UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

INDEPENDENCE INSTITUTE, 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

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Case No. 1:14-CV-01500-CKK-PAM-APM 

BRIEF AMICI CURIAE OF CAMPAIGN LEGAL CENTER, DEMOCRACY 21 

AND PUBLIC CITIZEN, INC. IN OPPOSITION TO PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT AND IN SUPPORT OF 

DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 

Donald J. Simon, DC Bar No. 256388 

SONOSKY, CHAMBERS, SACHSE 

ENDRESON & PERRY, LLP 

1425 K Street, NW, Suite 600 

Washington, D.C. 20005 

Tel.: (202) 682-0240 

Fred Wertheimer, DC Bar No. 154211 

DEMOCRACY 21 

2000 Massachusetts Avenue, NW 

Washington, D.C. 20036 

Tel.: (202) 355-9600 

J. Gerald Hebert, DC Bar No. 447676 

Tara Malloy, DC Bar No. 988280 

Megan P. McAllen, DC Bar No. 1020509 

THE CAMPAIGN LEGAL CENTER

1411 K Street, NW, Suite 1400 

Washington, D.C. 20005 

Tel.: (202) 736-2200 

Scott L. Nelson, DC Bar No. 413548 

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW 

Washington, D.C. 20009 

Tel.: (202) 588-1000

Counsel for Amici Curiae 

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TABLE OF CONTENTS 

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

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 ...............................6 

C. No Legal Authority Supports the Institute’s Position ......................................10 

II. The Supreme Court Has Repeatedly Approved of Measures Requiring 

Disclosure in Connection with “Issue Advocacy” ...................................................13 

A. Disclosure Laws Are Not Limited by an “Unambiguously Campaign 

Related” Test. ...................................................................................................13 

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

Requirement Is Contradicted by Supreme Court Decisions Upholding 

Disclosure Laws in Non-Campaign Related Contexts .....................................14 

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

Fails .............................................................................................................................17

A. The Institute’s “As-Applied” Argument with Respect to “Unambiguously 

Campaign Related” Communications Is Indistinguishable from the Claims 

Brought in McConnell and Citizens United .....................................................17 

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

the Constitutionality of a Disclosure Requirement ..........................................18

CONCLUSION ............................................................................................................................22

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

 

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TABLE OF AUTHORITIES 

Cases: 

Buckley v. Valeo, 424 U.S. 1 (1976) ..............................................................................5, 11, 14, 18 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ....................................................................10, 11 

California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003) ...............................16 

Ctr. for Individual Freedom, Inc. v. Madigan, 697 F.3d 464 (7th Cir. 2012) .....................4, 12, 17 

Ctr. for Individual Freedom, Inc. v. Tennant, 706 F.3d 270 (4th Cir. 2013).............................4, 19 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) ......................................16 

Citizens United v. FEC, 558 U.S. 310 (2010) ....................................................1, 3, 5, 8, 15, 18, 19 

Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) ..........................................................8

Delaware Strong Families (DSF) v. Attorney Gen. of Delaware, 793 F.3d 304 (3d Cir. 

2015), cert. denied sub nom DSF v. Denn, 136 S. Ct. 2376 (2016) ....................................4, 12, 19 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) .........................................................6, 8 

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ....................................................16 

Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) .............................4, 12, 17 

Indep. Inst. v. FEC, 70 F. Supp. 3d 502 (2014), rev’d and vacated, 816 F.3d 113 (D.C. 

Cir. 2016) .............................................................................................................2, 3, 4, 5, 7, 13, 18 

Indep. Inst. v. Gessler, 71 F. Supp. 3d 1194 (D. Colo. 2014) ........................................................19 

Indep. Inst. v. Williams, 812 F.3d 787 (10th Cir. 2016) ...................................... 4, 9, 10, 12-13, 19 

McConnell v. FEC, 540 U.S. 93 (2003) .............................................1, 5, 6, 8, 9, 11, 12, 17, 19, 21

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) ...............................................4, 12 

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

561 U.S. 1040 (2010) ....................................................................................................................17 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005) ...19, 20, 21 

Shapiro v. McManus, 136 S. Ct. 450 (2015) ...................................................................................2 

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

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Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118 (2d Cir. 2014), cert. denied, 

135 S. Ct. 949 (2015) .................................................................................................................4, 12

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) ........................................12

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

(2013) .............................................................................................................................................17 

Federal Statutes: 

Federal Election Campaign Act Amendments of 1974, Pub. L. 93-443, 88 Stat. 1263 ................11

26 U.S.C. § 501(c)(3) ...........................................................................................................3, 18, 21 

26 U.S.C. § 6104(c)(3) ...................................................................................................................20 

26 U.S.C. § 6104(d)(3)(A) .............................................................................................................20 

28 U.S.C. § 2284 ..............................................................................................................................2 

52 U.S.C. § 30102(h) .....................................................................................................................11 

52 U.S.C. § 30103 ..........................................................................................................................11 

52 U.S.C. § 30104(a) .....................................................................................................................11

52 U.S.C. § 30104(b) .....................................................................................................................11

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

52 U.S.C. § 30110 note ....................................................................................................................2 

Federal Regulations and Administrative Materials:

Rev. Rul. 2007-41, 2007-1 C.B. 1421 .....................................................................................21, 22

Miscellaneous Resources: 

Mem. Supp. Pl.’s Mot. for Summ. J., Citizens United v. FEC, 530 F. Supp. 2d 274 

(D.D.C. 2008) (No. 07-2240).........................................................................................................18

Reply Br. for Appellant, Citizens United v. FEC, 558 U.S. 310 (2010) (No. 08-205) ..................18 

M. Alex Johnson, Pulpit politics: Pastors endorse candidates, thumbing noses at the IRS, 

NBC News (Nov. 4, 2012), http://usnews.nbcnews.com/_news/2012/11/04/14703656-

pulpit-politics-pastors-endorse-candidates-thumbing-noses-at-the-irs .................................... 21-22 

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Claudia Vargas, Turned down by the IRS, Philly’s DNC host committee goes for Plan B, 

The Philadelphia Inquirer, July 17, 2016, http://articles.philly.com/2016-07-

17/news/74517432_1_tax-exemption-committee-irs ....................................................................22 

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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 have participated in this case both before the U.S. District Court for the District of 

Columbia and in the D.C. Circuit Court of Appeals. Amici thus have substantial expertise in the 

legal issues raised in this case, and a demonstrated interest in the challenged “electioneering 

communications” disclosure provisions of the Bipartisan Campaign Reform Act (“BCRA”), 52 

U.S.C. § 30104(f). 

SUMMARY OF ARGUMENT

In 2014, the Institute asked the district court in this case to invalidate BCRA’s disclosure 

provisions as applied to an “electioneering communication” (“EC”) referencing U.S. Senators 

Mark Udall and Michael Bennet that it wished to broadcast on radio shortly before the 2014 

general election. The Institute contended that applying these disclosure provisions to any 

communications that constituted “pure” or “genuine” issue advocacy was unconstitutional (e.g., 

Br. Supp. Mot. Prelim. Inj. 6, 14 (Sept. 4, 2014) (Dkt. 5)), even though Citizens United had 

rejected this exact “contention.” 558 U.S. at 369. Citing Citizens United, the single-judge district 

court found that the Institute’s “claims are foreclosed by clear United States Supreme Court 

                                                            

1

 All parties have consented to amici’s participation in this case. Pursuant to LCvR 7(o)(5) 

and Federal Rule of Appellate Procedure 29(c)(5), no counsel for a party authored this brief in 

whole or in part, and no counsel or party made a monetary contribution intended to fund the 

preparation or submission of the brief. No person or entity, other than amici or their counsel, 

made a monetary contribution to the preparation or submission of this brief. 

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precedent,” and accordingly denied its motion for a three-judge court under BCRA’s special 

review provision, see 52 U.S.C. § 30110 note, and dismissed the action. Indep. Inst. v. FEC, 70 

F. Supp. 3d 502, 503 (D.D.C. 2014), rev’d and vacated, 816 F.3d 113 (D.C. Cir. 2016). 

Nothing that would bear on the substantive merits of this case has changed since Judge 

Kollar-Kotelly issued her ruling. Although that decision was vacated 2-1 by a panel of this 

circuit, the Court of Appeals ruled only with respect to the denial of plaintiff’s motion to 

convene a three-judge court. The panel majority premised its decision upon the U.S. Supreme 

Court’s intervening decision in Shapiro v. McManus, 136 S. Ct. 450, 455 (2015), which lowered 

the bar for the grant of a three-judge court under 28 U.S.C. § 2284. Applying this new precedent, 

the Court of Appeals held that the Institute was entitled to a three-judge court because one of its 

arguments was not “‘essentially fictitious, wholly insubstantial, obviously frivolous, and 

obviously without merit.’” 816 F.3d at 117 (citing Shapiro, 136 S. Ct. at 456). Specifically, the 

opinion noted that although the Supreme Court had twice upheld the challenged law, it had not 

addressed the narrower argument that “a speaker’s tax status or the nature of the nonprofit 

organization affects the constitutional analysis of BCRA’s disclosure requirement.” Id. at 116-

17. The majority cautioned, however, that its ruling should not be understood “to suggest that 

Independence Institute’s argument is a winner” or that it had reached the merits of the Institute’s 

claims. Id. at 117. 

Indeed, this case is not “a winner,” and the Institute’s merits claims have not improved 

with time. The crux of the Institute’s argument throughout this litigation has been that its 

proposed ad does not constitute express advocacy or its functional equivalent, and disclosure 

laws must be limited to these two forms of communications. But as the single-judge district court 

already recognized, McConnell and Citizens United specifically considered—and unambiguously 

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rejected—this precise argument. 70 F. Supp. 3d at 506 (“[I]n no uncertain terms, the Supreme 

Court rejected the attempt to limit BCRA’s disclosure requirements to express advocacy and its 

functional equivalent.”). 

In its latest submission, the Institute attempts to refresh this familiar and thoroughly 

discredited argument with “new” terminology, declaring that the test now for a disclosure law is 

whether it regulates only “unambiguously campaign-related” communications. Institute’s Mot. 

for Summ. J. & Supp. Mem. 13-17 (June 17, 2015) (Dkt. 36) (“SJ Br.”). Thus, instead of 

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

advocacy,” the Institute now demands an exception because its ad is allegedly not 

“unambiguously campaign-related.” This is a semantic distinction without a substantive 

difference. As the Institute conceded in its submission on appeal, these “tests” are virtually 

synonymous. Pl.-Appellant’s Opening Br. 38 (D.C. Cir. Apr. 8, 2015) (No. 14-5249) (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. 

Nor does the Institute’s attempt to carve out an as-applied exception from the BCRA 

disclosure law for Section 501(c)(3) groups fare any better. See 26 U.S.C. § 501(c)(3). Although 

the Supreme Court may not have specifically addressed this particular as-applied argument, 816 

F.3d at 116-17, it has never suggested that the constitutionality of a political disclosure law turns 

on the tax status of the entities subject to the law. On the contrary, the Supreme Court has 

criticized campaign finance laws that discriminate “based on the speaker’s identity,” Citizens 

United, 558 U.S. at 350, leading some circuits to question whether an exception to a campaign 

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finance law based on tax status is even constitutionally permissible, much less mandated. Ctr. for 

Individual Freedom, Inc. v. Tennant, 706 F.3d 270, 289 (4th Cir. 2013). 

Indeed, if anything has changed since the Institute filed this case, it is that yet more 

circuits have rejected the Institute’s arguments in analogous cases. The Tenth Circuit, in fact, 

rejected virtually the same arguments from the same plaintiff, holding that Citizens United

foreclosed the Institute’s challenge to Colorado’s EC disclosure law and affirming the lower 

court’s rejection of the Institute’s as-applied challenge on the basis of its Section 501(c)(3) tax 

status. Indep. Inst. v. Williams, 812 F.3d 787 (10th Cir. 2016). Similarly, in Delaware Strong 

Families (DSF) v. Attorney Gen. of Delaware, 793 F.3d 304 (3d Cir. 2015), cert. denied sub nom

DSF v. Denn, 136 S. Ct. 2376 (2016), the Third Circuit turned back a challenge to Delaware’s 

EC disclosure law and also rejected an attempt by the plaintiff to challenge the state law’s 

coverage of 501(c)(3) groups. Id. at 308 (finding no “compelling reason to defer to the § 

501(c)(3) scheme in determining which communications require disclosure under the Act”). 

These two courts of appeals join the four other circuits that, as already discussed here (see 70 F. 

Supp. 3d at 507-509), each have rejected “the position that disclosure requirements cannot 

constitutionally reach issue advocacy.” Human Life of Washington, Inc. v. Brumsickle, 624 F.3d 

990, 1016 (9th Cir. 2010); see also Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 

132 (2d Cir. 2014), cert. denied, 135 S. Ct. 949 (2015); Ctr. for Individual Freedom, Inc. v. 

Madigan, 697 F.3d 464, 484 (7th Cir. 2012); Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 

54–55 (1st Cir. 2011). 

In short, the Institute’s core contention is that all of these courts erred, because the eight 

members of the Supreme Court who upheld BCRA’s disclosure provisions in McConnell and 

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

relitigate controlling Supreme Court precedent. 

ARGUMENT 

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

Foreclosed by Supreme Court Precedent. 

 As already recognized repeatedly in this case, the Supreme Court has twice considered—

and twice upheld—the federal EC 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 Court rejected attempts to 

limit the BCRA disclosure law to express advocacy or its functional equivalent. Judge KollarKotelly correctly rejected the Institute’s attempt to impose exactly this limit on the law, 70 F. 

Supp. 3d at 507-08, and the Court of Appeals did nothing to disturb her analysis, 816 F.3d at 

117. This Court should follow suit. 

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 the Court in Buckley 

v. Valeo, 424 U.S. 1 (1976), “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 ECs “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 “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, it was construing a disclosure requirement in 

the Federal Election Campaign Act (FECA) that applied to ads “‘for the purpose of . . . 

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

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therefore construed the statute to reach only express advocacy, but McConnell explained 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 considered 

the BCRA disclosure law only in connection to ads that were “express advocacy or something 

very like it.” SJ Br. 29. But the McConnell Court acknowledged that the EC definition 

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

percentage” of ECs 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 for ECs, 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 EC disclosure provisions as applied to 

Citizens United’s film, Hillary: The Movie, and three promotional ads for the movie. In making 

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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 for 

ECs—not its disclosure requirements. Id. at 457. In WRTL, the Court had concluded that 

BCRA’s prohibition on corporate funding of electioneering communications could 

constitutionally apply only to speech that was “express advocacy or its functional equivalent,” 

and not to “‘issue advocacy[]’ that mentions a candidate for federal office.” Id. at 456, 481. 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.” 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 ECs] 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. 

In a futile attempt to escape Citizens United’s clear holding, the Institute implies that this 

entire section of the decision was dicta. SJ Br. 30-36. It contends that the Court had already 

concluded that the movie and its promotional ads “were pejorative and the functional equivalent 

of express advocacy.” SJ Br. 34. 

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That contention is incorrect. As Judge Kollar-Kotelly noted, 70 F. Supp. 3d at 508, 

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. 

Contrary to the Institute’s claim that the ads were simply “carried along in the decision’s 

slipstream” (SJ Br. 30), they were in fact the focus of the Court’s disclosure analysis. 558 U.S. at 

325, 367-71. The Institute’s suggestion that the disclosure section of Citizens United is nonprecedential—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. 

Furthermore, the parties in Citizens United agreed that the advertisements were not 

express advocacy, and the three-judge district court likewise found that the ads “did not advocate 

Senator Clinton’s election or defeat.” Citizens United v. FEC, 530 F. Supp. 2d 274, 280 (D.D.C. 

2008) (per curiam). Express advocacy requires the use of certain “magic words.” McConnell, 

540 U.S. at 191. 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 category of “unambiguously 

campaign-related” speech appears to be coextensive with the “functional equivalent of express 

advocacy.” SJ Br. 24. 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 here 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. SJ Br. 31, 32, 33, 

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34, 36. 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 its McConnell 

holding and limit disclosure to ads containing “pejorative” references, it would have done so 

explicitly.2

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

speaking 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 requirements 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 EC definition’s “easily understood 

and objectively determinable” criteria. McConnell, 540 U.S. at 194. The Institute does not even 

attempt to articulate a test for when a communication is “unambiguously campaign related”—

although in prior submissions, it linked this new standard to WRTL’s test for the “functional 

equivalent of express advocacy.” See, e.g., Pl.-Appellant’s Opening Br. 38 (D.C. Cir. Apr. 8, 

                                                            

2

 Plaintiff has tried this gambit before. In its parallel challenge to Colorado’s EC disclosure 

law, the Institute unsuccessfully argued that in Citizens United, the Court found that both the 

movie and the ads were “the functional equivalent of express advocacy.” The Tenth Circuit saw 

“little support” for this claim, noting that although the movie was deemed express advocacy, the 

Court “nowhere suggested the same about the ads.” 812 F.3d 787, 795 n.8; see also id. (“[T]he 

discussion to which the Institute refers is limited to whether a provision of BCRA prohibiting the 

use of corporate and union general treasury funds to fund [ECs] could apply to the movie 

itself.”). 

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2015). As was the case in its Tenth Circuit challenge, “the Institute has offered no principled 

mechanism for distinguishing between campaign-related issue speech and speech that is not 

campaign-related.” 812 F.3d at 796 (noting the “difficulty of reliably distinguishing between 

campaign-related and non-campaign-related speech” and rebuffing the Institute’s test as “little 

more than [a] restate[ment]” of the “categorical distinction” rejected in Citizens United).3

 

The Institute’s argument has been rejected time and time again by the Supreme Court, 

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 handful of appellate decisions, but ignores that six circuits have interpreted Citizens 

United as precluding exactly the type of challenge to a disclosure law it advances here. 

The Institute urges this Court to discount McConnell and Citizens United in favor of the 

“most directly relevant” precedent, Buckley—not the Supreme Court’s opinion in that case, but 

rather an unappealed portion of the D.C. Circuit’s 1975 opinion that invalidated a disclosure 

provision of the original FECA. SJ Br. 28 n.18 (citing Buckley v. Valeo, 519 F.2d 821, 878 (D.C. 

Cir. 1975)). 

But the appellate Buckley decision obviously predated the Supreme Court’s decisions in 

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

former that might conflict with them. Unsurprisingly, given its vintage, the D.C. Circuit’s 

                                                            

3

 However the Institute conceives of the distinction, it is far from clear its ad falls on the 

non-campaign-related side of the line. There is nothing beyond the Institute’s own conclusory 

statements to suggest its particular ad is indeed “genuine issue advocacy,” given that it will refer 

to a current candidate by name and be distributed to the relevant electorate shortly before 

Election Day. These kinds of content and targeting choices are not accidental—and regardless, 

there is no reason to replace a clear statutory test that promotes transparency during the run-up to 

elections with the unprincipled line-drawing the Institute seeks to compel. Cf. Indep. Inst. v. 

Williams, 812 F.3d at 796. 

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Buckley decision did not consider the question central to this case: whether express advocacy and 

its functional equivalent (terms the Supreme Court had yet to coin) mark the outer boundary of 

permissible disclosure requirements. Thus, even if the Buckley circuit court decision were the 

governing precedent today, it is plainly not “relevant” because it does not address this question. 

Furthermore, the law reviewed in this Buckley decision, FECA § 308, was entirely 

different from the EC disclosure provisions at issue here. First, Section 308 required an 

organization to file reports . . . as if [it] were a political committee.” 519 F.2d at 869-70. 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 EC disclosure requirement here, by contrast, consists of an eventdriven, one-time report that must be filed if and only if a group spends more than $10,000 on 

ECs in a covered period. 52 U.S.C. § 30104(f). 

Second, Section 308 differs from the BCRA provisions 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 required disclosure in connection 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. The Supreme Court, 

however, has described the EC definition at issue here as “both easily understood and objectively 

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

§ 30104(f)). The D.C. Circuit’s 1975 Buckley opinion is simply inapplicable here. 

In contrast to this 40-year-old case, every circuit to address the permissible scope of 

political disclosure in the recent past has recognized that Citizens United found that disclosure 

laws can extend beyond express advocacy. 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.”).4 See also Vermont Right to Life, 758 F.3d at 132 (“In Citizens United, 

the Supreme Court expressly rejected the ‘contention that the disclosure requirements must be 

limited to speech that is the functional equivalent of express advocacy,’ because disclosure is a 

less restrictive strategy for deterring corruption and informing the electorate”); Nat’l Org. for 

Marriage, 649 F.3d at 54-55 (holding that Citizens United made clear that “the distinction 

between issue discussion and express advocacy has no place in First Amendment review” of 

“disclosure-oriented laws”); Human Life, 624 F.3d at 1016. 

The Third and Tenth Circuits recently joined this consensus. In DSF, the Third Circuit 

rejected a challenge to Delaware’s EC law as applied to a “neutral” voter guide, noting that 

“[t]he Supreme Court has consistently held 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.’” 793 F.3d at 308 (quoting McConnell, 540 U.S. at 193). The Tenth Circuit 

addressed a virtually identical challenge, brought by the Institute itself, to Colorado’s EC 

disclosure law as applied to another ad it claimed was “genuine issue advocacy.” 812 F.3d at 

                                                            

4

     Cf. Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804, 836-37 (7th Cir. 2014) 

(distinguishing Citizens United in reviewing state law imposing “comprehensive, continuous 

reporting regime” on political committees).

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792. There, as here, the Institute “contend[ed] that the First Amendment right to free association 

categorically shields proponents of speech that is ‘unambiguously not campaign-related’ from 

disclosure.” Id. But the Tenth Circuit found that the “logic of Citizens United is that 

advertisements that mention a candidate shortly before an election are deemed sufficiently 

campaign-related to implicate the government’s interests in disclosure.” Id. at 796. It continued 

to note that “the Court in Citizens United was nearly unanimous in applying BCRA’s disclosure 

requirements both to Citizens United’s express advocacy and to ads that did not take a position 

on a candidacy.” Id. 

This Court should follow the consensus of the other circuits that Citizens United means 

what it says: the public’s interest in knowing the identities of those “spending shortly before 

elections” does not stop short at “express advocacy” or its functional equivalent. 

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

Connection with “Issue Advocacy.” 

The Supreme Court’s decisions holding that BCRA’s 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 latest brief is the assertion that disclosure laws can extend only 

to communications that are “unambiguously campaign related.” See, e.g., SJ Br. 13-17. This 

claim appears to be nothing more than an attempt to repackage the Institute’s earlier argument—

i.e., that disclosure laws cannot reach “pure issue advocacy”—because it is clearly foreclosed by 

McConnell and Citizens United. See Indep. Institute, 70 F. Supp. 3d at 507. Regardless of 

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whether one draws the line between express advocacy and issue advocacy at communications 

that are the “functional equivalent of express advocacy” or “unambiguously campaign related,” 

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 language appeared in Buckley, but only as a descriptive phrase incidental to 

the Court’s narrowing construction of the term “expenditure” to encompass only express 

advocacy. 424 U.S. at 80.5

 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 Supreme Court’s actual jurisprudential approach 

to the 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. 

                                                            

5

 Reviewing the context in which the phrase “unambiguously campaign related” appeared 

in Buckley confirms its inconsequentiality. To address “serious problems of vagueness,” the 

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.” 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 Court’s “unambiguously campaign related” language was not a separate test, but merely 

described the express advocacy standard in this context. 

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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 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]resent-day 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 Court has likewise expressed approval of statutes requiring disclosure of 

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

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16

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 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 limiting 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 it is in the candidate 

advocacy context. See, e.g., California Pro-Life Council, Inc. 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 

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

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“[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” Argument with Respect to “Unambiguously 

Campaign Related” Communications Is Indistinguishable from the Claims 

Brought in McConnell and Citizens United. 

Although the Institute bills its case as an “as-applied” challenge, its principal argument 

rests on the same theory as the facial challenge to BCRA 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 not “the functional equivalent of express advocacy” 

or “unambiguously campaign related.” SJ Br. 33-38. But the petitioners in McConnell likewise 

challenged the EC disclosure provisions because they extended beyond express advocacy, and 

their facial challenge was rejected. 540 U.S. at 190, 196. “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, 561 U.S. 1040 (2010). 

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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: that an ad 

should be exempted from disclosure on an as-applied 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 369.6

 It recognized only one constitutionally mandated 

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

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

were disclosed.” Id. at 370; see also Buckley, 424 U.S. at 74. Here, the Institute has expressly 

disclaimed any concerns about harassment. See 70 F. Supp. 3d at 504, 509. It has thus failed to 

claim the only as-applied exemption from a facially valid campaign finance disclosure law that 

has been recognized by the Supreme Court. 

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

the Constitutionality of a Disclosure Requirement. 

The Institute now focuses on its tax status, arguing 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 that this distinction somehow 

affects the First Amendment analysis. SJ Br. 17-26. But the Supreme Court has never premised 

the constitutionality of a disclosure requirement on the tax status of the spender. On the contrary, 

                                                            

6

 Indeed, the Institute’s reworked argument resurrects the very same terminology pressed 

by Citizens United itself. See, e.g., Mem. Supp. Pl.’s Mot. for Summ. J. at 22-23, Citizens United 

v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) (No. 07-2240) (“The burden is on the government to 

justify the Disclosure Requirements by proving both that Congress has a compelling interest in 

regulating speech that is not unambiguously campaign related and that the Disclosure 

Requirements are narrowly tailored to such an interest—all as applied to the communications at 

issue here.”); see also Reply Br. for Appellant at 23, Citizens United v. FEC, 558 U.S. 310 

(2010) (No. 08-205) (asserting that EC “reporting requirements can only be applied to ‘spending 

that is unambiguously related to the campaign of a particular federal candidate’” under Buckley”) 

(emphasis in original). 

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the Court has questioned campaign finance laws that discriminate “based on the speaker’s 

identity.” Citizens United, 558 U.S. at 350. 

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

required. In McConnell, the Supreme Court sustained the EC disclosure provisions even though 

they contained no exemption for Section 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 Shays court found this exemption to be arbitrary and capricious 

because “the [FEC] did not fully address whether the tax code . . . preclude[s] Section 501(c)(3) 

organizations from making” the communications that BCRA “requires be regulated.” Id. at 128. 

No court has imposed such an exemption as a matter of constitutional law. 

The D.C. Circuit granted the Institute’s request for a three-judge court with respect to this 

argument in part because it was aware of “no precedent from the Supreme Court (or any other 

court) rejecting the argument,” but in fact, at least two circuits have rejected this theory. The 

Third Circuit rebuffed an argument that the Delaware EC law should be invalidated as applied to 

the plaintiff “by virtue of its status as a § 501(c)(3) organization.” DSF, 793 F.3d at 308. It 

instead concluded that “it is the conduct of an organization, rather than an organization’s status 

with the Internal Revenue Service, that determines whether it makes communications subject to 

the Act.” Id.; see also Indep. Inst. v. Gessler, 71 F. Supp. 3d 1194, 1203 (D. Colo. 2014) (“[T]he 

public’s interest in knowing who is speaking is in no way related to an entity’s organizational 

structure or its tax status.”), aff’d, 812 F.3d 787 (10th Cir. 2016). 

Indeed, far from mandating an exemption for Section 501(c)(3) organizations from 

disclosure laws, lower courts have questioned whether such an exemption is even 

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constitutionally permissible. In Tennant, the Fourth Circuit struck down an exemption for 

Section 501(c)(3) groups from West Virginia’s state EC law, finding that the exemption “does 

not bear a substantial relation to [the] governmental interest” in “providing the electorate with 

information about the source of campaign-related spending.” 706 F.3d at 289. The court of 

appeals reasoned that it was “not necessarily the case” that the campaign finance law and Section 

501(c)(3) were “coextensive” in terms of the electoral communications that they regulate, and 

consequently, “by exempting communications by § 501(c)(3) organizations from the definition 

of ‘electioneering communication,’ West Virginia likely deprived the electorate of information 

about these organizations’ election-related activities.” Id.; see also Shays, 337 F. Supp. at 124-

28.

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 donors to 

Section 501(c)(3) organizations are generally offered greater protection than donors to Section 

501(c)(4) groups,” citing 26 U.S.C. § 6104(c)(3) and § 6104(d)(3)(A) for this proposition. SJ Br. 

19. But the first cited provision 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 

provision, 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 

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21

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

which the Institute relies 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 “prohibited from engaging in any electioneering activity,” whereas other tax 

exempt groups, such as 501(c)(4) groups, may engage in considerable campaign intervention. SJ 

Br. 19. 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 “facts and circumstances” test for 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). Indeed, given 

the radically different purposes of tax law and campaign finance law it would be surprising if the 

definitions were “consistent,” as the Institute wishes were the case. SJ Br. 20. Tax law prohibits

Section 501(c)(3) groups from running certain campaign ads to prevent use of a tax subsidy for 

political ends; the challenged law here requires disclosure in connection with certain campaign 

ads to “provid[e] the electorate with information” and “deter[] actual corruption.” 540 U.S. at 

196.7

 

                                                            

7

     It bears noting that the bar against “campaign intervention” under 26 U.S.C. § 501(c)(3) 

is hardly self-executing. Despite the near-talismanic significance the Institute accords to Section 

501(c)(3) status, entities organized under this section may—and often do—disseminate 

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22

In short, although the Institute makes the conclusory assertion that its tax status “affects 

the required constitutional analysis, and further distinguishes this case from Citizens United,” Br. 

26, it offers no substantive reason why this should be the case. 

CONCLUSION 

For the foregoing reasons, this Court should deny the Institute’s motion for summary 

judgment, and grant summary judgement in favor of the Defendant. 

 

                                                                                                                                                                                               

statements that could easily be interpreted to qualify under the “facts and circumstances” test as 

prohibited political communications. See, e.g., M. Alex Johnson, Pulpit politics: Pastors endorse 

candidates, thumbing noses at the IRS, NBC News (Nov. 4, 2012), http://usnews.nbcnews.com/

_news/2012/11/04/14703656-pulpit-politics-pastors-endorse-candidates-thumbing-noses-at-theirs (noting that 1,600 pastors across the country violated the 501(c)(3) rules restricting campaign 

endorsements by churches with no apparent IRS action); Claudia Vargas, Turned down by the 

IRS, Philly’s DNC host committee goes for Plan B, The Philadelphia Inquirer (July 17, 2016), 

http://articles.philly.com/2016-07-17/news/74517432_1_tax-exemption-committee-irs (noting 

that IRS denied Democratic convention host committee application for 501(c)(3) status but 

granted “almost identical” application by Republican convention host committee). Certainly, the 

IRS has issued no ruling specifically endorsing the Institute’s proposed ad, and on its face, the ad 

appears to trigger several factors in the IRS test, including that it “identifies one or more 

candidates for a given public office” and “is delivered close in time to the election.” Rev. Rul. 

2007-41. Indeed, a 501(c)(3) group’s ad may contain considerable electoral content but still 

legitimately escape classification as prohibited campaign intervention if it implicates 

countervailing factors in the IRS’s test, such as if it is timed to “a non-electoral event such as a 

scheduled vote” or is “part of an ongoing series of communications by the organization on the 

same issue.” Id. Exempting 501(c)(3) groups from campaign finance disclosure laws simply by 

virtue of their tax status thus has the potential to greatly undermine the effectiveness of 

disclosure laws—and to deprive voters of information they need to cast meaningful votes. 

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Dated this 26th day of July 2016. 

Respectfully submitted, 

Donald J. Simon, DC Bar No. 256388 

SONOSKY, CHAMBERS, SACHSE 

ENDRESON & PERRY, LLP 

1425 K Street, NW, Suite 600 

Washington, D.C. 20005 

Tel.: (202) 682-0240 

Fred Wertheimer, DC Bar No. 154211 

DEMOCRACY 21 

2000 Massachusetts Avenue, NW 

Washington, D.C. 20036 

Tel.: (202) 355-9600 

/s/ J. Gerald Hebert 

J. Gerald Hebert, DC Bar No. 447676 

Tara Malloy, DC Bar No. 988280 

Megan P. McAllen, DC Bar No. 1020509 

THE CAMPAIGN LEGAL CENTER

1411 K Street, NW, Suite 1400 

Washington, D.C. 20005 

Tel.: (202) 736-2200 

Scott L. Nelson, DC Bar No. 413548 

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW 

Washington, D.C. 20009 

Tel.: (202) 588-1000 

Counsel for Amici Curiae

Case 1:14-cv-01500-CKK-PAM-APM Document 45 Filed 07/27/16 Page 28 of 29
i

CERTIFICATE OF COMPLIANCE 

 I hereby certify that this brief complies with the type-volume limitation of Local Rule 

7(o)(4) because it contains 25 pages or fewer, excluding the parts of the brief exempted by Fed. 

R. App. P. 32(a)(7)(B)(iii). 

/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: July 26, 2016 

Case 1:14-cv-01500-CKK-PAM-APM Document 45 Filed 07/27/16 Page 29 of 29