No. 14-5249

444444444444444444444444

In the

United States Court of Appeals

for the District of Columbia Circuit

________________

INDEPENDENCE INSTITUTE,

Appellant,

v. 

FEDERAL ELECTION COMMISSION,

Appellee.

________________

On Appeal from the

United States District Court for

the District of Columbia

_______________

Brief Amicus Curiae of Citizens United, Citizens United Foundation, U.S.

Justice Foundation, Free Speech Coalition, Free Speech Defense and

Education Fund, and Conservative Legal Defense and Education Fund in

Support of Appellant and Reversal

________________

MICHAEL CONNELLY HERBERT W. TITUS*

U.S. JUSTICE FOUNDATION WILLIAM J. OLSON

932 D Street, Suite 2 JOHN S. MILES

Ramona, California 92065 JEREMIAH L. MORGAN

Counsel for Amicus Curiae ROBERT J. OLSON

U.S. Justice Foundation WILLIAM J. OLSON, P.C.

370 Maple Avenue W., Suite 4

MARK B. WEINBERG Vienna, Virginia 22180-5615

WEINBERG, JACOBS & TOLANI, LLP (703) 356-5070

10411 Motor City Drive, Suite 500 Counsel for Amici Curiae

Bethesda, Maryland 20817

Counsel for Amici Curiae *Attorney of Record 

FSC and FSDEF April 15, 2015

444444444444444444444444

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CERTIFICATE AS TO

PARTIES, RULINGS, AND RELATED CASES

Parties and Amici

Except for the following, all parties, intervenors, and amici curiae

appearing before the district court below and this Court are listed in the Brief for

Appellant: amici Citizens United, Citizens United Foundation, U.S. Justice

Foundation, Free Speech Coalition, Inc., Free Speech Defense and Education

Fund, Inc., and Conservative Legal Defense and Education Fund.

Ruling under Review

References to the ruling at issue appear in the Brief for Appellant.

Related Cases

To the best of counsel’s knowledge, this case has not been previously

before this Court or any court other than the district court below. Counsel are

unaware of any related cases currently pending in this Court or any other court.

Statutes and Regulations

All applicable constitutional provisions, statutes, and regulations are set

forth in the Addendum to the Brief for Appellant.

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ii

CORPORATE DISCLOSURE STATEMENT

The amici curiae herein, Citizens United, Citizens United Foundation,

U.S. Justice Foundation, Free Speech Coalition, Inc., Free Speech Defense and

Education Fund, Inc., and Conservative Legal Defense and Education Fund,

through their undersigned counsel, submit this Corporate Disclosure Statement

pursuant to Rules 26.1(b) and 29(c) of the Federal Rules of Appellate Procedure,

and Rule 26.1 of the Rules of the United States Court of Appeals for the District

of Columbia Circuit. 

These amici curiae are non-stock, nonprofit corporations, none of which

has any parent company, and no person or entity owns them or any part of them. 

These amici curiae are represented herein by Herbert W. Titus, counsel of

record, William J. Olson, John S. Miles, Jeremiah L. Morgan, and Robert J.

Olson of William J. Olson, P.C., 370 Maple Avenue West, Suite 4, Vienna,

Virginia 22180-5615. Michael Connelly, U.S. Justice Foundation, 932 D Street,

Suite 2 Ramona, California 92065 is co-counsel for Amicus Curiae U.S. Justice

Foundation. Mark B. Weinberg of Weinberg, Jacobs & Tolani, LLP, 10411

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Motor City Drive, Suite 500, Bethesda, Maryland 20817 is co-counsel for Amici

Curiae Free Speech Coalition and Free Speech Defense and Education Fund.

 /s/ Herbert W. Titus 

Herbert W. Titus

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TABLE OF CONTENTS

Page

Certificate as to Parties, Rulings, and Related Cases. . . . . . . . . . . . . . . . . . i

Corporate Disclosure Statement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Glossary of Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Interest of Amici Curiae.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT

I. THE DISTRICT COURT ERRED IN DECIDING THE MERITS RATHER

THAN CONVENING A THREE-JUDGE COURT AS REQUIRED BY THE

BIPARTISAN CAMPAIGN REFORM ACT

A. The District Court’s Reading of Citizens United v. Federal

Election Commission Collides with McIntyre v. Ohio Election

Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. The Institute Is Entitled to a Three-Judge Court. . . . . . . . . . . . 14

CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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v

TABLE OF AUTHORITIES

Page

CONSTITUTION

* Amendment I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11, 14

STATUTES

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

Bipartisan Campaign Reform Act of 2002. . . . . . . . . . . . . . 1, 3, 5, 6, 13, 15

Federal Election Campaign Act of 1971. . . . . . . . . . . . . . . . . . . . . . . . . 13

REGULATIONS

11 C.F.R. § 100.29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CASES

Buckley v. Valeo, 424 U.S. 1 (1976) .. . . . . . . . . . . . . . . . . . . . . . . . 7,14

Center for Individual Freedom v. Van Hollen, 694 F.3d 108 

(D.C. Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

* Citizens United v. F.E.C., 558 U.S. 310 (2010).. . . . . . . . . . 6, 8, 9, 14, 17

* McIntyre v. Ohio Election Commission, 514 U.S. 334 (1995). . . . 3, 8, 10-14

Talley v. California, 362 U.S. 60 (1960).. . . . . . . . . . . . . . . . . . . . . . . 4, 8

Turner Broadcasting System v. FCC, 512 U.S. 622 (1994). . . . . . . . . . . 9, 10

Van Hollen v. FEC, 2014 U.S.Dist. LEXIS 164833 

(D.D.C. Nov. 25, 2014) .. . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17

MISCELLANEOUS

J. Miller, Monopoly Politics (Hoover Institution Press, 1999). . . . . . . . . . . 2

An Englishman, Common Sense (1775). . . . . . . . . . . . . . . . . . . . . . . . . 2

* Authorities chiefly relied upon. 

GLOSSARY OF ABBREVIATIONS

BCRA Bipartisan Campaign Reform Act of 2002

FEC Federal Election Commission

FECA Federal Election Campaign Act of 1971

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INTEREST OF AMICI CURIAE

1

The amici curiae are nonprofit organizations, exempt from federal taxation

under sections 501(c)(3) or 501(c)(4) of the Internal Revenue Code, and each is

dedicated, inter alia, to the correct construction, interpretation, and application

of the law. These amici have filed amicus curiae briefs in several cases

involving the Federal Election Campaign Act and the Bipartisan Campaign

Reform Act, including an amicus curiae brief in the first appeal of Center for

Individual Freedom v. Van Hollen before this Court in 2012.2

SUMMARY OF ARGUMENT

This case challenges a statute cleverly crafted by incumbent Congressmen

to discourage nonprofit organizations from communicating with their

constituencies about those representatives’ activities in Washington, D.C.,

including important legislation coming before Congress of the sort involved in

this case. Rather than impose an obviously unconstitutional ban on constituent

communications, the Bipartisan Campaign Reform Act of 2002 (“BCRA”)

 All parties have consented to the filing of this brief amicus curiae. No 1

party’s counsel authored the brief in whole or in part. No party or party’s

counsel contributed money that was intended to fund preparing or submitting the

brief. No person other than these amici curiae, their members or their counsel

contributed money that was intended to fund preparing or submitting this brief.

 See 2http://www.lawandfreedom.com/site/election/VanHollen_

Amicus.pdf.

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compels nonprofit organizations to violate their fundamental constitutional right

to exercise their freedom of the press anonymously, so that powerful members of

Congress can have a complete list of the names and address of those relatively

wealthy persons who would dare to meddle in their Districts. Members of

Congress have one overriding objective: re-election. They have designed

campaign finance law to favor incumbents and allow them to be able to vote and

act as they please, with as little interference from their constituencies as possible. 

See generally J. Miller, Monopoly Politics (Hoover Institution Press, 1999), pp.

89, 127-29. 

The right to criticize and petition government anonymously is not new — it

is a right that traces its ancestry in the United States to the 1735 trial of printer

and government critic John Peter Zenger, and to Thomas Paine’s decision in

1775 to publish the pamphlet Common Sense under the pseudonym, “An

Englishman.” The public rationale for laws like BCRA is always high-sounding 

— that “the people” might be better able to evaluate the message by knowing

who is communicating — but this is subterfuge. Just as King George wanted to

know who published Common Sense, Senators McCain and Feingold wanted to

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know who would dare to communicate with their constituents about their

activities in Washington, D.C. 

When incumbent Congressmen establish rules by which the American

people can communicate about their behaviors, the courts owe Congress no

deference. Rather, courts have a duty to the Constitution to strike down such

laws which punish legitimate political discourse. The district court below wholly

ignored these free press principles set out in McIntyre v. Ohio Election

Commission, 514 U.S. 334 (1995).

Knowing that the courts would see through a statute that required

disclosure of financial sources of the print media, the statute was limited to

broadcast media only (arguably the most effective way to reach the people), and

was limited to the time immediately prior to elections (when Congress often

attempts to slip through unpopular legislation). As this case demonstrates, the

Bipartisan Campaign Reform Act requires the disclosure of certain donors to an

organization that makes an “electioneering communication,” regardless of

whether that communication actually includes any real electioneering.

In BCRA, Congress has given to each member a form of copyright

protection over the use of his name. Whenever a speaker has the temerity to

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name the name of an incumbent Congressman who will be on the ballot in the

next election, the law is triggered. When members of Congress learn that a

person gives money to fund an effort to pressure them, they have many means at

their disposal to leverage the power of government to bring pressure on those

individuals and companies. Of course, compelled public disclosure chills free

expression of ideas, and therefore the very existence of the law achieves most of

the objective desired, without the need for Congressmen to need to explain to the

donors how their particular businesses may be vulnerable to government policies. 

Justice Black opined in Talley v. California, 362 U.S. 60 (1960), that the

constitutional right to communicate anonymously is rooted, firstly, in the no

licensing/no censorship principle of the freedom of the press, and only

secondarily in the privacy protection afforded by the guarantee of freedom of

assembly. See id. at 62-65. Although a handful of court decisions have made

the mistake of deferring to Congress in such matters, the fixed rule remains —

the author and publisher have the editorial right to determine whether to disclose

their own identity. The district court decision below ignored that fundamental

editorial right and, in doing so, erroneously concluded that there was no need for

a three-judge court, there being no substantial Constitutional question. 

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INTRODUCTION

This appeal concerns the constitutionality of the compulsory disclosure

provision of the Bipartisan Campaign Reform Act, as applied to the radio

broadcast of an issue ad by the Independence Institute (a nonprofit corporation

exempt from federal income taxation under Internal Revenue Code

section 501(c)(3). The ad in question was written to encourage the people of

Colorado to exercise their right to petition government to urge their two sitting

United States Senators to vote in favor of a bill then pending in Congress — the

Justice Safety Valve Act.

The Federal Election Commission (“FEC”) has taken the position that this

issue ad is an electioneering communication because it meets all four criteria in

its regulation. First, incumbent Senator Mark Udall, one of those referred to in

the ad, was a candidate for reelection. Second, the ad was scheduled to be

broadcast within 60 days of a general election. Third, the ad was targeted to the

relevant electorate. Fourth, the expenditure for the ad exceeded $10,000. See

52 U.S.C. § 30104(f)(3) (formerly 2 U.S.C. § 434(f)(3)); 11 C.F.R. § 100.29. 

Therefore, the FEC believes the ad qualified under BCRA as an electioneering

communication, making it subject to the BCRA disclosure rules. These

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disclosure rules include making a public filing with the FEC of the names and

addresses of all donors who gave an aggregate of $1,000 or more since the first

day of the preceding calendar year to the ad sponsor.

On September 2, 2014, Independence Institute filed suit in the U.S.

District Court for the District of Columbia seeking a ruling that, as applied to its

issue ad, the BCRA disclosure requirement unconstitutionally abridged its

freedom of speech. Pursuant to BCRA, 52 U.S.C. § 30110 note, the Institute

filed an application for a three-judge court. The district court denied the

Institute’s application on the sole ground that the U.S. Supreme Court had

decided, in Citizens United v. Federal Election Commission, 558 U.S. 310

(2010), that the BCRA mandatory disclosure provision applied to all

electioneering communications as defined by federal law, irrespective of whether

the reference to a candidate expressly advocated his election or defeat, or was the

functional equivalent of express advocacy. Pointedly, the district court

concluded that the Institute was not entitled to a hearing before a three-judge

court and dismissed its complaint because its “claim is squarely foreclosed by

Citizens United.” Opening Brief for Plaintiff-Appellant (“Inst. Br.”) at 9. 

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On appeal, the Institute vigorously contests the district court’s reading of

Citizens United. It urges this Court to limit the Citizens United mandatory

disclosure ruling to its facts. Pointing out that whereas the electioneering

communication involved in Citizens United was “unambiguously campaign

related,” the Institute’s communication was a genuine issue ad — urging

Colorado’s two Senators to support a specific bill. Only by happenstance was

one of the two U.S. Senators from Colorado then a candidate for reelection. 

Inst. Br. at 9-11. 

Under Buckley v. Valeo, 424 U.S. 1 (1976), the Institute claims, “the

government may only regulate speech that is ‘unambiguously campaign related,’

thereby strictly protecting genuine issue speech.” Id. at 26. Otherwise, the

Institute asserts, the disclosure mandate of the names and addresses of donors

supporting genuine issue ads would transgress upon “an unbroken, 60-year line

of jurisprudence ... acknowledg[ing] that ‘[e]ffective advocacy of both public and

private points of view, particularly controversial ones, is undeniably enhanced by

group association.’” Id. at 27. 

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ARGUMENT

I. THE DISTRICT COURT ERRED IN DECIDING THE MERITS

RATHER THAN CONVENING A THREE-JUDGE COURT AS

REQUIRED BY THE BIPARTISAN CAMPAIGN REFORM ACT.

A. The District Court’s Reading of Citizens United v. Federal

Election Commission Collides with McIntyre v. Ohio Election

Commission.

In addition to failing to acknowledge the threat to the freedom of

association posed by its broad reading of the BCRA disclosure mandate, an issue

briefed by the Institute (see, e.g., Inst. Br. at 28, 52), the district court below

completely overlooked the impact that such a reading will have on the First

Amendment anonymity principle articulated and applied by the Supreme Court 3

in McIntyre v. Ohio Election Commission, 514 U.S. 334 (1995).4

In McIntyre, the Supreme Court struck down an Ohio law that required

public disclosure of the “name and residence” of any “person” responsible for

“any other form of general publication which is designed to promote ... the

 See Talley v. California, 362 U.S. 60 (1960). 3

 As acknowledged in Citizens United, the McIntyre principle is not 4

limited to those “forms of communication” of which our founders were aware;

rather, today’s “speakers and media are entitled to [no] less First Amendment

protection than those types of speakers and media that provided the means of

communicating political ideas when the Bill of Rights was adopted.” Id. at 353-

54. 

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adoption or defeat of an issue ... or to ... make any expenditure for the purpose

of financing political communications....” Id. at 338 (emphasis added).

Although the Court specified that its ruling “discusses only written

communications,” and not radio or television broadcasts, its reasoning was not so

confined. Id. Rather, the Court simply noted that “[n]o question concerning 5

[broadcasts] is raised in this case.” Id. In further clarification of this point, the

Court explained that, although the “special physical characteristics of broadcast

transmission” may give rise to limited First Amendment accommodations, “the

mere assertion of dysfunction or failure in a speech market, without more, is not

sufficient to shield a speech regulation from the First Amendment standards

applicable to nonbroadcast media.” Turner Broadcasting System v. FCC, 512

U.S. 622, 640 (1994).

The BCRA mandatory disclosure provision fares no better than the

disclosure requirement in McIntyre. Enacted into law to correct what Congress

 Indeed, as stated in Citizens United, “television ... owned by media 5

corporations have become the most important means of mass communication in

modern times.” 558 U.S. at 353. Continuing, the Court asserted that “[t]he

First Amendment was certainly not understood to condone the suppression of

political speech in society’s most salient media.... At the founding, speech was

open, comprehensive, and vital to society’s definition of itself; there were no

limits on the sources of speech and knowledge.” Id.

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believed to be a loophole that permitted sham issue ads that functioned as express

advocacy for the election or defeat of a candidate for federal office, the BCRA

mandate decidedly was not the product of “the inherent physical limitation on the

number of speakers who may use the broadcast medium[,] ... permit[ting] the

Government to place limited content restraints, and impos[ing] certain

affirmative obligations, on broadcast licensees.” See Turner at 638. Instead, the

BCRA disclosure mandate is an effort to exercise direct editorial control over

communications, requiring the user of broadcast media to disclose the identity of

the “true” publisher. By forcing the user to make known who is financially

behind the ad, the BCRA mandate purportedly was designed to achieve a better

informed public.6

That policy rationale was precisely the one put forward by the State of

Ohio to support its prosecution of Mrs. McIntyre for failure to disclose her name

and address on the “leaflets” that were being circulated in opposition to a

proposed school tax levy. See McIntyre at 338-40. In response, the Supreme

Court stated unequivocally that “an author’s decision to remain anonymous, like

other decisions concerning omissions or additions to the content of a publication,

 Of course, in addition to the public learning who funds such

6

communications, the Members of Congress learn this as well. 

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is an aspect of the freedom of speech protected by the First Amendment.” Id. at

342. Indeed, the Court “recalled [that] England’s abusive press licensing laws

and seditious libel prosecutions” oppressed the marketplace of ideas such that

“‘persecuted groups and sects from time to time throughout history have been

able to criticize oppressive practices and laws either anonymously or not at all.’” 

Id. 

Although the Court opined that the identity of a speaker, if withheld, might

make his message less effective, the First Amendment committed that decision to

the speaker, not to the government. Indeed: 

quite apart from any threat of persecution, an advocate may believe

her ideas will be more persuasive if her readers are unaware of her

identity. Anonymity thereby provides a way for a writer who may

be personally unpopular to ensure that readers will not prejudge her

message simply because they do not like its proponent. [Id.] 

This same First Amendment principle applies to those who financially support

the actual communication. By choosing not to disclose the identity of an ad’s

financial supporters, a broadcast media user is exercising editorial control that

the First Amendment exclusively vests in the broadcaster.

In McIntyre, Ohio attempted to evade this anonymity principle by urging

the Supreme Court to adopt an exception for communications “intended to

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influence the electoral process.” See id. at 344. The McIntyre Court rejected

that effort, relying on its long-standing precedents that such “core political

speech” included Mrs. McIntyre’s “handing out leaflets in the advocacy of a

politically controversial viewpoint ... the essence of First Amendment

expression.” Id. at 347. 

Further, the McIntyre Court rejected Ohio’s contention that her freedom of

speech should be subject to the state’s interest in an informed electorate:

Insofar as the interest in informing the electorate means nothing

more than the provision of additional information that may either

buttress or undermine the argument in a document, we think the

identity of the speaker is no different from other components of the

document’s content that the author is free to include or exclude....

The simple interest in providing voters with additional relevant

information does not justify a state requirement that a writer make

statements or disclosures she would otherwise omit.... Ohio’s

informational interest is plainly insufficient to support the

constitutionality of its disclosure requirement. [Id. at 348-49.]

 Undeterred, Ohio pressed forward with yet an additional argument — that

its forced identity policy was designed to curb fraud and libel. The McIntyre

Court, however, found the statute overly broad, sweeping into its prohibitive

path all sorts of communications, not just those that create greater risks of fraud

or libel. Id. at 351-53. In contrast with Ohio’s broad-based statute, the Court

cited the Federal Election Campaign Act of 1971 (“FECA”), which

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differentiated between direct contributions to candidates and independent

expenditures, the latter being sufficiently circumscribed so as to “alleviate[] the

danger that expenditures will be given as a quid pro quo for improper

commitments from the candidate.” Id. at 353.

Applying the McIntyre reasoning to BCRA’s mandatory disclosure

provision here, it is one thing to require the names and addresses of donors

whose contributions are made to support express advocacy, or its functional

equivalent. It is quite another to require disclosure of the names and addresses

of donors whose contributions, as here, are made to support genuine issue ads

that just happen to refer to a government official who is currently engaged in a

campaign. As the McIntyre Court observed, FECA:

regulates only candidate elections, not referenda or other issue-based

ballot measures.... In candidate elections, the Government can

identify a compelling state interest in avoiding the corruption that

might result from campaign expenditures. Disclosure of

expenditures lessens the risk that individuals will spend money to

support a candidate as a quid pro quo for special treatment after the

candidate is in office. Curriers of favor will be deterred by the

knowledge that all expenditures will be scrutinized ... by the public

for just this sort of abuse. [Id. at 356]

Even further, Independence Institute has ably argued in its brief that the

district court’s decision below would put a more expansive disclosure

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requirement upon genuine issue ads than would be imposed upon express

advocacy or its functional equivalent. See Inst. Br. at 5-6, 11-12, 47-51. By

overbroadly construing a single statement in Citizens United, the district court

below, like the State of Ohio in McIntyre, took a “blunderbuss approach” to the 7

Institute’s First Amendment claims, shooting them down as if they were clearly

foreclosed by Supreme Court precedent. Under McIntyre, Supreme Court

precedent is to the contrary.

B. The Institute Is Entitled to a Three-Judge Court.

On October 6, 2014, the district court below denied the Institute’s request

for a three-judge court. At the time of this decision, as the Institute points out in

its brief, “the FEC [had] promulgated 11 C.F.R. § 120(c)(9), which imposed an

earmarking limitation on BCRA’s electioneering communication disclosure

requirements.” Inst. Br. at 5. According to that rule, corporations making

electioneering communications would be required to disclose only those donors

whose contributions were made “for the purpose of furthering electioneering

communications.” Inst. Br. at 48. Designed by the FEC to conform the BCRA

disclosure mandate with the disclosure mandate governing independent

 McIntyre at 357. 7

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expenditures under Buckley, the rule similarly would protect corporations

engaging in electioneering communications: only the identities of those donors

whose contributions were intended to promote the BCRA-defined

communications would be disclosed. See id.

On November 5, 2014, one month after the district court below denied the

Institute’s request for a three-judge court, U.S. District Court Judge Amy

Jackson struck down the FEC disclosure rule as “arbitrary, capricious, and

contrary to law[,] an unreasonable interpretation of ... BCRA.” Van Hollen v.

FEC, 2014 U.S.Dist. LEXIS 164833, *3 (D.D.C. Nov. 25, 2014). As the

Institute’s brief points out, this new ruling, if reversed on appeal, would mean

that “only the donors who specifically gave money for” an ad expressly

advocating the reelection of Senator Udall would be required to be disclosed. 

Inst. Br. at 51. However, if Van Hollen is affirmed, and “if the Independence

Institute runs the ad as proposed in this case — without any candidate advocacy,

express or implied — then all of the nonprofit’s donors are subject to

disclosure.” Id.

In her 2014 Van Hollen decision, Judge Jackson explains that her 2012

opinion had previously found that the FEC had exceeded its authority in

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promulgating the BCRA disclosure rule “because the problem it was trying to

remedy was not — even as the agency characterized its task — to interpret an

ambiguity in the statute, but rather, to address a problem not contemplated by the

statute that was ostensibly created by the Supreme Court’s decisions in FEC v.

Wisconsin Right to Life, Inc. ... and Citizens United.” Van Hollen at *2. 

However, in the first appeal, the Court of Appeals in the Van Hollen matter

reversed, concluding that BCRA’s forced-disclosure statute is “anything but

clear, especially when viewed in the light of the Supreme Court’s decisions in

Citizens United ... and ... Wis. Right to Life, Inc.” See Center for Individual

Freedom v. Van Hollen, 694 F.3d 108, 110 (D.C. Cir. 2012).

Notwithstanding this constantly changing legal landscape, the court below

based its decision rejecting the three-judge court exclusively on the proposition

that Citizens United clearly resolved the scope of BCRA’s disclosure

requirement. One would think that this constitutional conundrum alone would be

sufficient to have convinced the district judge below to grant the Institute’s

motion to convene a three-judge court. Surprisingly, entirely missing from the

opinion of the district court below is any reference to the Van Hollen litigation,

even though it was initiated in 2011, and was addressed by the Court of Appeals

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on September 18, 2012, over two years before the district court denied the

Institute’s request for a three-judge court. In light of the implications of the Van

Hollen litigation alone, the Institute has presented a “substantial” constitutional

claim.

CONCLUSION

The district court’s denial of the Independence Institute’s request for a

three-judge court was erroneous and should be reversed. 

Respectfully submitted,

/s/ Herbert W. Titus

______________________________

MICHAEL CONNELLY HERBERT W. TITUS*

U.S. JUSTICE FOUNDATION WILLIAM J. OLSON

932 D Street, Suite 2 JOHN S. MILES

Ramona, California 92065 JEREMIAH L. MORGAN

Counsel for Amicus Curiae ROBERT J. OLSON

U.S. Justice Foundation WILLIAM J. OLSON, P.C.

370 Maple Avenue West, Suite 4

MARK B. WEINBERG Vienna, Virginia 22180-5615

Weinberg, Jacobs & Tolani, LLP (703) 356-5070

10411 Motor City Drive, Suite 500 Counsel for Amici Curiae

Bethesda, Maryland 20817

Counsel for Amici Curiae *Attorney of record

FSC and FSDEF April 15, 2015

USCA Case #14-5249 Document #1547567 Filed: 04/15/2015 Page 23 of 25
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

IT IS HEREBY CERTIFIED:

1. That the foregoing Brief Amicus Curiae of Citizens United, et al., in

Support of Appellant complies with the type-volume limitation of Rule

32(a)(7)(B), Federal Rules of Appellate Procedure, because this brief contains

3,410 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii).

2. 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

WordPerfect version 14.0.0.756 in 14-point CG Times.

/s/ Herbert W. Titus

__________________________

Herbert W. Titus

Attorney for Amici Curiae

Dated: April 15, 2015

USCA Case #14-5249 Document #1547567 Filed: 04/15/2015 Page 24 of 25
CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that service of the foregoing Brief Amicus

Curiae of Citizens United, et al., in Support of Appellant and Reversal, was

made, this 15 day of April 2015, by the Court’s Case Management/Electronic th

Case Files system upon the attorneys for the parties.

/s/ Herbert W. Titus

_________________________

Herbert W. Titus

Attorney for Amici Curiae

USCA Case #14-5249 Document #1547567 Filed: 04/15/2015 Page 25 of 25