UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

INDEPENDENCE INSTITUTE, )

)

Plaintiff, )

) Civ. No. 14-1500 (CKK, PAM, APM)

v. )

)

FEDERAL ELECTION COMMISSION, ) MOTION

)

Defendant. )

_______________________________________)

FEDERAL ELECTION COMMISSION’S 

MOTION FOR SUMMARY JUDGMENT 

Defendant Federal Election Commission respectfully moves this Court for an order

granting summary judgment to the Commission pursuant to Rule 56 of the Federal Rules of Civil 

Procedure and Local Rule 7(h). In support of this motion, the Commission is filing a 

Memorandum in Support of its Motion for Summary Judgment and in Opposition to Plaintiffs’ 

Motion for Summary Judgment and a proposed order. 

Respectfully submitted,

Daniel A. Petalas (D.C. Bar No. 467908)

Acting General Counsel

dpetalas@fec.gov

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel — Law

lstevenson@fec.gov

Kevin Deeley

Acting Associate General Counsel

kdeeley@fec.gov

July 19, 2016

Erin Chlopak (D.C. Bar No. 496370)

Acting Assistant General Counsel

echlopak@fec.gov

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar No. 462840)

Attorney

gmueller@fec.gov

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650

Case 1:14-cv-01500-CKK-PAM-APM Document 42 Filed 07/19/16 Page 1 of 49
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

INDEPENDENCE INSTITUTE, )

)

Plaintiff, )

) Civ. No. 14-1500 (CKK, PAM, APM)

v. )

)

) MEMORANDUM

FEDERAL ELECTION COMMISSION, )

Defendant. )

_______________________________________)

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF 

ITS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

Daniel A. Petalas (D.C. Bar No. 467908)

Acting General Counsel

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel — Law

Kevin Deeley

Acting Associate General Counsel

Erin Chlopak (D.C. Bar No. 496370)

Acting Assistant General Counsel

Greg J. Mueller (D.C. Bar No. 462840)

Attorney

FEDERAL ELECTION COMMISSION 

999 E Street N.W.

Washington, DC 20463

(202) 694-1650

Case 1:14-cv-01500-CKK-PAM-APM Document 42 Filed 07/19/16 Page 2 of 49
i

TABLE OF CONTENTS

Page

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

I. STATUTORY AND REGULATORY BACKGROUND ................................................... 2

A. The Origin of “Electioneering Communications” .................................................. 3

B. The Supreme Court’s Resolution of Facial and As-Applied Constitutional 

Challenges to BCRA’s Electioneering Communications Provisions..................... 6

II. INDEPENDENCE INSTITUTE’S CHALLENGE TO BCRA’S ELECTIONEERING 

COMMUNICATION PROVISIONS................................................................................... 9

III. THE SINGLE-JUDGE DISTRICT COURT DECISION.................................................. 10

IV. INDEPENDENCE INSTITUTE’S APPEAL .................................................................... 11

A. Proceedings Regarding Mootness......................................................................... 11

B. The Panel’s Opinions Regarding the District Court Decision Not to 

Convene a Three-Judge Court .............................................................................. 12

ARGUMENT................................................................................................................................ 13

I. AS THE SUPREME COURT HAS HELD, THE EC DISCLOSURE PROVISIONS 

CHALLENGED HERE ARE CONSTITUTIONAL......................................................... 13

A. The Challenged EC Provisions Are Subject to Intermediate Scrutiny ................. 13

B. The EC Disclosure Provision Furthers Important Governmental Interests, 

Including Providing the Electorate with Information ........................................... 14

C. The Supreme Court Has Made Clear That EC Disclosure Requirements for .

Advertisements That Are Not Functionally Equivalent to Express Candidate 

Advocacy Are Substantially Related to Important Interests................................. 15

D. The Courts of Appeals Have Confirmed the Permissibility of EC Disclosure 

Outside the Context of Express Advocacy Advertisements Many Times.............18

Case 1:14-cv-01500-CKK-PAM-APM Document 42 Filed 07/19/16 Page 3 of 49
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E. There Are Important Interests in Disclosure Related to Advertisements That 

Reference Both Candidates and Legislation......................................................... 21

F. All of Plaintiff’s Attempts to Minimize, Distinguish, or Disregard Citizens 

United Lack Merit................................................................................................. 25

1. Plaintiff’s Out-of-Circuit Authorities Confirm That Citizens United 

Forecloses This Challenge ........................................................................ 25

2. Whether Plaintiff’s Proposed Advertisement Contains “Pejorative” 

References to a Candidate Is Irrelevant .................................................... 27

3. The Informational Interest Does Not Vary According to an 

Advertiser’s Tax Status............................................................................. 29

II. DECISIONS REGARDING VERY DIFFERENT PROVISIONS SUCH AS 

FINANCING RESTRICTIONS AND IN-PERSON LEAFLETTING 

ARE INAPPOSITE ............................................................................................................ 32

III. PLAINTIFF FAILS TO IDENTIFY ANY UNCONSTITUTIONAL BURDEN 

ARISING FROM THE EC DISCLOSURE REQUIREMENTS....................................... 36

A. There is No Reasonable Probability That Plaintiff’s Compliance

with the EC Disclosure Requirements Will Result in Threats, Harassment, 

or Reprisals ........................................................................................................... 36

B. Plaintiff Has Failed to Show that the EC Disclosure Requirements

Otherwise Burden its First Amendment Rights.................................................... 37

C. Plaintiff Need Not Disclose All of Its Donors In Order to Air ECs..................... 37

IV. THE FEC DOES NOT DISPUTE THAT PLAINTIFF’S CLAIMS SATISFY THE

CAPABLE-OF-REPETITION-YET-EVADING-REVIEW EXCEPTION TO 

MOOTNESS ...................................................................................................................... 40

CONCLUSION............................................................................................................................. 40

Case 1:14-cv-01500-CKK-PAM-APM Document 42 Filed 07/19/16 Page 4 of 49
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TABLE OF AUTHORITIES

 Cases Page

Am. Civil Liberties Union of N.J. v. N.J. Election Law Enf’t Comm’n,

 509 F. Supp. 1123 (D. N.J. 1981)......................................................................................24

Animal Legal Def. Fund v. Espy, 23 F.3d 496 (D.C. Cir. 1994)..............................................39

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999).......................22, 35, 36

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).....................................................3, 4, 33, 36

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (per curiam) .........................................25, 34

Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 2010)..................................................................27

*Citizens United v. FEC, 558 U.S. 310 (2010)........1, 8-9, 13, 16-17, 22, 27-29, 30, 34, 36, 39

Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) (per curiam).......................16, 28

Comm’n on Indep. Coll. & Univ. v. N.Y. Temp. State Comm’n on Regulation

 of Lobbying, 534 F. Supp. 489 (N.D.N.Y. 1982)...............................................................24

Ctr. for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015) ............................32, 37

Ctr. for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) .....................21, 26, 30

Del. Strong Families v. Attorney General of Del., 793 F.3d 304 (3rd Cir. 2015) .........2, 19, 30

Doe v. Reed, 561 U.S. 186 (2010) ...........................................................................................13

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986)........................................................9

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) .......................................7, 13, 33, 34, 40

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)..............................................22, 23

Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir. 1996) .......................24

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) ...............................................................20

Gates v. Syrian Arab Republic, 646 F.3d 1 (D.C. Cir. 2011) ..................................................39

Hispanic Leadership Fund, Inc. v. FEC, 897 F. Supp. 2d 407 (E.D. Va. 2012).....................22

Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010)..................................21

In re Grand Jury Proceedings v. Hutchinson, 633 F.2d 754 (9th Cir.1980)...........................31

Case 1:14-cv-01500-CKK-PAM-APM Document 42 Filed 07/19/16 Page 5 of 49
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Indep. Inst. v. FEC, 816 F.3d 113 (D.C. Cir. 2016).................................................................12

Indep. Inst. v. FEC, 70 F. Supp. 3d 502 (D.D.C. 2014).........................................11, 29, 30, 35

Indep. Inst. v. Williams, 812 F.3d 787 (10th Cir. 2016) ......................................................2, 19 

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ......................................................................38

Majors v. Abell, 361 F.3d 349 (7th Cir. 2004).........................................................................35

*McConnell v. FEC, 540 U.S. 93 (2003)........................................15-16, 18, 29, 32, 33-34, 36

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)...............................................23, 35

Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n of Am.,

 761 F.2d 509 (8th Cir. 1985) .............................................................................................24

N.M. Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) .........................................26

Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009)....................................................24

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011).............................................21

Nat’l Right to Work Legal Def. and Ed. Found. v. Herbert,

 581 F. Supp. 2d 1132 (D. Utah 2008)................................................................................27

NCAA v. Bd. of Regents of the Univ. of the Univ. of Okla.,, 468 U.S. 85 (1984)....................31

New York v. Ferber, 458 U.S. 747 (1982) ...............................................................................18

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) .............................26

Osborne v. Ohio, 495 U.S. 103 (1990) ....................................................................................18

Real Truth About Abortion v. FEC, 681 F.3d 544 (4th Cir. 2012)....................................20, 22

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010)...................................18

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989).............................18

Shapiro v. McManus, 136 S. Ct. 450 (2015) ...........................................................................12

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) ...................................................................31

*SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc) .................................13, 14

United States v. Harriss, 347 U.S. 612 (1954) ........................................................................24

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ................................................................38

Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118 (2d Cir. 2014).....................................20

Williams v. Lew, 819 F.3d 466 (D.C. Cir. 2016) .....................................................................38

Case 1:14-cv-01500-CKK-PAM-APM Document 42 Filed 07/19/16 Page 6 of 49
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Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014)........................7, 26, 38

Worley v. Fla. Sec’y of State, 717 F.3d 1238 (11th Cir. 2013)....................................20, 22, 35

Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015)...................................................................14

Zimmerman v. Cambridge Credit Counseling Corp., 409 F.3d 473 (1st Cir. 2005)...............31

Statutes and Regulations

Bipartisan Campaign Reform Act, §§ 201-204, 116 Stat. 88-90...............................................5

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 

90 Stat. 475 (1976) ................................................................................................................4

26 U.S.C. § 501(c)(3)............................................................................................... 9, 29, 30-31

26 U.S.C. § 6104(d)(3)(A).......................................................................................................32

28 U.S.C. § 2284......................................................................................................................12

52 U.S.C. § 30101(8)(A)(i)........................................................................................................3

52 U.S.C. § 30101(9)(A)(i)........................................................................................................3

52 U.S.C. § 30101(11)...............................................................................................................5

52 U.S.C. § 30104......................................................................................................................3

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

52 U.S.C. § 30104(f)(1)...................................................................................................5, 6, 10

52 U.S.C. § 30104(f)(2).......................................................................................................6, 10

52 U.S.C. § 30104(f)(2)(A)-(C).................................................................................................5

52 U.S.C. § 30104(f)(2)(E)..................................................................................................6, 38

52 U.S.C. § 30104(f)(2)(F) ........................................................................................................6

52 U.S.C. § 30104(f)(3)(A)........................................................................................................5

52 U.S.C. § 30104(f)(3)(A)(i)................................................................................................5, 6

52 U.S.C. § 30106(b)(1) ............................................................................................................3

52 U.S.C. § 30107(a)(8).............................................................................................................3

52 U.S.C. § 30110......................................................................................................................9

52 U.S.C. § 30111(a)(8).............................................................................................................3

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52 U.S.C. § 30111(d).................................................................................................................3

52 U.S.C. § 30116(a) .................................................................................................................3

52 U.S.C. § 30118......................................................................................................................6

52 U.S.C. § 30118(a) .............................................................................................................3, 5

52 U.S.C. § 30118(b)(2) ............................................................................................................5

52 U.S.C. § 30118(b)(2)(C).......................................................................................................3

52 U.S.C. § 30120......................................................................................................................6

52 U.S.C. § 30121(a)(1)(C) ............................................................................................... 14-15

11 C.F.R. § 100.29(a)(2)............................................................................................................5

11 C.F.R. § 104.20(c)(7).................................................................................................. 7-8, 38

11 C.F.R. § 104.20(c)(9)................................................................................................8, 38, 39

Miscellaneous

Conciliation Agreement, In the Matter of S. All. for Clean Energy, Pre-MUR 575,

http://eqs.fec.gov/eqsdocsMUR/16044394917.pdf ...........................................................31

Timothy Johnson, Wash. Post Volokh Conspiracy Blog Lets NRA-Funded Writer Attack 

 Background Checks With Debunked Myths, Media Matters For America (Nov. 3, 2015) 

 http://mediamatters.org/blog/2015/11/03/wash-post-volokh-conspiracy-blog-lets-nra-

 funde/206595 (last visited July 14, 2016)..........................................................................23

David Kopel, How Everytown’s background check law impedes firearms safety training

and self- defense, The Volokh Conspiracy (Nov. 2, 2015) 

 https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/02/

how-everytowns-background-check-law-impedes-firearms-safety-training-and-self-

 defense/?postshare=1446574890904 (last visited July 14, 2016) .....................................23

Frank Smyth, The Times Has Finally (Quietly) Outed an NRA-Funded “Independent” 

Scholar, The Progressive, (Apr. 23, 2014), 

http://www.progressive.org/news/2014/04/187663/times-has-finally-quietlyouted-nra-funded-%E2%80%9Cindependent%E2%80%9D-scholar (last 

 visited July 14, 2016).........................................................................................................23

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INTRODUCTION

This case asks the Court to decide the constitutionality of event-driven disclosure 

requirements concerning the sources and financing of certain clearly and objectively defined 

“electioneering communications” (“ECs”). The challenged EC disclosure rules apply only to 

advertisements that refer to a clearly identified candidate for federal office, and that are 

(a) publicly distributed, (b) via certain specific mediums, (c) within a specified short period 

before a federal election, and (d) in a jurisdiction in which the identified candidate is running for 

office. The Supreme Court has twice upheld the Bipartisan Campaign Reform Act’s (“BCRA”) 

disclosure requirements for ECs and explicitly rejected the argument, which plaintiff 

Independence Institute seeks to relitigate here, that such disclosure requirements must be limited 

to communications that are express candidate advocacy or its equivalent. The Supreme Court’s 

unambiguous decisions in McConnell v. FEC, 540 U.S. 93 (2003), and Citizens United v. FEC, 

558 U.S. 310 (2010), clearly foreclose this challenge. 

Indeed, in Citizens United, eight Justices of the Supreme Court held that “the public has 

an interest in knowing who is speaking about a candidate shortly before an election” and this 

“informational interest alone” is sufficient to uphold the constitutionality of the statutory 

disclosure requirements for federal ECs. Citizens United, 558 U.S. at 369. Those eight Justices 

also explicitly rejected an argument, which plaintiff attempts to repackage and present anew

here, that BCRA’s disclosure requirements for ECs “must be limited to speech that is the 

functional equivalent of express advocacy.” Id. The Court in Citizens United was clear and 

unequivocal: it not only refused to impose a functional-equivalent-of-express-advocacy 

limitation on the federal EC disclosure rules, the Court also held that such disclosure 

requirements are constitutional “even” as applied to “ads [that] only pertain to a commercial 

transaction.” Id. 

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Nine United States circuit courts of appeals have since invoked Citizens United in 

holding that other campaign-finance disclosure provisions need not be limited to candidate 

advocacy to survive First Amendment scrutiny, see infra pp. 18-21, including two recent 

decisions that rejected similar challenges to analogous state EC provisions by the same or 

similarly situated plaintiffs here. See Indep. Inst. v. Williams, 812 F.3d 787 (10th Cir. 2016)

(“Independence Institute II”); Del. Strong Families v. Attorney General of Del., 793 F.3d 304, 

308 (3d Cir. 2015), cert. denied sub nom. Del. Strong Families v. Denn, No. 15-1234, 2016 WL 

1275340 (June 28, 2016). Independence Institute II and Delaware Strong Families also 

illuminate the flaws of plaintiff’s assorted attempts to distinguish directly controlling Supreme 

Court precedent, including based on plaintiff’s tax status, or to concoct support for its alreadyrejected legal theories from alternative decisions. Plaintiff’s cited cases are either inapposite or 

actually indicate that the disclosure requirements challenged here are permissible. 

Even if this challenge were not foreclosed, plaintiff’s claims fail for the additional reason 

that the organization cannot identify any unconstitutional burden arising from the narrow 

disclosure requirement it challenges. For these reasons and those detailed below, plaintiff’s 

attempt to relitigate a constitutional question that the Supreme Court has clearly and conclusively 

resolved should be rejected and summary judgment should be awarded to the Commission. 

BACKGROUND

I. STATUTORY AND REGULATORY BACKGROUND

The Commission is the independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement of the Federal 

Election Campaign Act (“FECA”), 52 U.S.C. §§ 30101-30146, including the amendments added 

by BCRA. The Commission is empowered to “formulate policy” with respect to FECA, 

Case 1:14-cv-01500-CKK-PAM-APM Document 42 Filed 07/19/16 Page 10 of 49
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52 U.S.C. § 30106(b)(1), and “to make, amend, and repeal such rules . . . as are necessary to 

carry out the provisions of [the] Act,” Id. §§ 30107(a)(8), 30111(a)(8), (d).

A. The Origin of “Electioneering Communications”

FECA limits the amount individuals may contribute to candidates, their campaigns, and 

other political committees and parties. 52 U.S.C. § 30116(a). It also prohibits corporations and 

labor organizations from making contributions to federal candidates or their authorized 

committees, except through such entities’ separate segregated funds (also known as political 

action committees). Id. § 30118(a), (b)(2)(C).1 And, before the Supreme Court’s decision in 

Citizens United, FECA prohibited corporations and unions from making any “expenditures,” 

defined as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or 

anything of value, made . . . for the purpose of influencing any election for Federal office.” 52 

U.S.C. § 30101(9)(A)(i); see id. § 30118(a). FECA also requires periodic disclosures of 

contributions and certain expenditures and disbursements to the FEC, which, in turn, makes the 

information publicly available. Id. § 30104. 

In 1976, the Supreme Court generally upheld FECA’s contribution limits and disclosure 

requirements against a facial challenge, but the Court struck down FECA’s limits on 

expenditures by individuals and candidates. Buckley v. Valeo, 424 U.S. 1, 43-44 (1976) (per 

curiam). When the Court analyzed FECA’s then-$1,000 limit and disclosure requirements for 

expenditures by any person “relative to” a federal candidate, the Court construed “expenditure” 

narrowly to avoid invalidating those provisions on vagueness grounds and applied the term “only 

 1 FECA defines “contribution” to include “any gift, subscription, loan, advance, or deposit 

of money or anything of value made . . . for the purpose of influencing any election for Federal 

office.” 52 U.S.C. § 30101(8)(A)(i).

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to expenditures for communications that in express terms advocate the election or defeat of a 

clearly identified candidate for federal office.” Id. at 44, 79 (footnote omitted). 

Following Buckley, Congress amended FECA to define an “independent expenditure” as 

“an expenditure by a person . . . expressly advocating the election or defeat of a clearly identified 

candidate” and not made by or in coordination with a candidate or political party. See Federal 

Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 475, 479 

(1976) (codified at 52 U.S.C. § 30101(17)). FECA requires that all independent expenditures 

above $250 be timely reported to the Commission for disclosure to the public. 52 U.S.C. 

§ 30104(c)(1). 

Buckley did not consider the separate FECA provision prohibiting corporations and labor 

organizations generally from making independent expenditures using their general treasury 

funds, 52 U.S.C. § 30118. Following the Supreme Court’s narrowing construction of 

independent “expenditure,” corporations and unions generally could finance independent 

communications that discussed candidates with general treasury funds as long as they stopped 

short of express advocacy. 

By the end of the 1990s, groups were spending millions of dollars on ads that avoided 

words of express advocacy and ostensibly advocated for or against an issue, but in essence urged 

the election or defeat of federal candidates. See McConnell v. FEC, 540 U.S. 93, 126-128 

(2003), overruled in part by Citizens United v. FEC, 558 U.S. 310, 365 (2010). Congress 

determined that because the express advocacy standard was easy to evade, corporations and labor 

unions were able “to fund broadcast advertisements designed to influence federal elections . . . 

while concealing their identities from the public.” Id. at 196 (internal quotation marks omitted). 

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To address this and other developments in federal campaign finance, Congress enacted 

BCRA in 2002, which, inter alia, imposed new financing restrictions and disclosure 

requirements for “electioneering communications.” BCRA §§ 201-204, 116 Stat. 88-90, 52 

U.S.C. §§ 30104(f)(1)-(2), 30118(a), (b)(2); see also McConnell, 540 U.S. at 126. 

BCRA defines an “electioneering communication” as any broadcast, cable, or satellite 

communication that refers to a clearly identified candidate for federal office, is publicly 

distributed within 60 days before a general, special, or runoff election or 30 days before a 

primary or preference election, or a political party nominating caucus or convention, and is 

targeted to the relevant electorate. 52 U.S.C. § 30104(f)(3)(A); 11 C.F.R. § 100.29(a)(2). BCRA 

prohibited the financing of ECs with corporate or union general treasury funds. 52 U.S.C. 

§§ 30104(f)(3)(A)(i), 30118(a), (b)(2). 

Congress also required disclosure concerning the sources and financing of ECs. Any 

“person” (defined to include any corporation, labor organization, or other group, 52 U.S.C. 

§ 30101(11)) that spends over $10,000 to produce or air an electioneering communication must 

file a statement with the Commission. Id. § 30104(f)(1). The information required on the 

statement includes identification of the person making the EC disbursement and the amount and 

date of certain disbursements. 52 U.S.C. § 30104(f)(1), (2)(A)-(C). 

BCRA provides two options for disclosing information about the funds used to finance 

ECs. If the disbursements were paid from a segregated bank account that contains only funds 

contributed directly to that account for electioneering communications (and solely by individual 

United States citizens, nationals, or lawful permanent residents), the statute requires disclosure 

only of the names and addresses of contributors that gave a total of $1,000 or more to the

account between the beginning of the preceding calendar year and the disclosure date. 

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52 U.S.C. § 30104(f)(2)(E). Alternatively, if the disbursements were not paid with funds from 

such an account, the statute requires disclosure of the names and addresses of all contributors that 

gave a total of $1,000 or more to the person making the disbursement between the beginning of 

the preceding calendar year and the disclosure date. Id. § 30104(f)(2)(F).

B. The Supreme Court’s Resolution of Facial and As-Applied Constitutional 

Challenges to BCRA’s Electioneering Communications Provisions 

When BCRA’s EC provisions were challenged as facially unconstitutional, the Supreme 

Court upheld the statutory definition of “electioneering communication” at 52 U.S.C. 

§ 30104(f)(3)(A)(i), the related disclosure provision at 52 U.S.C. § 30104(f)(1)-(2), and 

(initially) the related spending prohibitions at 52 U.S.C. §§ 30118 and 30120. See McConnell, 

540 U.S. at 194, 201-02, 207-08. The Court rejected the contention that the statutory definition 

of “electioneering communication” was infirm because it was not limited to “communications 

expressly advocating the election or defeat of particular candidates.” Id. at 189-90. Buckley, the 

Court found, had not established a “constitutionally mandated line” between express candidate 

advocacy and issue advocacy. Id. (explaining that Buckley’s “express advocacy restriction was 

an endpoint of statutory interpretation, not a first principle of constitutional law”). The Court 

further observed that unlike FECA’s definition of “expenditure,” BCRA’s definition of 

“electioneering communication” did not raise any vagueness concerns; on the contrary, its 

elements “are both easily understood and objectively determinable.” Id. at 194.

As to BCRA’s disclosure requirements, eight Justices agreed that such requirements 

serve the important governmental interests of “providing the electorate with information, 

deterring actual corruption and avoiding any appearance thereof, and gathering the data 

necessary to enforce more substantive electioneering restrictions,” and “do not prevent anyone 

from speaking.” Id. at 196, 201 (brackets and internal quotation marks omitted). The Court thus 

Case 1:14-cv-01500-CKK-PAM-APM Document 42 Filed 07/19/16 Page 14 of 49
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held that “Buckley amply supports application of [BCRA’s] disclosure requirements to the entire 

range of ‘electioneering communications.’” Id. at 196.

Four years after McConnell, in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), 

the Supreme Court considered an as-applied challenge to BCRA’s prohibition on the financing

of electioneering communications with corporate and union treasury funds and partially 

invalidated it. The controlling opinion held BCRA’s ban unconstitutional as applied to a 

corporation’s advertisements that did not constitute express advocacy or “the functional 

equivalent of express advocacy.” 551 U.S. at 476, 478-79. A communication is the “functional 

equivalent of express advocacy,” the controlling opinion explained, only if it “is susceptible of 

no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” 

Id. at 469-70. After Wisconsin Right to Life, all corporations and unions thus had the right to 

finance electioneering communications that did not contain express advocacy or its functional 

equivalent. See 551 U.S. at 480-81. The Court in Wisconsin Right to Life did not address 

BCRA’s disclosure provisions.

Following the Supreme Court’s decision in Wisconsin Right to Life, the Commission 

promulgated regulations that, inter alia, addressed the new category of permissible 

electioneering communications financed with corporate or union treasury funds. Consistent with 

the statutory requirements for unincorporated entities, the Commission’s regulations provide that 

when a corporation finances an EC with funds from a segregated bank account established to pay 

for electioneering communications, the corporation paying for the communication need only 

identify those individuals who contributed $1,000 or more to the account itself. 11 C.F.R. 

§ 104.20(c)(7). In the absence of a segregated account, the Commission’s regulations require 

that a corporation must report “the name and address of each person who made a donation 

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aggregating $1,000 or more to the corporation . . . for the purpose of furthering electioneering 

communications.” 11 C.F.R. § 104.20(c)(9) (emphasis added). 

In 2010, the Supreme Court revisited the constitutionality of prohibitions on using 

corporate and union general treasury funds to finance independent expenditures and 

electioneering communications, as well as the statutory disclosure requirements for 

electioneering communications. Citizens United, 558 U.S. 310. Citizens United, a nonprofit 

corporation, sought to distribute a film about then-Senator Hillary Clinton, who at the time was a 

candidate in the Democratic Party’s 2008 Presidential primary elections. Id. at 319-20. Citizens 

United also sought to distribute several short ads promoting the film. Id. at 320. 

The Court found that Citizens United’s movie was essentially “a feature-length negative 

advertisement that urge[d] viewers to vote against Senator Clinton for President.” Id. at 325. 

Applying the “objective” “functional-equivalent test” articulated in the controlling opinion in 

Wisconsin Right to Life, the Court concluded that “there [was] no reasonable interpretation of 

[the movie] other than as an appeal to vote against Senator Clinton,” and it was accordingly 

subject to the challenged financing prohibitions. Id. at 326. The court then invalidated FECA’s 

prohibition on the use of corporate and union general treasury funds to finance independent 

expenditures, as well as BCRA’s similar prohibition on the use of such funds to finance 

electioneering communications. 558 U.S. at 365-66. 

In a portion of the opinion that eight Justices joined, however, the Court reaffirmed the 

part of McConnell that upheld BCRA’s electioneering communication disclosure requirements 

on their face, and further upheld those disclosure requirements specifically as applied to both 

Citizens United’s movie and its proposed advertisements. 558 U.S. at 366-71. Citizens United 

had sought to “import . . . into BCRA’s disclosure requirements” a distinction similar to 

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Wisconsin Right to Life’s limit on permissible financing restrictions, contending that “the 

disclosure requirements . . . must be confined to speech that is the functional equivalent of 

express advocacy.” Id. at 368-69. Because “disclosure is a less restrictive alternative to more 

comprehensive regulations of speech,” the Court “reject[ed]” that contention. Id. at 369 (citing 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986)). Thus, despite not making any 

findings that Citizens United’s promotional ads were the functional equivalent of express 

advocacy, the Court held that the government’s “informational interest alone is sufficient to 

justify application of [BCRA’s EC disclosure requirements] to these ads.” Id.

II. INDEPENDENCE INSTITUTE’S CHALLENGE TO BCRA’S 

ELECTIONEERING COMMUNICATION PROVISIONS

Plaintiff Independence Institute is a nonprofit corporation that is organized and claiming 

exemption from income taxes under 26 U.S.C. § 501(c)(3), and that “conducts research and 

educates the public on various aspects of public policy,” including by financing and distributing 

advertisements. (V. Compl. ¶ 2.) One such radio advertisement, which plaintiff had planned to 

run in Colorado during the months leading up to the November 2014 general election, advocated 

in favor of pending legislation concerning criminal justice reform and urged listeners to call thenColorado Senators Mark Udall and Michael Bennet and “[t]ell them to support” the bill. (Id.

¶¶ 3, 31, 32, 35.) At the time, Udall was up for re-election and the advertisement would have 

qualified as an EC under BCRA. (Id. ¶¶ 105-07.)

On September 2, 2014, plaintiff filed a complaint challenging the constitutionality of 

BCRA’s definition of “electioneering communication” and EC disclosure requirements as

applied to non-express advocacy communications like plaintiff’s proposed radio advertisement. 

(V. Compl. ¶¶ 1, 122.) It also filed an application for a three-judge court pursuant to BCRA’s 

special judicial-review provision, 52 U.S.C. § 30110 note, which provides for three-judge district 

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courts to decide substantial constitutional challenges to BCRA, and for such decisions to be 

directly appealable to the Supreme Court. And it filed a motion for a preliminary injunction. 

In light of the imminence of the November 2014 general election — plaintiff made these 

initial filings just a few days before the electioneering-communication period was to begin — the 

parties agreed to an expedited briefing schedule and, at the district court’s suggestion, to 

consolidate briefing on the preliminary-injunction motion with merits briefing. (Minute Order 

(Sept. 9, 2014); Joint Stip. of Parties and Order (Docket No. 14) (“Joint Stip.”).) The parties 

further stipulated, and the district court ordered, 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.” (Joint Stip. at 1.)

Plaintiff argues that its proposed advertisement “is genuine issue speech” and that the 

statutory definition of “electioneering communication” is unconstitutionally overbroad because it 

is not limited to communications containing “an appeal to vote for or against a specific 

candidate.” (V. Compl. ¶¶ 113, 116.) It further contends that BCRA’s disclosure requirements 

for electioneering communications cannot constitutionally be applied to groups that “do[] not 

have ‘the major purpose’ of political activity,” and that “only communications that ‘expressly 

advocate the election or defeat of a clearly identified candidate’ are subject to disclosure.” (Id.

¶ 122.)

III. THE SINGLE-JUDGE DISTRICT COURT DECISION

On October 6, 2014, the district court issued a 22-page opinion denying plaintiff’s 

request to convene a three-judge district court and entering judgment for the Commission based 

on the court’s conclusion that this case is “squarely foreclosed” by “the Supreme Court’s clear 

instructions in Citizens United” and its rejection of all of plaintiff’s attempts to limit or 

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distinguish that decision. Indep. Inst. v. FEC, 70 F. Supp. 3d 502, 506-13, 515 (D.D.C. 2014), 

rev’d and remanded, 816 F.3d 113 (D.C. Cir. 2016) (holding that the merits of plaintiff’s 

challenge must be decided by a three-judge district court).

IV. INDEPENDENCE INSTITUTE’S APPEAL 

A. Proceedings Regarding Mootness

At the time of the appeal, plaintiff’s proposed advertisement no longer fell within 

BCRA’s definition of “electioneering communication.” The Commission argued in a brief

before the Court of Appeals that plaintiff’s challenge was moot because plaintiff had not “to date 

identified any specific intention to broadcast any electioneering communications in the future.” 

Appellee Br., Indep. Inst., No. 14-5249, at 46-47 (D.C. Cir. May 8, 2015 (Docket No. 1551586)).

In its appellate reply brief, plaintiff asserted for the first time it “will wish to run similar 

advertisements in the future,” and thus that its alleged injury falls within the capable-ofrepetition-yet-evading-review exception to mootness. Appellant’s Reply Br., Indep. Inst., No. 

14-5249, at 24-27 (D.C. Cir. May 22, 2015 (Docket No. 1553771)). To support that assertion, 

plaintiff later supplemented the record on appeal with a press release describing its intention “to 

run substantively similar advertisements to the one at issue here” in future EC periods. 

Appellant’s Mot. to Supplement R., Indep. Inst., No. 14-5249, at 2 (D.C. Cir. Sept. 24, 2015 

(Docket No. 1574833)); Order, Indep. Inst., No. 14-5249 (D.C. Cir. Oct. 13, 2015 (Docket No. 

1577832)) (granting motion to supplement the record). At oral argument in the Court of 

Appeals, counsel for the FEC stated that in light of plaintiff’s representations in its press release, 

the FEC no longer disputed that plaintiff’s claims fall within the capable-of-repetition-yetevading-review exception to mootness (see Pl.’s Mem. at 5 & n.2).

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B. The Panel’s Opinions Regarding the District Court Decision Not to Convene

a 

Three-Judge Court

On March 1, 2016, a panel of the Court of Appeals for the District of Columbia Circuit 

issued a majority opinion holding that the merits of plaintiff’s challenge must be decided by a 

three-judge district court and reversing the decision below with instructions that a three-judge 

district court be convened. Indep. Inst. v. FEC, 816 F.3d 113 (D.C. Cir. 2016). Judge Wilkins 

issued a dissenting opinion concluding that plaintiff’s claims should have been dismissed for 

lack of jurisdiction. Id. at 117-19 (Wilkins, J., dissenting) (finding that plaintiff’s central 

argument depends on a “fatal” “misreading of Buckley v. Valeo” that “is squarely foreclosed by 

subsequent Supreme Court precedent”). Presumably because the court was satisfied that it

possessed jurisdiction, neither the majority nor the dissenting opinion discussed whether 

plaintiff’s claims were moot.

After the single-judge court issued its opinion here, the Supreme Court had issued

Shapiro v. McManus, 136 S. Ct. 450 (2015) and clarified the standard for determining whether a 

three-judge court must be convened under 28 U.S.C. § 2284. In the majority opinion in 

plaintiff’s appeal, Judges Kavanaugh and Griffith relied on Shapiro in concluding that plaintiff’s 

claims were not “‘essentially fictitious’” or “‘obviously frivolous’” and that plaintiff’s factual 

allegations were sufficiently distinct from those in past Supreme Court cases to clear the “low 

bar” for obtaining a three-judge court. Indep. Inst., 816 F.3d at 116-17 (quoting Shapiro, 136 S. 

Ct. at 456). The majority made clear that it was not “suggest[ing] that Independence Institute’s 

argument is a winner,” but merely holding that “[s]ection 2284 ‘entitles’ the Institute to make its 

case ‘before a three-judge district court.’” Id. at 117 (quoting Shapiro, 136 S. Ct. at 456). The

court accordingly reversed the judgment of the single-judge district court and remanded the case 

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with directions to convene a three-judge district court.

ARGUMENT

I. AS THE SUPREME COURT HAS HELD, THE EC DISCLOSURE PROVISIONS 

CHALLENGED HERE ARE CONSTITUTIONAL

A. The Challenged EC Provisions Are Subject to Intermediate Scrutiny

Disclosure provisions “‘impose no ceiling on campaign-related activities,’ and ‘do not 

prevent anyone from speaking.’” Citizens United, 558 U.S. at 366 (quoting Buckley, 424 U.S. at 

64; McConnell, 540 U.S. at 201); see also SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 

2010) (en banc) (“SpeechNow”). Thus, as plaintiff acknowledges (Pl.’s Mem. at 13), “First 

Amendment challenges to disclosure requirements in the electoral context . . . [are] reviewed . . . 

under what has been termed ‘exacting scrutiny.’” Doe v. Reed, 561 U.S. 186, 196 (2010) 

(collecting cases). “That standard ‘requires a ‘substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.” Id. (quoting Citizens United, 

558 U.S. at 366-67).

Plaintiff contends that the Commission must “demonstrate ‘that a [sufficiently important] 

interest supports each application of a statute restricting speech.’” (Pl.’s Mem. at 13 (quoting 

Wis. Right To Life, Inc., 551 U.S. at 478).) But that is the standard for a “court applying strict 

scrutiny,” as the opinion in Wisconsin Right to Life makes plain, thus the need for plaintiff to 

replace “compelling” with “[sufficiently important]” in the quotation. 551 U.S. at 478. To 

survive intermediate scrutiny, the fit between the governmental objective and the means 

employed in a disclosure provision need only be “substantial,” not perfect.

The “Supreme Court has not limited the government’s acceptable interests” in the 

disclosure context; “the government may point to any ‘sufficiently important’ governmental 

interest that bears a ‘substantial relation’ to the disclosure requirement.” SpeechNow, 

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599 F.3d at 696 (quoting Citizens United, 558 U.S. at 366). 

B. The EC Disclosure Provision Furthers Important Governmental Interests, 

Including Providing the Electorate with Information

The Supreme Court has repeatedly concluded that “important state interests” generally 

sufficient to uphold disclosure laws include “providing the electorate with information, deterring 

actual corruption and avoiding any appearance thereof, and gathering the data necessary to 

enforce more substantive electioneering restrictions.” McConnell, 540 U.S. at 196 (discussing 

Buckley). Plaintiff’s contention that “[u]nder Buckley’s exacting scrutiny, the government’s only 

legitimate interest is informational” is thus flat wrong. (Pl.’s Mem. at 13.) 

More specifically, the Supreme Court concluded in McConnell that “the important state 

interests that prompted the Buckley Court to uphold FECA’s disclosure requirements . . . apply in 

full to BCRA.” McConnell, 540 U.S. at 196. And, even after the Court had struck down the

electioneering communications financing provisions in Citizens United, it held that BCRA’s 

disclosure requirements for ECs continue to serve informational interests. 558 U.S. at 369.

2

Similarly, even in the context of disclosure about expenditures for which courts have 

struck down expenditure limits, “requiring disclosure” of “who is funding” candidate-related 

speech “deters and helps expose violations of other campaign finance restrictions, such as those 

barring contributions from foreign corporations or individuals.” SpeechNow, 599 F.3d at 698; 

see also Yamada v. Snipes, 786 F.3d 1182, 1187, 1197 (9th Cir. 2015) (holding, in a case in 

which one contribution limit was held unconstitutional as applied, that “disclosure requirements 

provide a valid means of detecting violations of valid contribution limitations, . . . including rules 

that bar contributions by foreign corporations or individuals”) (citations omitted). After Citizens 

 2 The Supreme Court in Citizens United declined to consider “‘other asserted interests’” 

only because “‘the informational interest alone [wa]s sufficient to justify application’” of the 

disclosure provisions in that case. Citizens United, 558 U.S. at 369.

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United, federal law continues to prohibit foreign nationals from financing ECs. See 52 U.S.C. 

§ 30121(a)(1)(C). Disclosure of the funders of ECs thus continues to serve not only the 

informational interest, but also enables “gathering [of] the data necessary to enforce more 

substantive electioneering restrictions.” McConnell, 540 U.S. at 196. 

C. The Supreme Court Has Made Clear That EC Disclosure Requirements for

Advertisements That Are Not Functionally Equivalent to Express Candidate 

Advocacy Are Substantially Related to Important Interests 

In McConnell, the Supreme Court explicitly held, in the specific context of the statutory 

disclosure requirements for ECs, that Buckley “‘amply supports application of [those] disclosure 

requirements to the entire range of ‘electioneering communications.’’” McConnell, 540 U.S. at 

196 (emphasis added). In that portion of the decision, eight Justices agreed that requiring 

disclosure for all ECs serves “the competing First Amendment interests of individual citizens 

seeking to make informed choices in the political marketplace.” Id. at 196-97 (internal quotation 

marks and citation omitted). 

The Court acknowledged that whereas FECA had “limited the coverage of [its] disclosure 

requirement to communications expressly advocating the election or defeat of particular 

candidates,” BCRA’s definition of “‘electioneering communication’ is not so limited.” 

540 U.S. at 189. The Court clarified that Buckley did not establish a “constitutionally mandated 

line” between express candidate advocacy and issue advocacy and Buckley’s “express advocacy 

restriction was an endpoint of statutory interpretation, not a first principle of constitutional law.” 

Id. at 190. The Court found that BCRA’s precise and objective definition of “electioneering 

communication” did not raise any of the vagueness concerns that had led the Buckley Court to 

create its “express advocacy” construction of the otherwise vague statutory definition of 

“expenditure.” McConnell, 540 U.S. at 194. Because the elements of the “electioneering 

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communication” definition “are both easily understood and objectively determinable . . . the 

constitutional objection that persuaded the Court in Buckley to limit FECA’s reach to express 

advocacy is simply inapposite” in evaluating the constitutional scope of BCRA’s definition of 

electioneering communications. Id. (citation omitted). 

More recently, in Citizens United, eight Justices again agreed that BCRA’s EC definition 

is constitutional in the disclosure context, and held that “the public has an interest in knowing 

who is speaking about a candidate shortly before an election.” 558 U.S. at 369. The Court 

explicitly “reject[ed] th[e] contention” that the statutory disclosure requirements for ECs “must 

be confined to speech that is the functional equivalent of express advocacy.” Id. at 368-69. 

Here, however, plaintiff seeks to impose the same limitation on BCRA’s disclosure 

requirements that the Supreme Court explicitly rejected in Citizens United. (E.g. V. Compl. 

¶ 122; Pl.’s Mem. at 14, 37-38.) Plaintiff has sometimes referred to the purported extent of 

communications it views as subject to disclosure as “‘express advocacy or its functional 

equivalent’” (Pl.’s Mem. 37; see also, e.g., id. at 14; V. Compl. ¶ 122;), and at other times 

repackaged that argument by referring to communications that are “unambiguously campaign 

related,” (e.g., Pl.’s Mem. at 13-17, 37). Whichever label plaintiff chooses for the erroneous 

disclosure standard it urges, the Supreme Court has rejected the argument.

Citizens United considered the same statutory disclosure requirements in a context 

directly analogous to the circumstances here. Like the advertisement at issue here, the ads at 

issue in Citizens United mentioned the name of a federal candidate — then-Senator Hillary 

Clinton — but “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); see id. at 276 nn. 2-4 (quoting scripts of 

Citizens United’s proposed ads). Indeed, Citizens United itself emphasized the lack of any 

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express or implicit candidate advocacy in its movie ads and thus argued in favor of a standard 

limiting disclosure requirements to ads containing such advocacy.3 

In any event, plaintiff’s attempts to distinguish Citizens United by comparing the specific 

content of its proposed advertisement with the ads at issue in Citizens United are unavailing. 

Plaintiff insists that its advertisement is “genuine issue speech” that is “not express advocacy or 

its functional equivalent . . . no[r] even close to unambiguously campaign related,” (Pl.’s Mem. 

at 37.) But those characteristics are beside the point. 

There is no dispute that plaintiff’s proposed ad — when it was intended to be broadcast 

— would have met the objective statutory definition of “electioneering communication,” a 

definition the Supreme Court has upheld. See Citizens United, 558 U.S. at 321 (quoting 

definition of “electioneering communication”); see also supra pp. 56. Whether the ad also 

“functions as express advocacy” is irrelevant for determining the constitutional applicability of 

BCRA’s disclosure requirements, because the Supreme Court expressly refused to draw a 

constitutional line between express advocacy and issue advocacy in the BCRA disclosure 

context. Citizens United, 558 U.S. at 368-69. 

Plaintiff’s argument (V. Compl. ¶ 113; Pl.’s Mem. at 14) that BCRA’s definition of 

“electioneering communication” is overbroad to the extent it includes advertisements that do not 

“expressly advocate the election or defeat of a clearly identified candidate” or that are not 

 3 See, e.g., Reply Br. for Appellant, Citizens United v. FEC, No. 08-205, at 25 (S. Ct. Mar. 

17, 2009), available at http://www.fec.gov/law/litigation/cu_sc08_cu_reply.pdf (describing 

Citizens United’s advertisements, one of which “informs viewers that, ‘[i]f you thought you 

knew everything about Hillary Clinton . . . wait ’til you see the movie.’ The other humorously 

presents a ‘kind word about Hillary Clinton’ from conservative commentator Ann Coulter —

‘[s]he looks good in a pant suit’ — and then describes Hillary as ‘a movie about everything 

else.’”; and observing that “[t]he advertisements do not mention an election, Senator Clinton’s 

candidacy for office, her views on political issues — or anything else remotely related to the 

electoral process”).

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“unambiguously campaign related” conflicts directly with the Supreme Court’s holdings to the 

contrary in McConnell and Citizens United, and simply ignores the Court’s clarification that 

Buckley did not establish a “constitutionally mandated line” between express candidate advocacy 

and issue advocacy. McConnell, 540 U.S. at 190. This case is thus “not so much an as-applied 

challenge as it is an argument for overruling a [Supreme Court] precedent.” Republican Nat’l 

Comm. v. FEC, 698 F. Supp. 2d 150, 157 (D.D.C. 2010) (3-judge court). As the Supreme Court 

has explained, however, lower courts must leave to the Supreme Court “the prerogative of 

overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 

484 (1989)). Plaintiff’s constitutional challenge is thus plainly foreclosed by McConnell and 

Citizens United and this Court should, accordingly, award summary judgment in the 

Commission’s favor.4

D. The Courts of Appeals Have Confirmed the Permissibility of EC Disclosure 

Outside the Context of Express Advocacy Advertisements Many Times 

Over the past six years, nine United States circuit courts of appeals have relied on

Citizens United in holding that various federal and state campaign-finance disclosure provisions 

need not be limited to candidate advocacy to survive First Amendment scrutiny. Most recently, 

two federal courts of appeals concluded that Citizens United forecloses plaintiff’s precise 

argument here, i.e., that EC disclosure requirements may only constitutionally be applied to 

express candidate advocacy (or its functional equivalent) and cannot constitutionally be applied 

 4 Plaintiff’s “overbreadth” challenge fails for the separate reason that it is not a proper asapplied claim, and facial challenges to BCRA’s EC definition were resolved more than a decade 

ago by McConnell, 540 U.S. at 196. See New York v. Ferber, 458 U.S. 747, 769 (1982) (“The 

scope of the First Amendment overbreadth doctrine, like most exceptions to established 

principles, must be carefully tied to the circumstances in which facial invalidation of a statute is 

truly warranted.”); Osborne v. Ohio, 495 U.S. 103, 112 (1990) (“[W]e have repeatedly 

emphasized that where a statute regulates expressive conduct, the scope of the statute does not 

render it unconstitutional unless its overbreadth is not only ‘real, but substantial as well, judged 

in relation to the statute’s plainly legitimate sweep.’”).

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to issue advocacy. In Independence Institute II, issued earlier this year, the Tenth Circuit 

rejected a similar First Amendment challenge — by the same plaintiff in this lawsuit (advancing 

many of the same arguments) — to an analogous state law provision. See 812 F.3d at 794 

(explaining that the federal and Colorado EC disclosure requirements are “substantially similar”). 

The court upheld a Colorado statute requiring disclosure of the sources of financing of 

electioneering communications and concluded that “Citizens United is dispositive as to the 

constitutionality of Colorado’s disclosure laws as applied to the Institute’s ad.” Id. at 799. The 

advertisement underlying Independence Institute’s challenge in the Tenth Circuit had the same 

material features as the advertisement underlying its challenge here: both proposed 

communications advocated a position on a policy issue (healthcare or prison reform) and urged 

viewers (or listeners) to contact an incumbent government official (Colorado’s Governor or 

United States Senator), who was up for reelection at the time the ad would be aired, and tell him 

to support legislation in favor of the policy position Independence Institute was advocating in the 

ad. Compare id. at 790-91 (describing proposed ad at issue in Independence Institute II), with V. 

Compl. ¶¶ 3, 31, 32, 35 (describing proposed ad at issue in this case).

In a decision issued last year concerning Delaware’s similar EC disclosure rule, the Third 

Circuit Court of Appeals likewise recognized the Supreme Court’s “consistent[]” holdings that 

“disclosure requirements are not limited to ‘express advocacy’ and that there is not a ‘rigid 

barrier between express advocacy and so-called issue advocacy.’” Del. Strong Families,

793 F.3d at 308 (quoting McConnell, 540 U.S. at 193). The court concluded that “[a]ny 

possibility that the Constitution limits the reach of disclosure to express advocacy or its 

functional equivalent is surely repudiated by Citizens United.” Id. Like the Tenth Circuit’s 

holding described above, the Third Circuit’s conclusion in Delaware Strong Families also

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supports the Commission’s central argument here: Citizens United is binding precedent 

upholding disclosure requirements for electioneering communications that lack express advocacy 

or its functional equivalent, and the decision “surely repudiate[s]” plaintiff’s arguments to the 

contrary. Id. 

In addition, the overwhelming majority of the courts of appeals that have considered the 

issue have similarly held that Citizens United forecloses an argument that other campaignfinance disclosure requirements must be limited to express candidate advocacy (or its functional 

equivalent). See, e.g., Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 132 (2d Cir. 2014) 

(explaining that the Supreme Court in “Citizens United removed any lingering uncertainty 

concerning the reach of constitutional limitations” in the context of campaign-finance disclosure 

requirements when it “expressly rejected the ‘contention that the disclosure requirements must be 

limited to speech that is the functional equivalent of express advocacy’”), cert. denied, 135 S. Ct. 

949 (2015); Worley v. Fla. Sec’y of State, 717 F.3d 1238, 1249 (11th Cir. 2013) (concluding 

Citizens United forecloses an argument that the government lacks an informational interest 

sufficient to require political committee disclosure requirements in the context of a ballot issue 

election); Free Speech v. FEC, 720 F.3d 788, 795-96, 798 (10th Cir. 2013) (explaining that in 

Citizens United, “in addressing the permissible scope of disclosure requirements, the Supreme 

Court . . . found that disclosure requirements could extend beyond speech that is the ‘functional 

equivalent of express advocacy’ to address even ads that ‘only pertain to a commercial 

transaction’” (citation omitted)), cert. denied, 134 S. Ct. 2288 (2014); Real Truth About Abortion 

v. FEC, 681 F.3d 544, 551-52 (4th Cir. 2012) (citing Citizens United’s holding that “mandatory 

disclosure requirements are constitutionally permissible even if ads contain no direct candidate 

advocacy and ‘only pertain to a commercial transaction’” (quoting Citizens United, 558 U.S. at 

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369)); Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 484 (7th Cir. 2012) (“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.”); Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 55 (1st 

Cir. 2011) (citing Citizens United for the proposition that “the distinction between issue 

discussion and express advocacy has no place in First Amendment review of . . . disclosureoriented laws”); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) 

(concluding, in light of Citizens United, that “the position that disclosure requirements cannot 

constitutionally reach issue advocacy is unsupportable”); SpeechNow, 599 F.3d at 696, 698 

(observing that the Supreme Court upheld BCRA’s disclaimer and disclosure requirements as 

applied to Citizens United’s ECs based on “the government’s interest in providing the electorate 

with information” and holding that the FEC may constitutionally require SpeechNow to comply 

with political committee reporting and registration requirements). As the Seventh Circuit 

explained, “[w]ith just one exception, every circuit that has reviewed First Amendment 

challenges to disclosure requirements since Citizens United has concluded that such laws may 

constitutionally cover more than just express advocacy and its functional equivalents, and in each 

case the court upheld the law.” Ctr. For Individual Freedom, 697 F.3d at 484 (footnote omitted); 

see id. at 484 n.17 (collecting cases).

E. There Are Important Interests in Disclosure Related to Advertisements That 

Reference Both Candidates and Legislation 

The government’s interests in disclosure about who is speaking about a federal candidate 

shortly before an election in an advertisement discussing a piece of proposed legislation, like 

plaintiff’s proposed ad, is at least as “sufficiently important” as its interest in insuring the public 

can know who is speaking about a candidate in an advertisement that “only pertain[s] to a 

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commercial transaction.” Citizens United, 558 U.S. at 369. Likewise, if disclosure of a 

commercial ad that “only attempt[ed] to persuade viewers to see [a] film” about a candidate was 

substantially related to the government’s informational interest in Citizens United, id., then 

disclosure of plaintiff’s proposed advertisement must also be substantially related to the 

government’s informational interest here. See, e.g., Hispanic Leadership Fund, Inc. v. FEC, 

897 F. Supp. 2d 407, 429-32 (E.D. Va. 2012) (explaining that “Citizens United ‘upheld BCRA’s 

disclosure requirements for all electioneering communications — including those that are not the 

functional equivalent of express advocacy,’” and concluding that certain communications 

discussing energy policy and the Affordable Care Act are subject to federal disclosure 

requirements for ECs (citing Citizens United, 558 U.S. at 366-67; quoting Real Truth, 681 F.3d 

at 551)). 

In any event, Citizens United and McConnell are consistent with the Supreme Court’s 

earlier decisions finding that the government’s informational interest is sufficient to justify 

mandatory disclosure relating to two different forms of “pure” issue advocacy. First, the 

informational interest has been recognized extensively in the context of issue advocacy regarding 

ballot initiatives. See, e.g., Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 204 

(1999) (upholding requirement to disclose donations made to organizations to pay ballotinitiative petition circulators); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 792 n.32 

(1978) (“Identification of the source of advertising may be required as a means of 

disclosure . . . .”); see also Worley, 717 F.3d at 1249 (“[P]romoting an informed electorate in a 

ballot issue election is a sufficiently important governmental interest to justify the Florida PAC 

regulations.”); Brumsickle, 624 F.3d at 1016 (“Given the Court’s analysis in Citizens United, and 

its holding that the government may impose disclosure requirements on speech, the position that 

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23

disclosure requirements cannot constitutionally reach issue advocacy is unsupportable.”). 

The permissibility of disclosure about ballot-initiative activity is particularly noteworthy 

here because the Supreme Court has held that such activity is inherently issue-focused and does 

not have the same corruptive potential as spending to influence candidate elections. Bellotti, 435 

U.S. at 790 (“The risk of corruption perceived in cases involving candidate elections simply is 

not present in a popular vote on a public issue.” (footnote and citations omitted)); McIntyre v. 

Ohio Elections Comm’n, 514 U.S. 334, 352 n.15 (1995) (quoting Bellotti). These cases further 

undermine plaintiff’s claim that the government lacks a sufficiently important interest in 

requiring the disclosure of “issue advocacy”: The government’s legitimate disclosure interest

necessarily extends to issue speech “so that the people will be able to evaluate the arguments to 

which they are being subjected.” Bellotti, 435 U.S. at 792 n.32; see supra 14-15.

5

 5 For example, plaintiff’s compliance with the EC disclosure requirements could help the 

public evaluate its advertisement. There has been long-standing public interest in plaintiff’s 

funding even outside the electioneering context, confirming that the public uses funding sources 

to evaluate the messages it receives. David Kopel, How Everytown’s background check law 

impedes firearms safety training and self-defense, The Volokh Conspiracy (Nov. 2, 2015)

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/02/how-everytownsbackground-check-law-impedes-firearms-safety-training-and-selfdefense/?postshare=1446574890904 (last visited July 14, 2016) (blog post updated to disclose 

that “Independence Institute has received NRA contributions”); Timothy Johnson, Wash. Post 

Volokh Conspiracy Blog Lets NRA-Funded Writer Attack Background Checks With Debunked 

Myths, Media Matters For America (Nov. 3, 2015)

http://mediamatters.org/blog/2015/11/03/wash-post-volokh-conspiracy-blog-lets-nrafunde/206595 (last visited July 14, 2016 (complaining that Volokh Conspiracy blog post 

“ignores Kopel’s longstanding ties with the NRA, which include large grants given by the NRA 

to the Independence Institute”); Frank Smyth, The Times Has Finally (Quietly) Outed an NRAFunded “Independent” Scholar, The Progressive, (Apr. 23, 2014), 

http://www.progressive.org/news/2014/04/187663/times-has-finally-quietly-outed-nra-funded-

%E2%80%9Cindependent%E2%80%9D-scholar (last visited July 14, 2016) (questioning the 

independence of an Independence Institute scholar who has “establish[ed] himself as an 

independent authority on gun policy issues,” including by testifying before Congress and writing 

opinion pieces for the Wall Street Journal, “even though he and his Independence Institute have 

received over $1.42 million including about $175,000 a year over eight years from the NRA”).

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Second, courts are nearly unanimous in upholding mandatory disclosure of lobbying 

expenditures on the basis of the government’s interest in informing the public as to who is 

attempting to sway the resolution of public issues and how they are attempting to do so. See,

e.g., United States v. Harriss, 347 U.S. 612, 625 (1954) (“[F]ull realization of the American ideal 

of government by elected representatives depends to no small extent on their ability to properly 

evaluate such pressures.”); Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 6 (D.C. Cir. 2009) 

(rejecting a “constitutional challenge to Congress’ latest effort to ensure greater transparency . . . 

[b]ecause nothing has transpired [since the Supreme Court decided Harriss] to suggest that the 

national interest in public disclosure of lobbying information is any less vital than it was when 

the Supreme Court first considered the issue”); Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 

87 F.3d 457, 460 (11th Cir. 1996) (upholding state lobbyist disclosure statutes in light of state 

interest in helping citizens “apprais[e] the integrity and performance of officeholders and 

candidates, in view of the pressures they face”); Minn. State Ethical Practices Bd. v. Nat’l Rifle 

Ass’n of Am., 761 F.2d 509, 512 (8th Cir. 1985) (per curiam) (quoting Harriss).6

 Lobbying, like 

issue advocacy, typically does not involve candidate campaigns; it is issue-oriented political 

activity protected by the First Amendment. Thus, these cases make clear that the government’s 

interest in providing information to the public extends beyond speech about candidate elections 

and encompasses activity that attempts to sway public opinion on issues, just as plaintiff claims it 

wishes to do here.

 6 See also Comm’n on Indep. Coll. & Univ. v. N.Y. Temp. State Comm’n on Regulation of 

Lobbying, 534 F. Supp. 489, 494-95 (N.D.N.Y. 1982) (“The lobby law serves to apprise the 

public of the sources of pressure on government officials, thus better enabling the public to 

access their performance.” (footnote omitted)); Am. Civil Liberties Union of N.J. v. N.J. Election 

Law Enf’t Comm’n, 509 F. Supp. 1123, 1129 (D. N.J. 1981) (“The voting public should be able 

to evaluate the performance of their elected officials in terms of representation of the electors’ 

interest in contradistinction to those interests represented by lobbyists.” (citation omitted)).

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F. All of Plaintiff’s Attempts to Minimize, Distinguish, or Disregard Citizens 

United Lack Merit

In apparent recognition that Citizens United directly and completely forecloses all of 

plaintiff’s constitutional arguments, plaintiff has attempted to minimize the significance of the 

Supreme Court’s eight-Justice disclosure holding. Plaintiff disregards the full scope of the 

Supreme Court’s disclosure holding in Citizens United (Pl.’s Mem. at 15-16) and also purports to 

distinguish that holding based on inaccurate characterizations of the advertisements at issue in 

Citizens United and immaterial differences between Citizens United and plaintiff’s own tax 

status (id. at 17-26). Indeed, based on such arguments, plaintiff apparently believes that Citizens 

United’s disclosure holding is not controlling here, and it urges the Court to rely instead on 

general principles articulated in Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (per curiam) (en 

banc), a D.C. Circuit decision concerning an entirely distinct and since-repealed statutory 

provision that was issued decades before both the Supreme Court’s decisions in McConnell and 

Citizens United, and nearly thirty years before the EC provisions at issue here were even enacted. 

(Pl.’s Mem. at 28, n.18 (declaring that the 1975 Court of Appeals decision in Buckley “remains 

one of the most directly relevant Court of Appeals cases”). As explained below, none of these 

arguments has any merit.

1. Plaintiff’s Out-of-Circuit Authorities Confirm That Citizens United

Forecloses This Challenge

Having eschewed Citizens United and McConnell, plaintiff attempts to rely (Pl.’s Mem. 

at 15-16) on several out-of-circuit decisions, none of which concerns the EC disclosure 

provisions at issue here (or even analogous state-law provisions). All of those decisions are 

either inapposite or actually confirm that Citizens United forecloses this challenge.

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

decision concerning the constitutionality of Wisconsin’s organizational and reporting 

requirements for state political committees, is relevant only to the extent it confirms that Citizens 

United is dispositive of plaintiff’s distinct claims here. In Barland, a panel of the Seventh 

Circuit Court of Appeals questioned the extent to which Citizens United’s holding regarding the 

permissible scope of disclosure requirements applies outside the context of the EC disclosure 

requirements at issue in Citizens United (and here). 751 F.3d at 836. Importantly, the court 

distinguished the Supreme Court’s analysis of BCRA’s EC disclosure requirements from the 

broader political committee organizational and reporting requirements at issue in that case, and 

explicitly acknowledged that the Court in “Citizens United approved event-driven disclosure for 

federal electioneering communications — large broadcast ad buys close to an election,” and 

“declined to enforce Buckley’s express-advocacy limitation” in that precise context. Id.7

 

Barland thus supports the Commission’s position here, not plaintiff’s. 

Plaintiff’s reliance on other out-of-circuit cases involving challenges to an organization’s 

registration and ongoing disclosure obligations (Pl.’s Mem. at 15-16) is similarly misplaced. See 

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 289-90 (4th Cir. 2008) (rejecting on 

constitutional grounds “political committee designation—and its associated burdens,” while 

recognizing that the state could and did constitutionally “impose one-time reporting requirements 

. . . based on the communication, not the organization”); N.M. Youth Organized v. Herrera, 611 

F.3d 669, 676 (10th Cir. 2010) (concluding that state political committee registration and 

 7 As described above, see supra p. 20, two years before the Barland decision, a separate 

panel of the Seventh Circuit Court of Appeals had held more broadly, in the context of a 

constitutional challenge to various state campaign-finance disclosure requirements, that the First 

Amendment permitted disclosure beyond express advocacy. Ctr. for Individual Freedom, 697 

F.3d at 484. 

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ongoing reporting requirements could not be applied to two organizations); Nat’l Right to Work 

Legal Def. and Ed. Found. v. Herbert, 581 F. Supp. 2d 1132, 1154 (D. Utah 2008) (“National 

Right to Work”) (invalidating state law that imposed “political committee burdens” on “a multifaceted organization simply because one of its ‘apparent purposes’ — as perceived by the state 

of Utah — is to influence elections”). Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 2010), upon 

which plaintiff also purports to rely (Pl.’s Mem. at 16), is even farther afield. Cao involved 

political party and candidate contribution and expenditure limits, and does not address disclosure 

requirements at all. None of these cases alters Citizens United’s holding regarding the 

permissible scope of BCRA’s event-driven, EC disclosure requirements. Indeed, North Carolina 

Right to Life and National Right to Work were both decided before Citizens United. Plaintiff is

thus unable to identify a single decision supporting its novel argument that this Court should 

decline to apply Citizens United’s disclosure holding here.

2. Whether Plaintiff’s Proposed Advertisement Contains “Pejorative” 

References to a Candidate Is Irrelevant

In arguing about the tailoring and burden associated with the EC disclosure requirement,

plaintiff repeatedly emphasizes that the proposed advertisements at issue in Citizens United were

“pejorative” (Pl.’s Mem. at 15, 22, 31-36), but the subjective way in which an EC references a 

candidate has no bearing on the extent to which Citizens United and the cases upon which it 

relies are controlling here. Indeed, plaintiff makes too much of the Supreme Court’s subjective, 

parenthetical description of the ads at issue in Citizens United as being “in [the Court’s] view, 

pejorative.” Pl.’s Mem. at 31; V. Compl. ¶ 87; Citizens United, 558 U.S. at 320. The Court 

quoted the objective statutory definition of “electioneering communication” and at no point 

purported to limit the scope of that definition, or the disclosure requirements attendant to it, to 

communications that the Court or anyone else subjectively views as pejorative (or 

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complimentary). Citizens United, 558 U.S. at 321 (“An electioneering communication is defined 

as ‘any broadcast, cable, or satellite communication’ that ‘refers to a clearly identified candidate 

for Federal office’ and is made within 30 days of a primary or 60 days of a general election. The 

Federal Election Commission’s (FEC) regulations further define an electioneering 

communication as a communication that is ‘publicly distributed.’”) (quoting 52 U.S.C. 

§ 30104(f)(3)(A)); 11 C.F.R. § 100.29(a)(2)). 

Plaintiff may view a “pejorative” statement about a candidate as “the functional 

equivalent of express advocacy” (V. Compl. ¶ 87; Pl.’s Mem. 34-35), but the Supreme Court 

requires more. “[T]he functional-equivalent test is objective: ‘a court should find that [a 

communication] is the functional equivalent of express advocacy only if [it] is susceptible of no 

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

Citizens United, 558 U.S. at 325 (quoting WRTL, 551 U.S. at 469-70) (emphasis added); id. at 

326 (explaining that Citizens United’s movie “qualifies as the functional equivalent of express 

advocacy” because “there is no reasonable interpretation of [it] other than as an appeal to vote 

against Senator Clinton”). 

Plaintiff’s arguments here illuminate the reasons for Congress’s adoption of such an 

objective test. As described above, see supra p. 17 n.3, one of the ten-second ads at issue in 

Citizens United stated only “If you thought you knew everything about Hillary Clinton . . . wait 

‘til you see the movie.” Citizens United, 530 F. Supp. 2d at 276 n.2; see Pl.’s Mem. at 31 

(quoting ad). Plaintiff infers that such an ad was “intended to elicit a judgment about Sen. 

Clinton’s fitness to be president as someone (in Citizens United’s view) whose background was 

filled with hidden skeletons and scandal,” and was “certainly related to Senator Clinton’s 

candidacy.” (Pl.’s Mem. at 34-36.) But the Supreme Court itself made no finding that Citizens 

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United’s promotional ads were the equivalent of express candidate advocacy, see Indep. Inst., 70 

F. Supp. 3d at 510, and the vague advertisement quoted above does not contain any express 

description of Hillary Clinton or reference any “hidden skeletons or scandal.” Another viewer of 

the ad surely could have made a different inference about the response it was “intended to elicit.” 

The subjective “pejorative” standard plaintiff advocates here is thus plainly at odds with the 

Supreme Court’s upholding of BCRA’s definition of “electioneering communication” precisely 

because the elements of the definition “are both easily understood and objectively determinable.” 

McConnell, 540 U.S. at 194.

3. The Informational Interest Does Not Vary According to an 

Advertiser’s Tax Status

The fact that plaintiff is organized under a different subsection of the tax code than 

Citizens United does not render this case “distinctly different” from Citizens United, as plaintiff

suggests (V. Compl. ¶ 126; Pl.’s Mem. at 17-26, 27 (characterizing Citizens United as 

inapplicable to organization organized under 26 U.S.C. 501(c)(3)).) The majority opinion in 

Citizens United simply describes that organization as “a nonprofit corporation,” Citizens United

558 U.S. at 319, a broad category that includes plaintiff as well. Indeed, the opinion does not 

even mention which particular section of the tax code Citizens United was organized under, and 

it certainly does not purport to limit its holding to any particular group of advertisers or subset of 

nonprofit corporations. Nothing in Citizens United (or any other case) limits the Supreme 

Court’s disclosure holding to certain types of organizations and plaintiff fails to identify any 

authority supporting its contention that the First Amendment requires this Court to draw such a 

distinction. 

Moreover, the categorical exemption for 501(c)(3) nonprofits that plaintiff advocates here 

would be inconsistent with the Supreme Court’s broad holding in Citizens United regarding the 

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importance of providing the public with access to information about who is funding pre-election 

advertising that references candidates. 558 U.S. at 369. The public’s interest in knowing who 

financed and distributed an electioneering communication is not altered based on which 

subsection of the Internal Revenue Code that entity relies on for its tax exemption. As the 

Seventh Circuit Court of Appeals has observed, “the voting ‘public has an interest in knowing 

who is speaking about a candidate shortly before an election,’ whether that speaker is a political 

party, a nonprofit advocacy group, a for-profit corporation, a labor union, or an individual 

citizen.” Ctr. for Individual Freedom, 697 F.3d at 490 (quoting Citizens United, 558 U.S. at 

369). 

In recognition of the irrelevance of an organization’s tax status to evaluating the 

constitutionality of EC disclosure requirements, the Third Circuit expressly refused to rely on 

another “organization’s status with the Internal Revenue Service” to determine the 

constitutionality of Delaware’s similar EC disclosure rule. Del. Strong Families, 793 F.3d at 

308-09. As that Court of Appeals recognized, the EC disclosure rule “and § 501(c)(3) . . . are 

separate and unrelated,” and there is “no compelling reason to defer to the § 501(c)(3) scheme in 

determining which communications require disclosure under” the separate statutory provisions 

regulating ECs. Id. at 308. 

Another court’s concerns about problems that could arise from the Commission’s 

“effective delegation” of its authority over campaign finance regulation to the IRS were part of 

why that court invalidated a former FEC regulation that created the very exemption plaintiff 

advocates here. See Indep. Inst., 70 F. Supp. 3d at 509-10 n.12 (discussing the FEC’s 2003 

regulation that exempted 501(c)(3) organizations from BCRA’s EC disclosure requirements and 

explaining that the rule was invalidated after failing review under the Administrative Procedure 

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Act (citing Shays v. FEC, 337 F. Supp. 2d 28, 128 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 

2005)). As the court in Shays explained, “the IRS in the past has not viewed Section 501(c)(3)’s 

ban on political activities to encompass activities that are so considered under FECA.” 337 F. 

Supp. 2d at 127. Section 501(c)(3) organizations, in fact, have engaged in extensive spending on 

ECs. See, e.g., Conciliation Agreement, In the Matter of S. All. for Clean Energy, Pre-MUR 575, 

¶ IV, http://eqs.fec.gov/eqsdocsMUR/16044394917.pdf (describing an electioneering 

communication of approximately $370,000 by a 501(c)(3) organization).8

 

Tax status is generally not dispositive of an organization’s compliance with other federal 

laws. See, e.g., NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 100 n.22 (1984) 

(holding nonprofit tax status does not exempt organization from antitrust laws); Zimmerman v. 

Cambridge Credit Counseling Corp., 409 F.3d 473, 478 (1st Cir. 2005) (explaining that the 

Federal Trade Commission “determines, without reference to a target organization’s tax-exempt 

status, whether the organization in fact operates as a nonprofit and is therefore beyond its 

jurisdiction”); In re Grand Jury Proceedings v. Hutchinson, 633 F.2d 754, 757 (9th Cir.1980) 

(holding that “treatment for tax purposes is largely irrelevant to the determination of whether it is 

an organization separate and apart from its creator”).

Plaintiff points to general differences in tax treatment between nonprofits organized 

under section 501(c)(3) of the Internal Revenue Code and nonprofits organized under section 

501(c)(4), but fails to establish any material differences undercutting the governmental interests 

in EC disclosure. The relevant disclosure obligations, for example, are no different: Neither 

type of nonprofit organization is obligated by federal tax law to disclose donor information. See 

 8 Under plaintiff’s view, the public has no interest in learning who financed the 

advertisement at issue in that matter, which urged viewers to “[t]hank Senator Hagan for fighting 

for commonsense air quality protections” shortly before her re-election. Id. The First 

Amendment requires no such result. 

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26 U.S.C. § 6104(d)(3)(A). The Supreme Court referred to the disclosure of donors by Citizens 

United in that organization’s case, but was referring to donors to its connected political 

committee or PAC. 558 U.S. at 370. Donors to Citizens United proper, the 501(c)(4) 

organization, are not publicly disclosed and plaintiff’s attempt to distinguish itself from such 

(c)(4) organizations thus fails. (Pl.’s Mem. at 22-23.) 

In any event, and as the Ninth Circuit recently explained, even if Congress limited the 

disclosure obligations of certain entities under the Internal Revenue Code, federal tax-law 

provisions “do not broadly prohibit other government entities from seeking that information 

directly from the organization. Nor do they create a pervasive scheme of privacy protections. 

Rather, [the Internal Revenue Code provisions] represent exceptions to a general rule of 

disclosure.” Ctr. for Competitive Politics v. Harris, 784 F.3d 1307, 1319 (9th Cir.), cert. denied, 

136 S. Ct. 480 (2015) (declining to preliminarily enjoin enforcement of a state law imposing 

certain disclosure requirements on charitable organizations). 

There is no constitutional basis for distinguishing between different types of nonprofits

for purposes of determining the applicability of BCRA’s EC disclosure obligations. And 

plaintiff’s related attempt to distinguish Citizens United based on its claim that what it and 

Citizens United actually do “is vastly different” (Pl.’s Mem. at 22), is just an attempt to inject 

subjectivity into BCRA’s EC definition, contrary to the Supreme Court’s explicit preference for a 

clear and objective standard. See McConnell, 540 U.S. at 194; supra p. 6.

II. DECISIONS REGARDING VERY DIFFERENT PROVISIONS SUCH AS 

FINANCING RESTRICTIONS AND IN-PERSON LEAFLETTING ARE 

INAPPOSITE 

Plaintiff (and its amici) insist that court decisions concerning entirely different 

provisions, including laws that prohibited certain speech, are more instructive than either of the 

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two Supreme Court decisions upholding the precise statute at issue here and rejecting the same 

arguments plaintiff advances in this case. (See Amicus Br. of Free Speech Defense and Educ. 

Fund, et al., at 5-15 (Docket No. 38-1).) The opinions to which plaintiff cites provide no escape 

from the binding precedent that foreclose its claims. 

In particular, plaintiff’s reliance (Pl.’s Mem. at 13-14) on the portion of the Supreme 

Court’s opinion in Buckley that considered FECA’s then-$1,000 limit and disclosure 

requirements for expenditures by any person “relative to” a federal candidate is entirely 

misplaced. As the Supreme Court later explained in McConnell, in that context, the Buckley

Court distinguished between express advocacy and issue advocacy “to avoid problems of 

vagueness and overbreadth” presented by the phrase “relative to” in the original statutory 

definition “expenditure.” 540 U.S. at 191-92 McConnell (citing Buckley, 424 at 40-44). The 

Court in Buckley thus construed “expenditure” narrowly to encompass only “expenditures for 

communications that in express terms advocate the election or defeat of a clearly identified 

candidate for federal office.” Buckley, 424 U.S. at 44, 79. Plaintiff simply ignores the Supreme 

Court’s independent holding in McConnell that BCRA’s EC definition, unlike FECA’s original 

definition of “expenditure,” is neither vague nor overbroad; instead, its elements are “both easily 

understood and objectively determinable.” 540 U.S. at 194; cf. Wis. Right to Life, 551 U.S. at 

476 n. 8 (“[I]n deciding this as-applied challenge [to BCRA’s definition of EC], we have no 

occasion to revisit McConnell’s conclusion that the statute is not facially overbroad.”). 

Buckley’s statutory construction is plainly inapplicable to BCRA and provides no support for 

plaintiff’s assertion that BCRA’s EC disclosure requirement must be limited to express advocacy 

and its functional equivalent. Instead, and as explained supra p. 15, Buckley “amply supports 

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application of [BCRA’s] disclosure requirements to the entire range of ‘electioneering 

communications.’” McConnell, 540 U.S. at 196 (emphasis added). 

Plaintiff’s reliance on the Supreme Court’s decision in Wisconsin Right to Life (e.g. Pl.’s 

Mem. at 6, 8, 24, 28 29) is equally misplaced. In that case, the Court narrowed the permissible 

scope of BCRA’s former prohibition on certain electioneering communications, but did not at all 

address BCRA’s disclosure requirements for such communications. 551 U.S. at 455-56, 476. 

Plaintiff’s suggestion that this Court should apply Wisconsin Right to Life’s functionalequivalent-of-express-advocacy standard to BCRA’s disclosure requirements is the same 

argument that the Supreme Court explicitly rejected in Citizens United. See Citizens United, 558 

U.S. at 368-69 (explaining that the Court in Wisconsin Right to Life limited BCRA’s former ban 

on corporate independent expenditures “to express advocacy and its functional equivalent,” and 

“reject[ing] th[e] contention” advocated by Citizens United that the First Amendment requires 

that “a similar distinction” must be “import[ed] . . . into BCRA’s disclosure requirements” 

(emphasis added)).

Plaintiff also errs in relying on the D.C. Circuit’s 27-year-old analysis of a dramatically 

different (and far broader) disclosure provision that has since been repealed. Far from serving as 

“one of the most directly relevant Court of Appeals cases” to this challenge (Pl.’s Mem. at 28 

n.18), the D.C. Circuit’s 1975 Buckley decision is entirely inapposite. In that case, the Court of 

Appeals upheld a range of disclosure requirements, while invalidating a broad, catch-all 

provision on overbreadth and vagueness grounds. 519 F.2d at 874-78. The catch-all provision 

required any group that “commits any act directed to the public for the purpose of influencing the 

outcome of an election . . . [to] file reports with the Commission as if such [group] were a 

political committee.” Id. at 869-70 (quoting former 2 U.S.C. § 437a). Indeed, the breadth of 

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former section 437a was central to the court’s analysis, which “emphasize[d] that [its] holding on 

statutory vagueness and overbreadth rests on the peculiar context of § 437a.” Id. at 878 n.142. 

That provision “bears no resemblance to the disclosure requirements in BCRA section 201 and 

sheds no light on the Court’s consideration of them,” as Judge Kollar-Kotelly correctly 

concluded. Indep. Inst., 70 F. Supp. 3d at 514-15 n.17. 

Finally, McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995), upon which amici rely 

(Br. Amicus Curiae of Free Speech Defense and Educ. Fund, et al., at 5-12), is also completely 

inapposite. McIntyre concerned a state law requiring in-person identification of pamphlet 

distributors and was decided long before both Congress’s enactment of BCRA and the Supreme 

Court’s two decisions upholding its disclosure requirements. The Court’s earlier invalidation of 

an entirely distinct state law plainly does not supersede its more recent holdings on the precise 

issue here. Indeed, the McIntyre Court distinguished the “anonymous campaign literature” at 

issue there from the financial disclosures required by FECA. McIntyre, 514 U.S. at 353. And 

the Court expressly limited its holding to “leaflets of the kind Mrs. McIntyre distributed,” 

disclaiming any application to “communications uttered over the broadcasting facilities of any 

radio or television station.” McIntyre, 514 U.S. at 338 n.3. Broadcasting is, of course, the 

exclusive medium for ECs.

Courts have distinguished the mandatory in-person identification at issue in McIntyre 

from other provisions requiring after-the-fact filings with a government agency and held that the 

latter are reviewed under a lower standard. See, e.g., Am. Constitutional Law Found., 525 U.S. 

at 198 (striking down statute requiring petition-circulators to wear name badges but upholding 

statute requiring them to file affidavits identifying themselves); Worley, 717 F.3d at 1247

(distinguishing McIntyre); Majors v. Abell, 361 F.3d 349, 353-54 (7th Cir. 2004) (same). As the 

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Supreme Court has explained, the in-person, “one-on-one” nature of the communication was 

crucial to its decision in McIntyre. Am. Constitutional Law Found., 525 U.S. at 199. McIntyre

has no bearing here. 

III. PLAINTIFF FAILS TO IDENTIFY ANY UNCONSTITUTIONAL BURDEN 

ARISING FROM THE EC DISCLOSURE REQUIREMENTS

A. There is No Reasonable Probability That Plaintiff’s Compliance with the EC 

Disclosure Requirements Will Result in Threats, Harassment, or Reprisals 

Buckley, McConnell, and Citizens United all recognized that as-applied challenges to 

disclosure requirements might be appropriate in a single situation: when an organization’s 

disclosure would result in a “reasonable probability” of “threats, harassment, or reprisals” of its 

members. Citizens United, 558 U.S. at 367 (quoting McConnell, 540 U.S. at 198; Buckley, 424 

U.S. at 74). Plaintiff has stipulated, and the Court has ordered, however, that this case does not 

include any allegations or evidence that there is a “reasonable probability” that complying with 

the challenged disclosure provisions will subject plaintiff’s donors to any threats, harassment, or 

reprisals. (Joint Stip. at 1.) Buckley, McConnell, and Citizens United recognized harassment as a 

potential burden, but specifically found no evidence or danger of actual harassment of the 

plaintiffs in those cases and held that such evidence would be required to mount an as-applied 

First Amendment challenge to the Act’s disclosure provisions. Buckley, 424 U.S. at 69 (“No 

record of harassment on a similar scale was found in this case.”) (footnote omitted); McConnell, 

540 U.S. at 199 (upholding lower court finding that “concerns” of plaintiffs regarding 

harassment were unsupported due to “lack of specific evidence”); Citizens United, 558 U.S. at 

367 (same). The Joint Stipulation and Order in this case conclusively establishes the absence of 

any evidence or danger of threats, harassment, or reprisals as a result of complying with the 

challenged disclosure requirements here. 

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B. Plaintiff Has Failed to Show that the EC Disclosure Requirements Otherwise

Burden its First Amendment Rights 

Citizens United and McConnell also clearly foreclose plaintiff’s generalized claim that 

“BCRA’s regulation of electioneering communications chills discussion of public policy issues.” 

(V. Compl. ¶ 6; see Pl.’s Mem. at 11 (claiming that BCRA’s EC disclosure requirements “chill[] 

. . . issue speech”).) But even if such a claim were not foreclosed, plaintiff fails even to allege, 

let alone offer evidence of, any specific manner in which the EC disclosure requirements would 

“chill” its ability to exercise its First Amendment rights. 

The Ninth Circuit recently rejected precisely the same arguments in a constitutional 

challenge to state-law disclosure requirements brought by the organization and counsel that 

represent plaintiff here. See Ctr. for Competitive Politics, 784 F.3d at 1312-17. That Court of 

Appeals held, under the Buckley framework, that when an organization neither claimed nor 

produced evidence to suggest that its donors would experience threats, harassment, or other 

chilling conduct as a result of its compliance with the challenged disclosure requirement, it had 

“not demonstrated any ‘actual burden,’ . . . on its or its supporters’ First Amendment rights.” Id.

at 1314 (citation omitted). The court further held that “contrary to CCP’s contentions, no case 

has ever held or implied that a disclosure requirement in and of itself constitutes First 

Amendment injury.” Id. at 1316.

C. Plaintiff Need Not Disclose All of Its Donors In Order to Air ECs

Plaintiff also exaggerates the scope of its disclosure obligations under BCRA’s disclosure 

scheme. Plaintiff’s claimed concern about “the very real possibility of being required to disclose 

all of its donors” (Pl.’s Mem. at 10 n.3) fails to account for the statutory and regulatory 

provisions permitting those who finance and distribute ECs to limit the scope of their donor 

disclosure by financing their ECs with funds from a “segregated bank account established to pay 

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for electioneering communications,” 52 U.S.C. § 30104(f)(2)(E); 11 C.F.R. § 104.20(c)(7). 

Under those provisions, only those individuals who contributed $1,000 or more to the account 

itself must be disclosed. 52 U.S.C. § 30104(f)(2)(E); 11 C.F.R. § 104.20(c)(7). As the Seventh 

Circuit’s Barland decision, on which plaintiff relies, described them, BCRA’s statutory EC 

requirements are “specific and narrow.” Barland, 751 F.3d at 836.

In addition, plaintiff’s alleged fear of having to disclose “every donor who gives more than 

$1,000 to the organization” (V. Compl. ¶ 124) is baseless because, as plaintiff acknowledges, 

“the Commission does not read the statute in this manner.” (Id. (emphasis added); see also Pl.’s 

Mem. at 9 n.3.) The applicable regulation, 11 C.F.R. § 104.20(c)(9), provides that corporations 

need only disclose those who donated “for the purpose of furthering electioneering 

communications,” and the Court of Appeals recently upheld the rule as a “reasonable” 

construction of the FEC’s “wide latitude” to interpret BCRA’s EC disclosure requirements. Van 

Hollen v. FEC, 811 F.3d 486, 492-94 (D.C. Cir. 2016).

Plaintiff’s page-long footnote (Pl.’s Mem. at 9-10 n.3) about the burdens it could face if 

the Court of Appeals (1) grants the pending petition for rehearing en banc in Van Hollen, and 

(2) reverses the appellate panel’s unanimous decision in that case and invalidates the 

Commission’s regulation, fails to identify any actual and imminent harm to plaintiff sufficient to 

support Article III standing (regarding those harms) or to show an actual controversy ripe for 

adjudication. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 n.2 (1992) (future injury must be 

“at least imminent,” in the sense that it is “certainly impending”); Williams v. Lew, 819 F.3d 466, 

474 (D.C. Cir. 2016) (dismissing case where plaintiff “fail[ed] to allege future harms that are 

certainly impending”). Plaintiff’s speculation about harm resulting from a possible rehearing and 

reversal in Van Hollen fails “to ensure that [this Court] does not render an advisory opinion in ‘a 

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case in which no injury would have occurred at all.’” Animal Legal Def. Fund v. Espy, 23 F.3d 

496, 500 (D.C. Cir. 1994) (quoting Lujan, 504 U.S. at 564 n.2). For the same reasons, such 

speculation also fails to present a controversy sufficient for judicial intervention under the 

prudential ripeness doctrine. See Gates v. Syrian Arab Republic, 646 F.3d 1, 4 (D.C. Cir. 2011)

(“A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur 

as anticipated, or indeed may not occur at all’”) (quoting Texas v. United States, 523 U.S. 296, 

300 (1998); Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). 

Finally, and setting aside this Court’s inability to decide a constitutional question premised 

on speculation about what the Court of Appeals might do in another case, McConnell and 

Citizens United make clear that the statutory disclosure requirements for ECs survive First 

Amendment scrutiny without regard to the presence or absence of the Commission’s regulation

challenged in Van Hollen, 11 C.F.R. § 104.20(c)(9). Plaintiff simply ignores the fact that the 

Supreme Court in McConnell considered and upheld BCRA’s disclosure requirements for ECs in 

2003, before the regulation at issue in Van Hollen was promulgated, as well as the fact that the 

regulation has never applied to entities that are neither unions nor incorporated. See supra p. 7-8. 

Plaintiff similarly disregards Citizens United’s upholding of the statutory provisions without 

relying on, let alone considering or even mentioning in passing, the Commission’s regulation. 

Notably, that part of Citizens United’s holding rested on Congress’s goal of addressing through 

BCRA’s EC provisions “a system without adequate disclosure” and to create one with “effective 

disclosure” that is especially “informative” given today’s technology. 558 U.S. at 370. Citizens 

United itself thus belies any suggestion that the Supreme Court in that case sub silentio relied on

a particular limiting constructions of the statute it upheld.

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IV. THE FEC DOES NOT DISPUTE THAT PLAINTIFF’S CLAIMS SATISFY THE

CAPABLE-OF-REPETITION-YET-EVADING-REVIEW EXCEPTION TO 

MOOTNESS

As described above, see supra p. 11, at oral argument regarding plaintiff’s procedural 

appeal, counsel for the FEC stated that in light of plaintiff’s representations in its press release 

that it intends “to run substantively similar advertisements to the one at issue here” in future EC 

periods, Appellant’s Mot. to Supplement R., Indep. Inst., No. 14-5249, at 2 (D.C. Cir. Sept. 24, 

2015 (Docket No. 1574833), the FEC no longer disputed that plaintiff’s claims fall within the 

capable-of-repetition-yet-evading-review exception to mootness (see Pl.’s Mem. at 5 & n.2). 

The Commission maintains that position here. See generally Wis. Right to Life, 551 U.S. at 462. 

Plaintiff has further suggested that its claims are now live for the additional reason that Senator 

Bennet is referenced in the proposed advertisement at issue here and currently up for reelection,

but plaintiff has not alleged its continuing intent to distribute that particular advertisement. (Pl.’s 

Mem. at 41 n.32.) Setting aside that contention, plaintiff’s press release and other theories for 

satisfying the exception to mootness appear sufficient under prevailing law, particularly the 

Supreme Court’s holding in Wisconsin Right to Life. 

CONCLUSION

For the foregoing reasons, the Court should grant the Commission’s cross-motion for 

summary judgment, deny plaintiffs’ motion for summary judgment, and award judgment to 

the FEC.

 Respectfully submitted,

Daniel A. Petalas (D.C. Bar No. 467908)

Acting General Counsel

dpetalas@fec.gov

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Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel — Law

lstevenson@fec.gov

Kevin Deeley

Acting Associate General Counsel

kdeeley@fec.gov

Erin Chlopak (D.C. Bar No. 496370)

Acting Assistant General Counsel

echlopak@fec.gov

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar No. 462840)

Attorney

gmueller@fec.gov

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463

(202) 694-1650

July 19, 2016 

Case 1:14-cv-01500-CKK-PAM-APM Document 42 Filed 07/19/16 Page 49 of 49