ORAL ARGUMENT NOT YET SCHEDULED

No. 14-5249

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEPENDENCE INSTITUTE,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Appeal from the United States District Court for the 

District of Columbia, No. 1:14-cv-1500 (CKK)

BRIEF AMICI CURIAE FOR CAMPAIGN LEGAL CENTER, 

DEMOCRACY 21 AND PUBLIC CITIZEN, INC. IN SUPPORT OF 

DEFENDANT-APPELLEE AND URGING AFFIRMANCE

Fred Wertheimer 

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, D.C. 20036 

(202) 429-2008

Donald J. Simon

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, D.C. 20005

(202) 682-0240

Charles Fried

1545 Massachusetts Avenue 

Cambridge, MA 02138

Counsel for Amici Curiae

J. Gerald Hebert*

Tara Malloy

Lawrence M. Noble

Megan McAllen

THE CAMPAIGN LEGAL CENTER

1411 K Street, NW, Suite 1400

Washington, D.C. 20005

(202) 736-2200

Scott L. Nelson

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, D.C. 20009

(202) 588-1000

Counsel for Amici Curiae

*Counsel of Record

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CORPORATE DISCLOSURE STATEMENT

The Campaign Legal Center is a non-profit organization organized under 

Section 501(c)(3) of the Internal Revenue Code. The Campaign Legal Center 

neither has a parent corporation nor issues stock. There are no publicly held 

corporations that own ten percent or more of the stock of the Campaign Legal 

Center.

Democracy 21 is a non-profit organization organized under Section 

501(c)(3) of the Internal Revenue Code. Democracy 21 neither has a parent 

corporation nor issues stock. There are no publicly held corporations that own ten 

percent or more of the stock of Democracy 21.

Public Citizen, Inc. is a non-profit corporation dedicated to openness in 

government and the protection of individuals against overreaching by government 

and corporate entities alike. Public Citizen neither has a parent corporation nor 

issues stock. There are no publicly held corporations that own ten percent or more 

of the stock of Public Citizen.

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), amici curiae submit their Certificate 

as to Parties, Rulings, and Related Cases:

(A) Parties and Amici. Independence Institute was the plaintiff in the district 

court and is the appellant in this Court. The Commission was the defendant in the 

district court and is the appellee in this Court. Amici curiae in the proceedings 

before the district court were the Campaign Legal Center, Democracy 21, and 

Public Citizen, Inc. In this Court, amici briefs have been filed by (1) Citizens 

United, Citizens United Foundation, Conservative Legal Defense and Education 

Fund, Free Speech Coalition, Free Speech Defense and Education Fund and U.S. 

Justice Foundation, and (2) the Campaign Legal Center, Democracy 21, and Public 

Citizen, Inc.

(B) Rulings Under Review. Independence Institute appeals the October 6,

2014 order of the United States District Court for the District of Columbia (KollarKotelly, J.) denying its application for a three-judge court, entering judgment for 

the Commission, and dismissing the case.

(C) Related Cases. Amici curiae are aware of no related cases.

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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT......................................................i

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES...... ii

TABLE OF AUTHORITIES ..................................................................................v

GLOSSARY.......................................................................................................... viii

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

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

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

I. The Institute’s Attempt to Restrict Disclosure Laws to Express 

Advocacy Is Foreclosed by Supreme Court Precedent.........................5

A. McConnell Upheld the Electioneering Communications

Disclosure Provisions on Their Face as to “the Entire Range of 

Electioneering Communications” ....................................................5

B. Citizens United Sustained Disclosure Provisions as Applied to 

Ads That Were Not the Functional Equivalent of Express 

Advocacy..........................................................................................7

C. No Legal Authority Supports the Institute’s Position....................11

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

2. Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 

(7th Cir. 2014) .........................................................................14

II. The Supreme Court Has Repeatedly Approved of Measures 

Requiring Disclosure in Connection with “Issue Advocacy”.............17

A. Disclosure Laws Are Not Limited by an “Unambiguously 

Campaign Related” Test. ...............................................................17

B. The Institute’s Newly-Formulated “Unambiguously Campaign 

Related” Requirement Is Contradicted by Supreme Court 

Decisions Upholding Disclosure Laws in Non-Campaign 

Related Contexts ............................................................................19

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III. The Institute’s As-Applied Challenge to the BCRA Disclosure 

Provisions Fails.......................................................................................22

A. The Institute’s “As-Applied” Challenge Is Indistinguishable 

from the Claims Brought in McConnell and Citizens United........22

B. The Institute Fails to Distinguish the Circumstances of its Case 

from Those of Citizens United and McConnell .............................24

1. The Institute’s Status as a Section 501(c)(3) Organization 

Is Immaterial to the Constitutionality of a Disclosure 

Requirement..............................................................................24

2. The Supreme Court Has Made Clear that Donor Disclosure 

Need Not Be Limited to Donors Who “Earmark” Their 

Funds for Election Ads .............................................................27

CONCLUSION.......................................................................................................31

CERTIFICATE OF COMPLIANCE .....................................................................i

CERTIFICATE OF SERVICE ............................................................................. ii

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TABLE OF AUTHORITIES

Authorities upon which the amici curiae principally rely are marked with an 

asterisk.

Cases:

*Buckley v. Valeo, 424 U.S. 1 (1976)......................................................3, 13, 18, 23

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975)........................................12, 13, 14

Cal. Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003)...........................21

Ctr. for Indv’l Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012)......15, 16, 22, 30

Ctr. for Indv’l Freedom v. Tennant, 706 F.3d 270 (4th Cir. 2013) .........................30

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981)................21

*Citizens United v. FEC, 558 U.S. 310 (2010) .......... 1, 4, 5, 8, 9, 10, 16, 19, 23, 24

Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008)..............................9, 10

Family PAC v. McKenna, 685 F.3d 800 (9th Cir. 2011).........................................30

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

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)........................ 20-21

Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) ..........17, 22

*McConnell v. FEC, 540 U.S. 93 (2003)................ 1, 3, 4, 5, 7, 9, 10, 11, 14, 23, 24

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011).............................17

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (threejudge court), aff’d, 130 S. Ct. 3544 (2010) .............................................................23

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. 

Cir. 2005) ...........................................................................................................24, 26

United States v. Harriss, 347 U.S. 612 (1954).................................................. 19-20

Van Hollen v. FEC, No. 11-0766, 2014 WL 6657240 (D.D.C. Nov. 25, 

2014) ........................................................................................................................27

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

2012) (unpublished).................................................................................................30

Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118 (2d Cir. 2014) ....................17

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014)........ 9, 15-16

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

134 S. Ct. 529 (U.S. 2013).......................................................................................22

Federal Statutes:

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

Stat. 1263..................................................................................................................14

26 U.S.C. § 501(c)(3).........................................................................................24, 26

26 U.S.C. § 6104(c)(3).............................................................................................25

26 U.S.C. § 6104(d)(3)(A).......................................................................................25

52 U.S.C. § 30102(h)...............................................................................................14

52 U.S.C. § 30103....................................................................................................14

52 U.S.C. § 30104(a) ...............................................................................................14

52 U.S.C. § 30104(b)...............................................................................................14

52 U.S.C. § 30104(f)............................................................................................1, 14

52 U.S.C. § 30104(f)(1)...........................................................................................28

52 U.S.C. § 30104(f)(2)(F) ................................................................................27, 29

52 U.S.C. § 30104(f)(2)(E)................................................................................27, 29

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

Federal Regulations and Administrative Materials:

11 C.F.R. § 104.20(c)(9)....................................................................................27, 28

Rev. Rul. 2007-41, 2007-1 C.B. 1421 .....................................................................26

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Explanation and Justification for Final Rules on Electioneering 

Communications (“E & J”), 72 Fed. Reg. 72,899 (Dec. 26, 2007).........................27

Miscellaneous Resources:

Br. for Appellant, Citizens United v. FEC (No. 08-205)...........................................4

Br. for Appellee, Citizens United v. FEC (No. 08-205) ............................................4

Notice of Appeal, Van Hollen v. FEC (No. 15-5017) .............................................28

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GLOSSARY

BCRA - Bipartisan Campaign Reform Act of 2002

FEC - Federal Election Commission

FECA - Federal Election Campaign Act

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STATEMENT OF INTEREST1

Amici curiae Campaign Legal Center, Democracy 21 and Public Citizen, 

Inc. are nonprofit organizations that work to strengthen the laws governing 

campaign finance and political disclosure. Amici have participated in many of the 

Supreme Court cases cited by the Independence Institute (the “Institute”) as 

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

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

have a demonstrated interest in the challenged law.2

SUMMARY OF ARGUMENT

The Institute challenges the constitutionality of the federal “electioneering 

communication” disclosure provisions, 52 U.S.C. § 30104(f), as applied to an ad 

referencing U.S. Senators Mark Udall and Michael Bennet that it wished to run on 

broadcast television shortly before the 2014 general election. Senator Udall was a 

candidate for re-election in 2014. Consequently, the ad was an electioneering 

communication and the provisions challenged here would have required the 

Institute to make certain disclosures about the financing of the ad.

 

1 No party or party’s counsel authored this brief in whole or in part, and no 

person, other than the amici curiae contributed money intended to fund the 

preparation or submission of this brief.

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

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The crux of the Institute’s argument below was that its ad does not constitute 

express advocacy or its functional equivalent, and disclosure laws must be limited 

to these two forms of communications. But the Supreme Court specifically 

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

United. Accordingly, the district court below correctly declined to convene a 

three-judge court, explaining that the Institute’s suit was “foreclosed by clear 

United States Supreme Court precedent, principally by Citizens United.” Joint 

Appendix (“J.A.”) 38. 

On appeal, the Institute presses the same invalid constitutional argument, but 

attempts to refresh it with new terminology, declaring now that the test for a 

disclosure law is whether it extends beyond “unambiguously campaign related” 

communications. Pl.-Appellant’s Opening Br. (Apr. 8, 2015), 11. Thus, instead of 

requesting an exception for its ad because it is not “the functional equivalent of 

express advocacy,” J.A. 39, the Institute now demands an exception because its ad 

is allegedly not “unambiguously campaign related.” This is a distinction without a 

difference. As the Institute concedes, these “tests” are virtually synonymous. 

Appellant Br. 38 (defining “unambiguously campaign related” speech as a 

“category of speech which, while falling short of express advocacy, functions in 

the same way”). Relabeling its argument does not make the Institute’s case any 

stronger, nor does it make Citizens United any less controlling here. 

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Congress enacted the electioneering communication disclosure law as part of 

the Bipartisan Campaign Reform Act of 2002 (“BCRA”) to improve existing 

disclosure provisions in the Federal Election Campaign Act (“FECA”), which had 

been construed by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976) “to 

reach only. . . communications that expressly advocate[d] the election or defeat of 

a clearly identified candidate.” Id. at 80 (emphasis added). Under FECA, political 

advertisers could easily evade disclosure simply by omitting these “magic words” 

of express advocacy. The electioneering communication disclosure provisions

were meant “to replace the narrowing construction of [FECA’s] disclosure 

provisions adopted ... in Buckley.” McConnell, 540 U.S. at 189. And to avoid the 

vagueness concerns that led to Buckley’s narrowing construction, Congress defined 

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

“electioneering communication” is a “broadcast, cable, or satellite communication” 

that “refers to a clearly identified federal candidate,” is “targeted to the relevant 

electorate,” and airs within sixty days of general election or thirty days of a 

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

BCRA’s disclosure provisions were challenged on their face in McConnell

on exactly the same grounds as the Institute asserts here: the law regulated 

“‘communications’ that do not meet Buckley’s definition of express advocacy”—or 

rephrased in the Institute’s new terminology, that are not “unambiguously 

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campaign related.” 540 U.S. at 190. The Supreme Court, however, upheld the

disclosure provisions as to “the entire range of electioneering communications,” 

regardless of whether such communications constituted express advocacy or its 

functional equivalent. Id. at 196.

In Citizens United, the BCRA disclosure provisions were again challenged, 

this time as applied to advertisements promoting a documentary about thencandidate Hillary Clinton. All the parties agreed that the ads were not express 

advocacy or its equivalent. Br. for Appellant at 51, Citizens United (No. 08-205); 

Br. for Appellee at 36. But the Supreme Court held in an 8-1 decision that the 

public nevertheless had “an interest in knowing who is speaking about a candidate 

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

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

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

According to the Institute, however, the twice-affirmed BCRA disclosure 

law is unconstitutional because it requires disclosure in connection to “genuine 

issue advocacy,” i.e., speech that is not “unambiguously campaign related.” Id. at, 

e.g., 17, 20, 26, 30-33, 36. But the Supreme Court directly rejected exactly this 

type of attempt to limit the BCRA disclosure requirements. The Institute’s entire 

case is an attempt to persuade this Court that the eight members of the Supreme 

Court who upheld the disclosure provisions in both in McConnell and Citizens 

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United did not mean what they said. This Court should reject the Institute’s 

attempt and affirm the district court judgment below. 

ARGUMENT

I. The Institute’s Attempt to Restrict Disclosure Laws to Express 

Advocacy Is Foreclosed by Supreme Court Precedent.

The Supreme Court has twice considered—and twice upheld—the federal

electioneering communication disclosure provisions: facially in McConnell, 540 

U.S. at 196, and as applied in Citizens United, 558 U.S. at 367. In both cases, the 

Supreme Court rejected attempts to limit the federal disclosure law to express 

advocacy or its functional equivalent. 

A. McConnell Upheld the Electioneering Communications Disclosure

Provisions on Their Face as to “the Entire Range of 

Electioneering Communications.”

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

drew a constitutionally mandated line between express advocacy and so-called 

issue advocacy.” 540 U.S. at 190. The plaintiffs there argued that disclosure 

requirements could not constitutionally extend to electioneering communications 

“without making an exception for those ‘communications’ that do not meet 

Buckley’s definition of express advocacy.” Id. The Supreme Court flatly rejected 

this argument, finding that neither its prior precedents nor the First Amendment 

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

advocacy” for purposes of disclosure requirements. Id. at 194. 

The McConnell Court noted that in Buckley, the Court was construing a 

FECA disclosure requirement that applied to ads “‘for the purpose of . . .

influencing’ a federal election.” Id. at 191. The Buckley Court found this language 

vague and consequently construed the statute to reach only express advocacy. Id. 

McConnell explained, however, that Buckley’s holding was “specific to the 

statutory language” of FECA. Id. at 192-93. Consequently the Court refused to 

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

interpretation”—into “a first principle of constitutional law.” Id. at 190. The 

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

express advocacy [were] simply inapposite” with respect to BCRA’s “easily 

understood and objectively determinable” definition of “electioneering 

communication.” Id. at 194. The Court thus upheld BCRA’s disclosure 

provisions, finding that “the important state interests that prompted Buckley to 

uphold FECA’s disclosure requirements”—providing the electorate with 

information, deterring corruption, and enabling enforcement of the law—“apply in 

full to BCRA.” Id. at 196. 

The Institute attempts to downplay this holding by asserting that McConnell

did not consider when “speech that qualifies as an electioneering communication is 

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not unambiguously campaign related.” Appellant Br. 36. But the McConnell

Court did acknowledge that the electioneering communication definition 

potentially encompassed both express advocacy and “genuine issue ads,” noting 

that the “precise percentage” of electioneering communications that “had no 

electioneering purpose” was “a matter of dispute.” 540 U.S. at 206. Nevertheless, 

it upheld BCRA’s disclosure requirements as “to the entire range of 

‘electioneering communications.’” Id. at 196 (emphasis added). In so holding, the 

majority confirmed that the governmental interests that had led the Buckley Court 

to uphold FECA’s disclosure provisions also supported disclosure of electioneering 

communications, even though some percentage of “genuine issue ads” were 

covered by BCRA. 

B. Citizens United Sustained Disclosure Provisions as Applied to Ads 

That Were Not the Functional Equivalent of Express Advocacy.

Citizens United considered a challenge to the electioneering communication

disclosure provisions as applied to Citizens United’s film, Hillary: The Movie and 

three promotional ads for the movie. In making this challenge, the plaintiff relied 

principally on FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007) 

(“WRTL”), although WRTL addressed BCRA’s restrictions on corporate spending 

on electioneering communications, not its disclosure requirements for

electioneering communications. Id. at 457. In WRTL, the Court had concluded 

that BCRA’s prohibition on corporate funding of electioneering communications 

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could constitutionally apply only to speech that was “express advocacy or its 

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

federal office.” Id. at 456, 481. The plaintiff Citizens United, citing WRTL’s 

holding that BCRA’s expenditure restrictions could only reach “express advocacy 

and its functional equivalent,” sought “to import a similar distinction into BCRA’s 

disclosure requirements.” Citizens United, 558 U.S. at 368-69 (emphasis added). 

The Supreme Court “reject[ed] this contention,” id. at 369, explaining that the 

constitutional limitations it had established with respect to expenditure limits did 

not apply to disclosure requirements: 

[D]isclosure is a less restrictive alternative to more comprehensive 

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

requirement for independent expenditures even though it invalidated a 

provision that imposed a ceiling on those expenditures. In McConnell,

three Justices who would have found [BCRA’s ban on corporate 

funding of electioneering communications] to be unconstitutional 

nonetheless voted to uphold BCRA’s disclosure and disclaimer 

requirements. And the Court has upheld registration and disclosure 

requirements on lobbyists, even though Congress has no power to ban 

lobbying itself. For these reasons, we reject Citizens United’s 

contention that the disclosure requirements must be limited to speech 

that is the functional equivalent of express advocacy.

Id. (emphasis added) (internal citations omitted). The Court could not have made 

its conclusion any clearer: disclosure requirements may extend beyond express 

advocacy and its functional equivalent.

The Institute—in a futile attempt to escape Citizens United’s clear holding—

implies that this entire section of the decision was dicta. Appellant Br. 40-41 

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(citing Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804, 836 (7th Cir. 2014)). 

It contends that the Court had already concluded that the movie and its promotional 

ads were the equivalent of express advocacy, or in the Institute’s current parlance, 

“unambiguously campaign related.” Appellant Br. 40-43. 

But this is a mischaracterization. As the district court noted, although the 

Court determined that Citizens United’s movie was the functional equivalent of 

express advocacy, it made no similar finding with respect to the advertisements for 

the movie—and it was the ads that were the focus of the disclosure analysis. 558 

U.S. at 325, 367-71; J.A. 9-10. The Institute’s suggestion that the disclosure 

section of Citizens United is non-precedential—or somehow distinguishable from 

this case—is incorrect. The Court’s holding on the scope of disclosure laws was 

necessary to its judgment and is controlling here.

Further, the parties in Citizens United themselves agreed that the 

advertisements were not express advocacy, and the trial court likewise found that 

the ads “did not advocate Senator Clinton’s election or defeat.” Citizens United v. 

FEC, 530 F. Supp. 2d 274, 280 (D.D.C. 2008) (per curiam). Express advocacy 

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

“functional equivalent of express advocacy” requires that a communication be 

“susceptible of no reasonable interpretation other than as an appeal to vote for or 

against a specific candidate.” WRTL, 551 U.S. at 469-70. The Institute’s new 

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category of “unambiguously campaign related” speech appears to be coextensive 

with the “functional equivalent of express advocacy.” Appellant Br. 38. But even 

if these tests are distinct, none of them was conceivably satisfied by Citizens 

United’s promotional ad that stated, in its entirety: “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. Indeed, if that ad met the Institute’s self-devised test 

for “unambiguously campaign related” speech, then a fortiori the Institute’s 

proposed ad would as well.

The Institute also makes too much of Citizens United’s passing reference to 

the advertisements as containing “pejorative” references to then-Senator Clinton. 

Appellant Br. 40-41. The Court offered that characterization as part of its 

description of the promotional ads, not as an element of its constitutional analysis. 

558 U.S. at 368. There is nothing in Citizens United to suggest that a 

communication must contain a “pejorative statement” to be permissibly subject to 

disclosure. McConnell upheld “application of [BCRA’s] disclosure requirements 

to the entire range” of electioneering communications, without regard to their 

“pejorative” nature. 540 U.S. at 196 (emphasis added). Had the Court in Citizens 

United wished to overrule that McConnell holding and limit disclosure to ads 

containing “pejorative” references, it would have done so explicitly. Moreover, 

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

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about a candidate right before an election—applies equally to all communications 

that refer to a candidate, whether they are “pejorative” or not.

Furthermore, if the BCRA disclosure requirement were instead predicated 

upon a determination of whether a communication was or was not “unambiguously 

campaign related,” as the Institute demands, it would implicate the same vagueness 

concerns raised in Buckley, and would ignore the Supreme Court’s explicit 

approval of the “easily understood and objectively determinable” criteria of the

electioneering communication definition. McConnell, 540 U.S. at 194. Not even 

the Institute can articulate a test for when a communication is “unambiguously 

campaign related”—at least not without falling back on WRTL’s test for the 

“functional equivalent of express advocacy.” See, e.g., Appellant Br. 38 (defining 

“unambiguously campaign related” speech as a “category of speech which, while 

falling short of express advocacy, functions in the same way”). The Institute’s 

argument has been rejected by the Supreme Court’s clear holdings in Citizens 

United and McConnell, and should be rejected here as well. 

C. No Legal Authority Supports the Institute’s Position.

In an attempt to escape the weight of controlling Supreme Court authority, 

the Institute invokes a host of other decisions. Even if these decisions could 

override Supreme Court precedent—which they obviously cannot—they are not on 

point.

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

The Institute urges this Court to discount McConnell and Citizens United 

and to rely instead on Buckley—but not the Supreme Court’s opinion, but rather an 

unappealed portion of the D.C. Circuit’s 1975 opinion. Buckley v. Valeo, 519 F.2d 

821 (D.C. Cir. 1975). Appellant Br. 53-56. There, this Court found that a 

disclosure provision, FECA § 308, was unconstitutionally vague. 519 F.2d at 878. 

The Institute argues that the BCRA disclosure requirements here are likewise 

unconstitutional because the FECA provision “sought the same scope of 

government power that the Commission claims here.” Appellant Br. 55. The 

Institute is incorrect; the Buckley appellate decision is not relevant to this case.

As an initial matter, the appellate Buckley decision obviously predated the 

Supreme Court’s rulings in McConnell and Citizens United, and the latter two 

rulings would supersede anything in the former that might conflict with them. The 

Buckley appellate decision also considered a very different disclosure law, and 

unsurprisingly, given its vintage, did not consider the question central to this case: 

whether express advocacy and its functional equivalent (terms the Supreme Court 

had not yet even invented) mark the outer boundary of permissible disclosure 

requirements. Thus, instead of conflicting with McConnell or Citizens United, the 

1975 Buckley decision simply does not address the same issues. 

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The law at issue in Buckley was entirely different from the electioneering 

communication disclosure provisions, making its analysis inapplicable here. The 

provision reviewed by this Court, FECA § 308, required an organization to “file 

reports . . . as if [it] were a political committee,” 519 F.2d at 869-70, if the 

organization was responsible for the following: 

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

outcome of an election”; or (2) by “any material” “publishe(d) or 

broadcast() to the public” which “refer(s) to a candidate (by name, 

description, or other reference)” and which (a) “advocate(es) the 

election or defeat of such candidate,” or (b) “set(s) forth the 

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

official acts (in the case of a candidate who holds or has held Federal 

office),” or (c) is “otherwise designed to influence individuals to cast 

their votes for or against such candidate or to withhold their votes 

from such candidate.” 

Id. (alterations in original). 

Section 308 differs from the electioneering communication law here because 

it included the same vague language that resulted in the Supreme Court’s creation 

of the express advocacy test in Buckley. Section 308 applied to “any act directed 

to the public for the purpose of influencing the outcome of an election,” id. at 869, 

using terminology almost identical to the “for the purpose of . . . influencing” 

phrase that Supreme Court later found to raise constitutional vagueness concerns. 

Buckley, 424 U.S. at 79-80. This Court held that this language lacked the 

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

contrast, the Supreme Court has described the electioneering communication

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14

definition at issue here as “both easily understood and objectively determinable.” 

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

§ 30104(f)). 

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

“file reports with the [Federal Election] Commission as if such person were a

political committee.” Buckley, 519 F.2d at 870 (emphasis added). Then, as today, 

political committee status meant ongoing quarterly reporting, regardless of whether 

the organization engaged in any election-related activity, as well as an array of 

organizational and record-keeping requirements. See, e.g., Federal Election 

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

U.S.C. § 30104(a)-(b) (quarterly and other ongoing reports), § 30102(h) 

(governing use of bank accounts), § 30103 (statements of organization and 

termination requirements). The electioneering communication disclosure 

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

filed if and only if a group spends more than $10,000 on electioneering 

communications in a covered period. 52 U.S.C. § 30104(f). This requirement is

not comparable to section 308, and consequently the appellate decision in Buckley

does not bear upon its validity.

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

Cir. 2014)

The Institute also attempts to undermine the relevant Supreme Court 

precedents by invoking a Seventh Circuit case that characterized a section of 

Citizens United as “dicta.” See Appellant Br. 40-41. But Barland provides no 

more support for the Institute than this Court’s opinion in Buckley. 

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

determined that the ads for Hillary: The Movie were the functional equivalent of 

express advocacy. 751 F.3d at 836. Based upon this faulty premise, Barland said

that the Supreme Court’s rejection of the “contention that the disclosure 

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

advocacy” was “dicta.” Id. The Institute, however, fails to acknowledge that the 

Seventh Circuit also recognized that it was bound by that dicta, and that Citizens 

United definitively required the conclusion (as the Seventh Circuit itself had held 

previously) “that the ‘distinction between express advocacy and issue discussion 

does not apply in the disclosure context.’” 751 F.3d at 836 (quoting Ctr. for Indv’l 

Freedom v. Madigan, 697 F.3d 464, 484 (7th Cir. 2012)).

Barland adopted an express advocacy standard only with regard to a law that 

imposed ongoing reporting obligations, as well as organizational and 

recordkeeping requirements, on a “political committee.” 751 F.3d at 836-38, citing

GAB § 1.28(3)(b). At the same time, Barland recognized that in the “specific 

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context” of “the disclosure requirement for electioneering communications,” 

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

Barland is unequivocal on this point. It states plainly that “Citizens United

approved event-driven disclosure for federal electioneering communications” and 

that “[i]n that specific ... context”—exactly the same as the context here—“the 

Court declined to enforce Buckley’s express-advocacy limitation.” Id. Barland 

thus does not merely fail to support the Institute’s claim; it is fatal to that claim. 

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

conclusion that its discussion of express advocacy is dicta. The portion of the 

opinion that Barland cites discusses Citizen United’s movie, not the ads for the 

movie. See id. at 824 (citing Citizens United, 558 U.S. at 324-25). As noted 

above, the parties and the lower court in Citizens United agreed that the ads were 

neither express advocacy nor its functional equivalent, and nothing in the Supreme 

Court’s opinion remotely suggests any disagreement with this consensus.

Accordingly, every Circuit to have addressed the permissible scope of 

political disclosure has recognized that Citizens United found that disclosure is not 

limited to express advocacy, even the Seventh Circuit. See Madigan, 697 F.3d at 

484 (“Whatever the status of the express advocacy/issue discussion distinction may 

be in other areas of campaign finance law, Citizens United left no doubt that 

disclosure requirements need not hew to it to survive First Amendment scrutiny.”). 

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

Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 54-55 (1st Cir. 2011); Human Life 

of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010). This Court 

should follow the consensus of the other Circuits that Citizens United means what 

it says.

II. The Supreme Court Has Repeatedly Approved of Measures Requiring 

Disclosure in Connection with “Issue Advocacy.”

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

are constitutional without regard to whether they apply to express advocacy or 

issue advocacy are not anomalies. McConnell and Citizens United are fully 

consistent with longstanding Supreme Court precedent recognizing that the broad 

public interest in knowing the identity of those financing political advocacy 

extends far beyond express advocacy or its functional equivalent. 

A. Disclosure Laws Are Not Limited by an “Unambiguously 

Campaign Related” Test.

Central to the Institute’s appellate brief is the assertion of a new-found 

principle that disclosure laws can extend only to communications that are 

“unambiguously campaign related.” See, e.g., Appellant Br. 10, 17, 30-33, 36-37, 

38, 39-40. This assertion appears to be nothing more than an attempt to rephrase 

the Institute’s argument below—i.e., that disclosure laws cannot reach “pure issue 

advocacy”—because that argument is clearly foreclosed by McConnell and 

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Citizens United, as the district court correctly concluded. See J.A. 42 (“[I]n no 

uncertain terms, the Supreme Court rejected the attempt to limit BCRA’s 

disclosure requirements to express advocacy and its functional equivalent.’”). 

Regardless of whether one draws the line between express advocacy and issue 

advocacy at the “functional equivalent of express advocacy” or “unambiguously 

campaign related” communications, the Supreme Court has repeatedly affirmed 

that disclosure laws can apply on both sides of this line. 

In any event, the Institute’s “unambiguously campaign related” test for 

disclosure has no basis in the law. The phrase appeared in Buckley, but was merely 

incidental to the Supreme Court’s discussion of its narrowing construction of the 

term “expenditure” to encompass only express advocacy. 424 U.S. at 80.3 The 

phrase certainly was not adopted as an independent constitutional test, and has 

never been mentioned, much less applied, in any subsequent Supreme Court case. 

The Institute is simply attempting to replace the actual jurisprudential approach to 

 

3 Reviewing the context in which the phrase “unambiguously campaign 

related” appeared in Buckley illustrates its ancillary nature. To address “serious 

problems of vagueness,” the Buckley Court construed the term “expenditure” in 

FECA to reach only “funds used for communications that expressly advocate the 

election or defeat of a clearly identified candidate.” Buckley, 424 U.S. at 80. The 

Court then stated that “this reading is directed precisely to that spending that is 

unambiguously related to the campaign of a particular federal candidate.” Id. 

(emphasis added). It is clear that the only “test” created by the Buckley Court was 

the express advocacy standard, and the “unambiguously campaign related” 

language was not a separate test, but merely described the express advocacy test in 

this context. 

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the Court’s review of disclosure requirements—i.e. an approach that analyzes 

whether there exists a “‘relevant correlation’ or ‘substantial relation’ between the 

governmental interest and the information required to be disclosed”—with a test 

more to its liking. Id. at 64. This court should reject the Institute’s invented 

standard, and adhere to the established Supreme Court precedent on the scope of 

permissible disclosure.

B. The Institute’s Newly-Formulated “Unambiguously Campaign 

Related” Requirement Is Contradicted by Supreme Court 

Decisions Upholding Disclosure Laws in Non-Campaign Related 

Contexts.

Supreme Court decisions approving laws relating to lobbying and ballot 

measure advocacy confirm that the constitutionality of a disclosure requirement 

does not depend on whether the regulated speech is “unambiguously campaign 

related.” 

First, the Supreme Court has long approved of disclosure in the context of 

lobbying. Citizens United, 558 U.S. at 369 (citing United States v. Harriss, 347 

U.S. 612, 625 (1954)). The Institute completely fails to acknowledge that Citizens 

United cited Harriss for the proposition that disclosure laws could extend beyond 

express advocacy, foreclosing its argument that advocacy that is not 

“unambiguously campaign related” is sacrosanct. Id.

In Harriss, the Supreme Court considered the Federal Regulation of 

Lobbying Act, which required all persons “receiving any contributions or 

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expending any money for the purpose of influencing the passage or defeat of any 

legislation by Congress” to report information about their clients and their 

contributions and expenditures. 347 U.S. at 615 & n.1. After evaluating the Act’s 

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

justified by the state’s informational interests. The Court explained that “[p]resentday legislative complexities are such that individual members of Congress cannot 

be expected to explore the myriad pressures to which they are regularly subjected,” 

and noted approvingly that the Act did not “prohibit these pressures” but “merely 

provided for a modicum of information” about them. Id. at 625. The fact that the 

Act was unrelated to candidate campaigns and instead pertained only to issue 

speech was not constitutionally significant: the disclosure it required served the 

state’s informational interest and “maintain[ed] the integrity of a basic 

governmental process.” Id.

The Supreme Court has likewise expressed approval of statutes requiring 

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

lack a connection to candidates and thus do not constitute express advocacy or its 

functional equivalent. In First National Bank of Boston v. Bellotti, 435 U.S. 765 

(1978), the Court struck down limits on corporate expenditures to influence ballot 

measures, in part because the state’s interests could be achieved constitutionally 

through the less restrictive means of disclosure: “Identification of the source of 

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advertising may be required as a means of disclosure, so that the people will be 

able to evaluate the arguments to which they are being subjected.” Id. at 792 n.32. 

Citing Buckley and Harriss, the Court emphasized “the prophylactic effect of 

requiring that the source of communication be disclosed.” Id. 

The Court again recognized this state “informational interest” in Citizens 

Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981), where it considered 

a challenge to the City’s ordinance that limited contributions to committees formed 

to support or oppose ballot measures. Again, the Court struck down the 

contribution limit, basing its holding in part on the disclosure that the law required 

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

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

or opposes a given ballot measure since contributors must make their identities 

known under [a different section] of the ordinance, which requires publication of 

lists of contributors in advance of the voting.”).

These precedents have led multiple circuits to conclude that requiring 

disclosure of donors financing ballot measure issue advocacy is constitutional, just 

as is disclosure of donors financing candidate advocacy. See, e.g., Cal. Pro-Life 

Council v. Getman, 328 F.3d 1088, 1104 (9th Cir. 2003) (“The [Supreme] Court 

has repeatedly acknowledged the constitutionality of state laws requiring the 

disclosure of funds spent to pass or defeat ballot measures.”). In a challenge to 

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Florida’s ballot measure disclosure law, for example, the Eleventh Circuit strongly 

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

candidate elections,” emphasizing that this distinction was “not supported by 

precedent” and could not “compel a departure from Citizens United.” Worley v. 

Fla. Sec’y of State, 717 F.3d 1238, 1254 (11th Cir. 2013), cert. denied, 134 S. Ct. 

529 (2013); see also Madigan, 697 F.3d at 480.

These courts recognize what the Institute does not: that the informational 

interest in disclosure recognized by Buckley applies equally to the disclosure of 

ballot measure advocacy even though this latter activity is not “unambiguously 

related” to candidate campaigns. Given the weight of the case law, “the position 

that disclosure requirements cannot constitutionally reach issue advocacy is 

unsupportable.” Human Life, 624 F.3d at 1016.

III. The Institute’s As-Applied Challenge to the BCRA Disclosure 

Provisions Fails.

A. The Institute’s “As-Applied” Challenge Is Indistinguishable from 

the Claims Brought in McConnell and Citizens United.

Although the Institute bills its case as an “as applied” challenge, it rests on 

the same theory as the facial challenge to the electioneering communication

provisions that was rejected in McConnell. The Institute highlights little about its 

proposed ad that would serve as grounds for an as-applied exemption, other than 

the claim that its ad is unambiguously campaign related. But the petitioners in 

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McConnell likewise challenged the electioneering communication disclosure 

provisions because they extended beyond express advocacy, and their facial 

challenge was rejected. 540 U.S. at 190, 196. “A plaintiff cannot successfully 

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

and legal arguments the Supreme Court expressly considered when rejecting a 

facial challenge to that provision.” Republican Nat’l Comm. v. FEC, 698 F. Supp. 

2d 150, 157 (D.D.C. 2010) (three-judge court), aff’d, 130 S. Ct. 3544 (2010).

Even if viewed as an as-applied challenge, the Institute’s claim must fail 

given Citizens United’s dismissal of an as-applied challenge that rested on exactly 

the same theory as here: that an ad should be exempted from disclosure on an asapplied basis because it did not constitute express advocacy or its functional 

equivalent. The Supreme Court adamantly “reject[ed] that contention.” Citizens 

United, 558 U.S. at 369. It recognized only one constitutionally mandated asapplied exemption from a facially valid political disclosure law: where there is “a 

reasonable probability that [a] group’s members would face threats, harassment, or 

reprisals if their names were disclosed.” Id. at 370; see also Buckley, 424 U.S. at 

74. Here, the Institute has expressly disclaimed any concerns about harassment. 

See J.A. 34-35. It has thus failed to claim the one as-applied exemption from a 

facially valid campaign finance disclosure law recognized by the Supreme Court.

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B. The Institute Fails to Distinguish the Circumstances of its Case 

from Those of Citizens United and McConnell. 

1. The Institute’s Status as a Section 501(c)(3) Organization Is 

Immaterial to the Constitutionality of a Disclosure 

Requirement.

The Institute highlights that it is a group organized under Section 501(c)(3) 

of the Internal Revenue Code, see 26 U.S.C. § 501(c)(3), whereas the plaintiff in 

Citizens United was a Section 501(c)(4) organization, and insinuates that the 

distinction in tax status somehow affects the First Amendment analysis. Appellant

Br. 43-47. But the Supreme Court has never suggested that the constitutionality of 

a disclosure law turns on the tax status of the groups subject to the law; to the 

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

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

No exemption from disclosure for 501(c)(3) organizations is constitutionally 

required. In McConnell, the Supreme Court sustained the electioneering 

communication disclosure provisions even though they contained no exemption for 

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

created an exemption for 501(c)(3) groups by regulation, the exemption was

invalidated. Shays v. FEC, 337 F. Supp. 2d 28, 124-28 (D.D.C. 2004), aff’d, 414 

F.3d 76 (D.C. Cir. 2005). The district court found this 501(c)(3) exemption to be 

arbitrary and capricious because “the [FEC] did not fully address whether the tax 

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

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

imposed such an exemption as a matter of constitutional law. 

The Institute offers no substantive reason why 501(c)(3) organizations are 

situated differently than 501(c)(4) organizations for purposes of disclosure. It 

states that “§ 501(c)(3) organizations like the Institute enjoy greater donor 

protection,” citing 26 U.S.C. § 6104(c)(3) and § 6104(d)(3)(A) for this proposition. 

Appellant Br. 44. The former section concerns IRS cooperation with state 

enforcement efforts concerning “the solicitation or administration of the charitable 

funds or charitable assets,” 26 U.S.C. § 6104(c)(3), and has nothing to do with 

public disclosure. With respect to the latter section, the Institute is simply wrong. 

Section 6104(d)(3)(A) provides that all tax-exempt groups organized under 501(c) 

except private foundations have no obligation under federal tax law to disclose 

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

an organization which is not a private foundation (within the meaning of section 

509 (a)) or a political organization exempt from taxation under section 527, [the 

law] shall not require the disclosure of the name or address of any contributor to 

the organization . . . .”). This provision encompasses both 501(c)(3) and 501(c)(4) 

organizations. Thus, the tax code provision upon which the Institute relies itself 

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26

fails to make the distinction between 501(c)(3) and 501(c)(4) groups that the 

Institute advances. 

The Institute also argues that 501(c)(3) organizations should be exempted 

from disclosure because they are “barred, by federal law, from carrying out any 

candidate-centered electioneering.” Appellant Br. 43-44. To be sure, 501(c)(3) 

groups are prohibited from “intervening” in a “political campaign” under 26 

U.S.C. § 501(c)(3). But the IRS’s definition of campaign intervention, see, e.g., 

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

the criteria for a tax status under Section 501(c)(3), not whether the group should 

be subject to disclosure under federal election law. The IRS’ definition is not—

and was not intended to be—coterminous with the activity regulated under FECA. 

See, e.g., Shays, 337 F. Supp. 2d at 124-28 (criticizing FEC for deferring to the 

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

on political activities to encompass activities that are . . . considered [to be political 

activities]” under federal campaign finance law). Moreover, that the Tax Code 

itself imposes more stringent limits on political activity by 501(c)(3) groups than 

by 501(c)(4) groups suggests, if anything, that section 501(c)(3) groups are entitled 

to less constitutional protection for their political activities.

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2. The Supreme Court Has Made Clear that Donor Disclosure 

Need Not Be Limited to Donors Who “Earmark” Their 

Funds for Election Ads. 

In 2007, the FEC promulgated a regulation limiting donor disclosure under 

the federal electioneering communication disclosure law to only “those persons 

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

furthering electioneering communications made by that corporation or labor 

organization.” Explanation and Justification for Final Rules on Electioneering 

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

(emphasis added); 11 C.F.R. § 104.20(c)(9). This regulation narrowed the donor 

disclosure required by the statute, which on its face requires groups spending over 

$10,000 on electioneering communications to either establish a segregated bank 

account and disclose all contributors of $1,000 or more to that account, see 52 

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

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

regulation was challenged by Representative Chris Van Hollen (D-MD) under the 

Administrative Procedures Act and was recently vacated. Van Hollen v. FEC, No. 

11-0766, 2014 WL 6657240 (D.D.C. Nov. 25, 2014).

4

The Institute now claims this “intervening” district court decision and 

“change in the law” serves to distinguish Citizens United from its case and 

 

4 Attorneys for amici Campaign Legal Center, Democracy 21 and Public 

Citizen are part of the legal team representing Van Hollen in the litigation. 

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28

“necessitates new, as applied review by a three-judge court.” Appellant Br. 48. 

But Van Hollen does no such thing.

First, the Institute’s claims are premature, to say the least. The district court 

decision in Van Hollen is under appeal, see Notice of Appeal, Van Hollen v. FEC

(No. 15-5017). By arguing that the recent Van Hollen decision necessitates the 

convening of a three-judge court, the Institute suggests that the continued existence 

of 11 C.F.R. § 104.20(c)(9) is essential to the constitutionality of the electioneering 

communication disclosure requirement. Even if this Court were to agree and rest 

its holding on this rationale, its decision would remain in limbo until the Van 

Hollen litigation was fully resolved.

In any event, the existence of the earmarking rule is in no way dispositive of 

the Institute’s claims. As the Institute concedes, it brought the instant case prior to 

the recent Van Hollen decision and while the limiting regulation was still in effect, 

Appellant Br. 47-48, and the Institute would presumably continue litigating this 

challenge regardless of the outcome of Van Hollen. The Institute’s challenge turns 

on the nature of its proposed electioneering communication—i.e. whether the ad is 

“unambiguously campaign related”—not the scope of donor disclosure. The 

Institution’s position that advertisements that are not the functional equivalent of 

express advocacy cannot be subject to disclosure, if accepted (despite the Supreme 

Court’s contrary holdings) would mean that the electioneering disclosure law was 

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29

unconstitutional regardless of whether the Institute had to disclose one donor or 

100 donors. The earmarking rule is beside the point.

Most importantly, however, even if the earmarking regulation is ultimately 

invalidated and the Institute is required to report all of its significant donors,

5

courts have repeatedly held such comprehensive disclosure to be constitutional.

In McConnell, the Supreme Court upheld the statutory electioneering 

communication disclosure requirement on its face although it had not yet been 

modified by the FEC’s 2007 earmarking rule. Evidently, the Court was not at all 

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

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

added). The Institute is thus simply incorrect in arguing that the Supreme Court 

has cast doubt on “generalized donor disclosure.” Appellant Br. 52. 

The 2007 FEC rule was in effect when Citizens United was decided, but the 

“earmarking” limitation played no role in the Supreme Court’s constitutional 

analysis and was never mentioned in the opinion. This Court has accordingly 

rejected the contention that “the Supreme Court’s holding was limited by” the 

earmarking regulation. Van Hollen v. FEC, No. 12-5117, 2012 WL 1758569, *3

 

5 Contrary to the Institute’s claim that the law would require disclosure of “all

significant donors,” Appellant Br. 49 (emphasis in the original), the statute 

provides the Institute with the option to disclose only the donors to a separate 

account from which it makes disbursements for electioneering communications. 

52 U.S.C. § 30104(f)(2)(E).

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30

(D.C. Cir. May 14, 2012) (unpublished). Thus, even if the Institute was not 

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

required under the federal statute itself—is constitutional.

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

disclose all of their donors, even though a given contribution may not have been 

earmarked for the specific form of advocacy covered by a challenged disclosure 

law. See, e.g., Madigan, 697 F.3d at 472; Family PAC, 685 F.3d at 803. Indeed, 

the Fourth Circuit recently reversed a district court precisely because it imposed an 

“earmarking” limitation to “cure” the alleged unconstitutionality of a disclosure 

requirement. Ctr. for Indv’l Freedom v. Tennant, 706 F.3d 270, 291-92 (4th Cir. 

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

that groups that make electioneering communications need not disclose who has 

contributed to pay for those communications unless the donor is dumb enough 

specifically to direct the organization to use the money for a particular 

communication.” Madigan, 697 F.3d at 490 n.27 (citations and internal quotation 

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

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

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31

CONCLUSION

For the foregoing reasons, this Court should affirm the district court’s 

decision.

Dated this 15th day of May, 2015.

Respectfully submitted,

Fred Wertheimer

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, D.C. 20036 

Tel.: (202) 355-9600

Donald J. Simon

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, D.C. 20005

Tel.: (202) 682-0240

Scott L. Nelson

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, D.C. 20009

Tel.: (202) 588-1000

Counsel for Amici Curiae

/s/ J. Gerald Hebert

J. Gerald Hebert

 ghebert@campaignlegalcenter.org

Tara Malloy

Lawrence M. Noble

Megan McAllen

THE CAMPAIGN LEGAL CENTER

1411 K Street, NW, Suite 1400

Washington, D.C. 20005

Tel.: (202) 736-2200

Charles Fried

1545 Massachusetts Avenue

Cambridge, MA 02138

Counsel for Amici Curiae

*Counsel of Record

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i

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,836 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) 

and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has 

been prepared in a proportionally spaced typeface using Microsoft Office Word in 

Times New Roman 14 point font.

/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

1411 K Street, NW, Suite 1400

Washington, D.C. 20005

Tel.: (202) 736-2200

Dated: May 15, 2015

USCA Case #14-5249 Document #1552782 Filed: 05/15/2015 Page 41 of 42
ii

CERTIFICATE OF SERVICE

I certify that on March 15, 2015, I electronically filed a copy of the 

foregoing Brief Amici Curiae with the Clerk of the United States Court of Appeals 

for the D.C. Circuit using the CM/ECF system, which will send notification of this 

filing to counsel of record.

I further certify that I also will cause the requisite number of paper copies of

the brief to be filed with the Clerk.

/s/ J. Gerald Hebert

J. Gerald Hebert

THE CAMPAIGN LEGAL CENTER

1411 K Street, NW, Suite 1400

Washington, D.C. 20005

Tel.: (202) 736-2200

Dated: May 15, 2015

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