is the practice of anonymous pamphleteering. In the 

face of concerns for transparency, anonymous pamphleteering has been seen, not as a hindrance to the 

continued development of society and the United 

States as a republic, but as a helpful tool in that effort. 

This Court has recognized that “anonymous pamphlets, leaflets, brochures and even books have played 

an important role in the progress of mankind.” Talley, 

362 U.S. at 64.

These tools of free speech “indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history 

abundantly attest.” Lovell v. City of Griffin, 303 U.S.

444, 452 (1938); see Willard Grosvenor Bleyer, Main 

Currents in the History of American Journalism 90-93 

(1927). However, the tradition of anonymous political 

speech is most famously embodied in The Federalist

Papers, authored by James Madison, Alexander Ham-
9

ilton, and John Jay, but signed “Publius.” Publius’ opponents, the Anti-Federalists, also published under 

pseudonyms: prominent among them were “Cato,” 

“Centinel,” “The Federal Farmer,” and “Brutus.” 

Anonymous and pseudonymous publication protects 

the author from retribution. It also allows the author 

to have the work considered on its own merits – free 

from any preconceptions the reader may have about 

the author and his motives.

A forerunner of all of these writers was the preRevolutionary War English pamphleteer “Junius,” 

whose true identity remains a mystery. See ENCYCLOPEDIA OF COLONIAL AND REVOLUTIONARY AMERICA 220 

(John Mack Faragher ed., 1990) (positing that “Junius” may have been Sir Phillip Francis). The “Letters 

of Junius” were “widely reprinted in colonial newspapers and lent considerable support to the revolutionary cause.” Powell v. McCormack, 395 U.S. 486, 531 

n.60 (1969).

Anonymous political speech allows publication 

without fear of economic or official retaliation, concern 

about social ostracism, or merely a desire to preserve 

as much of one’s privacy as possible. McIntyre, 514 

U.S. at 341-42. Further, anonymous publication allows the argument to be considered on its own merits. 

Too often, political positions are dismissed based on 

the affiliation of the author, without any serious consideration given to the merits of the argument. 

“Whatever the motivation may be,” the interest in continued unfettered political discourse “unquestionably 

outweighs any public interest in requiring disclosure 

as a condition of entry.” Id. at 342. Indeed, anonymous publication permits the ideas expressed to stand 
10

on their own merit, apart from any prejudice against 

the author. Id.

These principles are evidenced upon a review of 

this nation’s history where persecuted groups and minority sects have been able to choose how to criticize 

oppressive practices. Talley, 362 U.S. at 64. This 

Court has recognized that, without anonymity, the

fear of retribution would chill important speech and 

political participation. Id. at 65.

This historical evidence clearly reveals a “respected tradition of anonymity in the advocacy of political causes.” McIntyre, 514 U.S. at 343. For, under 

our Constitution, “anonymous pamphleteering is not 

a pernicious, fraudulent practice, but an honorable 

tradition of advocacy and of dissent. Anonymity is a 

shield from the tyranny of the majority.” Id. at 357. 

The right to anonymous political speech represents 

the choice made in the First Amendment to protect a 

robust political participation, without fear of reprisal. 

As Justice Stevens noted:

It thus exemplifies the purpose behind the 

Bill of Rights, and of the First Amendment 

in particular: to protect unpopular individuals from retaliation—and their ideas from 

suppression—at the hand of an intolerant society. The right to remain anonymous may 

be abused when it shields fraudulent conduct. But political speech by its nature will 

sometimes have unpalatable consequences, 

and, in general, our society accords greater 

weight to the value of free speech than to the 

dangers of its misuse.
11

McIntyre, 514 U.S. at 357. It is in balancing the right 

of anonymous political speech against public concerns 

for transparency that society’s interest in free speech 

prevails.

This Court has upheld disclosure requirements 

related to contributions to a candidate for public office. This disclosure is said to be supported by a compelling interest in preventing quid pro quo corruption. 

Federal Election Comm’n v. Wisconsin Right to Life, 

Inc., 551 U.S. 449, 478 (2007). That interest is not 

present when the disclosure focusses on contributions 

toward issue advertisements. Id. There is no interest 

in disclosure of donors behind issue ads to provide 

more information to voters, since the communication 

is not geared toward influencing votes. Cf. Citizens 

United, 558 U.S. at 366. This ad had nothing to do 

with an election. In any event, this Court has rejected 

the idea that providing more information alone is sufficient to compel disclosure that will chill speech and 

petition activity. McIntyre, 514 U.S. at 348.

This Court should grant review in this case to decide whether a mere interest in additional information is sufficient to overcome core First Amendment liberties. See Delaware Strong Families v. Denn, 

136 S.Ct. 2376 (2016) (Thomas, J., dissenting from denial of certiorari)

CONCLUSION

This Court has found that disclosure laws fulfill 

a compelling governmental interest in combatting 

quid pro quo corruption. The issue ads at issue in this 

case, however, do not involve an election. Thus, there 

is no anti-corruption purpose to the regulation. The 

disclosure law at issue is then a solution in search of 
12

a problem. This Court should grant review in order to 

address the confusion in its First Amendment Jurisprudence, and to return that jurisprudence to protection of the interests at the core of the First Amendment.

DATED: January, 2017.

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Center for Constitutional

 Jurisprudence

c/o Chapman University

 Fowler School of Law

One University Drive

Orange, CA 92866

Telephone: (714) 628-2666

E-Mail: caso@chapman.edu

Counsel for Amicus Curiae

Center for Constitutional Jurisprudence