No. 16-743 

================================================================ 

In The 

Supreme Court of the United States 

---------------------------------  --------------------------------- 

INDEPENDENCE INSTITUTE, 

a Colorado nonprofit corporation, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

---------------------------------  --------------------------------- 

On Appeal From The United States 

District Court For The District Of Columbia 

---------------------------------  --------------------------------- 

OPPOSITION TO 

MOTION TO DISMISS OR AFFIRM 

---------------------------------  --------------------------------- 

 ALLEN DICKERSON

 Counsel of Record

 TYLER MARTINEZ

 ZAC MORGAN

 OWEN YEATES

 CENTER FOR COMPETITIVE POLITICS

 124 S. West St., Suite 201 

 Alexandria, Virginia 22314 

 adickerson@campaignfreedom.org 

 (703) 894-6800 

January 26, 2017 Counsel for Appellant

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 

WWW.COCKLELEGALBRIEFS.COM 
i 

TABLE OF CONTENTS 

Page 

TABLE OF CONTENTS ........................................ i 

TABLE OF AUTHORITIES ................................... ii 

ARGUMENT ........................................................... 1 

 I. Neither McConnell nor Citizens United forecloses the Independence Institute’s as-applied challenge .............................................. 1 

 II. The FEC has failed to demonstrate a substantial governmental interest in the Institute’s issue speech ........................................ 6 

 III. The protections afforded to issue speech 

and privacy of association will be gravely 

injured by dismissal or affirmance .............. 9 

CONCLUSION ....................................................... 13 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

Bates v. City of Little Rock, 361 U.S. 517 (1960) .......... 6 

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

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

Citizens United v. Fed. Election Comm’n, 558 

U.S. 310 (2010) ........................................ 1, 4, 5, 8, 12 

Ctr. for Competitive Politics v. Harris, 784 F.3d 

1307 (9th Cir. 2015) ................................................. 10 

Del. Strong Families v. Denn, 793 F.3d 304 (3d 

Cir. 2014), cert. denied, 579 U.S. ___, 136 S. Ct. 

2376 (2016) ........................................................ 10, 12 

Fed. Election Comm’n v. Wis. Right to Life, Inc., 

551 U.S. 449 (2007) ........................................... 5, 6, 7 

McConnell v. Fed. Election Comm’n, 540 U.S. 90 

(2003) ............................................................... passim

McCutcheon v. Fed. Election Comm’n, 572 U.S. 

___, 134 S. Ct. 1434 (2014) ........................................ 8 

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

(1995) ................................................................. 11, 12 

NAACP v. Ala. ex rel. Patterson, 357 U.S. 449 

(1958) ................................................................... 9, 11 

Talley v. Calif., 362 U.S. 60 (1960) .............................. 11 

United States v. Nat’l Treasury Emps. Union, 

513 U.S. 454 (1995) ................................................... 4 

Van Hollen v. Federal Election Commission, 811 

F.3d 486 (D.C. Cir. 2016) ......................................... 11 
iii 

TABLE OF AUTHORITIES – Continued 

Page 

Whole Woman’s Health v. Hellerstedt, 579 U.S. 

___, 136 S. Ct. 2292 (2016) ........................................ 4 

Wis. Right to Life, Inc. v. Fed. Election Comm’n, 

546 U.S. 410 (2006) ................................................... 1 

REGULATION

67 Fed. Reg. 65190 (Oct. 23, 2002) ............................. 10 

OTHER AUTHORITIES

Br. of Amicus Curiae Senate Majority Leader 

Mitch McConnell ............................................... 4, 5, 8 

Br. of Amicus Curiae United States Chamber of 

Commerce .................................................................. 9 
1 

ARGUMENT 

I. Neither McConnell nor Citizens United forecloses the Independence Institute’s as-applied challenge. 

 The government suggests that this case is “materially indistinguishable” from, and consequently “foreclosed” by, two of this Court’s rulings: McConnell v. 

Federal Election Commission, 540 U.S. 90 (2003), 

and Citizens United v. Federal Election Commission, 

558 U.S. 310 (2010). Mot. 9-10. Because this is the 

government’s sole substantive argument, and because 

the Independence Institute’s proposed speech bears 

no resemblance to the communications considered in 

either of those cases, summary treatment is inappropriate. 

1. McConnell, as a facial challenge, did not foreclose 

future as-applied challenges. McConnell, 540 U.S. at 

199 (“our rejection of plaintiffs’ facial challenge to the 

requirement to disclose individual donors does not 

foreclose possible future challenges to particular applications of that requirement.”). A mere three years after 

that decision, this Court again held that “[i]n upholding [BCRA] against a facial challenge, [the Court] did 

not purport to resolve future as-applied challenges.” 

Wis. Right to Life, Inc. v. Fed. Election Comm’n, 546 U.S. 

410, 411-412 (2006) (per curiam) (“WRTL I”).1

 

1

 The government ignores WRTL I, a case explicitly raised in 

the Jurisdictional Statement. J.S. at 16 n.3. 
2 

 2. McConnell plainly did not bless attempts to 

regulate genuine issue speech. Instead, it permitted 

the government to impose disclosure and disclaimer 

requirements upon “advertisements [that] do not urge 

the viewer to vote for or against a candidate in so many 

words, [but that] are no less clearly intended to influence the election.” 540 U.S. at 193. No such “sham” advocacy is present in this case. 

 The Commission relies upon the Court’s statement that it was not persuaded “that ‘the First Amendment erects a rigid barrier between express advocacy 

and so-called issue advocacy.’ ” Mot. at 11 (quoting 

McConnell, 540 U.S. at 193). But it ignores the context 

in which that statement was made. In particular, it 

fails to mention that “express advocacy” meant speech 

containing “magic words” calling for a specific electoral 

action. McConnell, 540 U.S. at 191 (defining express 

advocacy and explaining the “magic words” test’s origins); Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976) (per 

curiam) (examples of magic words). And it avoids the 

very next sentence, which clarifies that the Court was 

distinguishing between sham issue speech and the 

genuine article. McConnell, 540 U.S. at 193 (“[T]he 

presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad.”). 

 The Court, then, was permitting an expansion of 

disclosure regulation to include speech lacking “magic 

words,” and it was doing so because “the unmistakable 

lesson from the record in [that] litigation . . . is that 

Buckley’s magic-words requirement is functionally 
3 

meaningless.” Id. That conclusion was not speculative; 

it was based upon a record showing that “the vast majority” of ads lacking magic words had an electioneering purpose. Id. at 206.2

 The Institute’s advertisement does not have such 

a purpose, and so McConnell is inapplicable even on its 

own terms. Nevertheless, the Commission attempts to 

expand its holding to reach “the entire range of ‘electioneering communications,’ ” even where a particular 

communication does not electioneer. Mot. at 11 (quoting McConnell, 540 U.S. at 196). This is a misreading 

of McConnell, as that opinion itself recognized and as 

the foregoing discussion makes clear. McConnell, 540 

U.S. at 206 n.88 (“[W]e assume that the interests that 

justify the regulation of campaign speech might not apply to the regulation of genuine issue ads.”).3

 

 Accordingly, McConnell does not foreclose Appellant’s case. 

2

 The FEC made no attempt to build a similar record – or, 

indeed, any record – specific to the facts of this case. App. 10 

(“[T]he Commission did not even respond to the Institute’s Statement of Undisputed Material Facts.”). 

3

 The Commission notes that this particular reference to 

genuine issue ads dealt with a statutory ban on electioneering 

communications, and not on the lesser burdens imposed by compelled disclosure. Mot. at 15. But the statement itself refers to 

“regulation” more broadly, an understanding that accords with 

the many other instances where the Court distinguished between 

“so-called” issue speech and the real thing. See J.S. 14-15; McConnell, 540 U.S. at 199 (reserving future as-applied challenges 

to disclosure). 
4 

 3. Without McConnell, the Commission must 

rely upon the ads for Hillary: The Movie being “materially indistinguishable” from the Institute’s proposed 

ad.4

 Mot. at 11. But as-applied rulings only bind materially similar cases. See United States v. Nat’l Treasury 

Emps. Union, 513 U.S. 454, 478 (1995) (noting asapplied relief is a “narrower remedy” than a facial 

ruling and the outcome may change based on differing 

circumstances); cf. Whole Woman’s Health v. Hellerstedt, 579 U.S. ___, 136 S. Ct. 2292, 2305 (2016) (even 

under the doctrine of claim preclusion, “development 

of new material facts can mean that a new case and an 

otherwise similar previous case do not present the 

same claim.”). 

 The Institute’s ad bears no resemblance to those 

at issue in Citizens United, for the reasons already 

stated in the Jurisdictional Statement. J.S. at 20 (discussing nature of the ads in Citizens United); id. at 31 

(discussing the apolitical nature of the Institute’s ad). 

Those ads “sp[oke] about a candidate” – in her role as 

a candidate – “shortly before an election.” Citizens 

United, 558 U.S. at 369; see also id. at 368 (noting 

“references to her candidacy”).5

 They made pejorative 

4

 The Commission cannot rely upon Hillary: The Movie itself, 

which merited the overwhelming majority of this Court’s attention, because that film was the functional equivalent of express 

advocacy. Citizens United, 558 U.S. at 325 (“Hillary is equivalent 

to express advocacy. The movie, in essence, is a feature-length 

negative advertisement that urges viewers to vote against Senator Clinton for President.”). 

5 See Br. of Amicus Curiae Senate Majority Leader Mitch 

McConnell at 11 (“But context matters. The messages at issue in 
5 

references to her candidacy and encouraged the purchase of a film that was itself the functional equivalent 

of express advocacy. Id. at 326. 

 In sharp contrast, the Institute’s ad, reproduced at 

J.S. 6-7, “focus[es] on a legislative issue, take[s] a position on the issue, exhort[s] the public to adopt that position, and urge[s] the public to contact public officials 

with respect to the matter.” Fed. Election Comm’n v. 

Wis. Right to Life, Inc., 551 U.S. 449, 470 (2007) (“WRTL 

II”). It does “not mention an election, candidacy, political party, or challenger; and [it does] not take a position 

on a candidate’s character, qualifications, or fitness for 

office.” Id.

6

 Simply put, the Institute’s issue-focused ad 

is unquestionably distinct from Citizens United’s candidate-focused ads. The government’s insistence to the 

contrary is unpersuasive. 

 Neither McConnell’s facial ruling upholding disclosure for sham issue advocacy, nor Citizens United’s 

as-applied discussion of ads denigrating Senator Clinton’s presidential campaign, can foreclose the challenge presented here. For that reason alone, the 

government’s motion should be denied. 

Citizens United fell directly into the ambit of campaign-related 

speech.”). 

6 See Br. of Amicus Curiae McConnell at 16 (“Like the advertisements addressed in WRTL II, the Institute’s advertisement is 

pure issue speech.”). 
6 

II. The FEC has failed to demonstrate a substantial governmental interest in the Institute’s issue speech. 

 Because of its mistaken belief that this as-applied 

challenge to BCRA’s disclosure requirements is foreclosed, the Commission has consistently disregarded 

the need to demonstrate an interest in controlling the 

Institute’s particular communication. Its failure to do 

so is fatal to its defense. See WRTL II, 551 U.S. at 478 

(holding, in the context of strict scrutiny, that a governmental interest must “support[ ] each application of a 

statute restricting speech”) (Roberts, C.J., controlling 

opinion) (emphasis in original). 

 Buckley explicitly defined the government’s informational interest as “increas[ing] the fund of information concerning those who support the candidates,” 

such that voters can better define “the candidates’ constituencies.” Buckley, 424 U.S. at 81 (emphasis added). 

Consequently, the Court restricted the informational 

interest to situations involving “spending that is unambiguously related to the campaign of a particular 

federal candidate,” id. at 80, because it was only in that 

context that disclosure would provide any information 

about a candidate’s supporters. Bates v. City of Little 

Rock, 361 U.S. 517, 524 (1960) (demanding the government “demonstrate[ ] so cogent an interest in obtaining 

and making public the membership lists of these organizations as to justify the substantial abridgment of 

associational freedom which such disclosures will effect”); see also WRTL II, 551 U.S. at 465 (setting the 

“formidable” task of showing a governmental interest 
7 

and concomitant tailoring when “regulat[ing] . . . ads 

[that] are not express advocacy or its equivalent”) (citation omitted) (emphasis in original). 

The informational interest is particularly weak 

here. The advertisement tells voters nothing about the 

Institute’s view of the pending election, or of the 

named senators’ fitness for office, and so compelled disclosure adds nothing to the fund of information about 

the senators’ constituencies.7 The district court believed otherwise, stating that “the advertisement could 

very well be understood by Coloradoans as criticizing 

the Senate candidate’s position.” App. 26; see also Mot. 

at 8. But there was nothing in the ad itself supporting 

this view, and whether viewers “could very well” adopt 

a particular interpretation is not the standard. See

Buckley, 424 U.S. at 80 (limiting disclosure of expenditures to “spending that is unambiguously related to 

the campaign of a particular federal candidate”);

WRTL II, 551 U.S. at 467 (rejecting intent-and-effect 

test); id. at 470 (restricting analysis to whether the ad 

itself “is susceptible of no reasonable interpretation 

other than as an appeal to vote”). 

 Furthermore, the informational interest does not 

exist here even under the Commission’s own interpretation of that interest. It asserts “that the government has a substantial interest in ensuring that the 

public is informed about the source of electioneering communications and does not misattribute those 

7

 In fact, disclosure in this context could very well mislead 

voters by suggesting support or opposition where there is none. 
8 

communications to the candidate or a political party.” 

Mot. at 13-14. Such confusion is impossible here because the advertisement itself notes that the Institute 

“[p]aid for” and was “responsible for the content of the 

advertising” and that the ad was “[n]ot authorized by 

any candidate or candidate’s committee.” See J.S. at 7.8

 Thus, lacking any informational interest in the Institute’s speech, the Commission can only prevail by 

applying other, inapplicable, governmental interests 

erroneously relied upon by the district court. See Br.of 

Amicus Curiae McConnell at 23-24; App. 20, 30-33. In 

particular, given that there can be no anti-corruption 

interest where expenditures are not coordinated with 

candidates, the anti-corruption interest cannot sustain 

disclosure as applied to the Institute’s independent 

issue speech. See Citizens United, 558 U.S. at 357 (rejecting application of anti-corruption interest to independent speech). And, this Court has held that the 

anti-circumvention interest – which by definition can 

only support regulations ultimately sustained by other 

interests – cannot merely serve as a prophylaxis upon 

other prophylaxes. See McCutcheon v. Fed. Election 

Comm’n, 572 U.S. ___, 134 S. Ct. 1434, 1446, 1458 

(2014) (Roberts, C.J., controlling opinion). Here, where 

there is no informational or anti-corruption interest 

8

 The Institute’s disclaimer presents another important difference between this case and Citizens United. There, Citizens 

United argued that the informational interest could not even 

justify disclaimers, much less the compelled disclosure at issue 

here. Id., 558 U.S. at 367-69. The Institute’s advertisement freely 

shares the Institute’s authorship and disclaims any relationship 

with the named senators. 
9 

whatsoever, the anti-circumvention interest is simply 

inapplicable. 

III. The protections afforded to issue speech 

and privacy of association will be gravely 

injured by dismissal or affirmance. 

 This case presents a substantial federal question 

not merely because it raises a vital and, as described 

supra, unresolved question of First Amendment law. It 

also merits this Court’s review because the rationale 

applied by the district court, and defended by the government, would undermine contributors’ right “to pursue their lawful private interests privately and to 

associate freely with others in so doing.” NAACP v. Ala. 

ex rel. Patterson, 357 U.S. 449, 466 (1958). 

 As both the Institute and a number of amici have 

noted, the district court’s position is that whenever a 

communication mentions an officeholder – regardless 

of the content of the ad – that speech becomes presumptively regulable. E.g., Br. of Amicus Curiae United 

States Chamber of Commerce at 20 (“In the name of 

the generic informational interest accepted by the district court, legislatures could demand the donor rolls of 

Planned Parenthood, Black Lives Matter[ ], the Mexican American Legal Defense Fund, or any other group 

. . . based on a threadbare connection to elections.”). 

When it was asked to limit disclosure to speech about 

candidates qua candidates, just as this Court had done 

in Buckley, the district court suggested that such a safe 

harbor would constitute a sort of legal delusion. App. 
10 

25 (“[I]t would blink reality to try and divorce speech 

about legislative candidates from speech about the legislative issues for which they will be responsible.”). 

 If that is indeed the law – if the government may 

burden any speech it chooses because deciding what is 

truly campaign related is simply too difficult – then 

limitations against disclosure are mere matters of legislative grace.9

 The Third Circuit has already applied 

similar reasoning to uphold a state statute that demanded four years’ worth of general donor information 

from a charity that posted a neutral, nonpartisan voter 

guide on the Internet. Del. Strong Families v. Denn, 

793 F.3d 304, 308 (3d Cir. 2014), cert. denied, 579 U.S. 

___, 136 S. Ct. 2376 (2016) (“[I]ssue advocacy . . . [is] 

election-related speech . . . that seek[s] to impact voter 

choice by focusing on specific issues.”).10 And that court 

is not alone in disregarding the associational privacy 

of charitable donors. See Ctr. for Competitive Politics v. 

Harris, 784 F.3d 1307, 1314 (9th Cir. 2015) (“[Appellant] is incorrect when it argues that the compelled 

disclosure itself constitutes such an injury, and when it 

9

 It is unsurprising then, that while the McConnell Court 

reviewed BCRA at a time when the law shielded § 501(c)(3) 

groups from regulation, the Commission finds that fact wholly irrelevant to exacting review of what the government’s briefing concedes might well be legitimate § 501(c)(3) activity. 67 Fed. Reg. 

65190, 65200 (Oct. 23, 2002); Mot. at 18 (stating that the Institute 

“reasonably” believes 26 U.S.C. § 501(c)(3), which prohibits electioneering activity, does not prohibit the distribution of this “electioneering communication”). 

10 The government, unlike the district court, does not cite the 

Delaware Strong Families case. 
11 

suggests that we must weigh that injury when applying exacting scrutiny.”) (emphasis in original). 

 In NAACP v. Alabama, 357 U.S. at 460, and its 

progeny, including Buckley, this Court determined that 

privacy of association and belief is central to effective 

exercise of the freedom of speech, and that the government must pass exacting judicial review before it may 

violate that privacy. Buckley, 424 U.S. at 64 (“We have 

long recognized that significant encroachments on 

First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing 

of some legitimate governmental interest.”). Whatever 

“subordinating,” Buckley, 424 U.S. at 64, or “extraconstitutional,” Van Hollen v. Federal Election Commission, 811 F.3d 486, 501 (D.C. Cir. 2016), interests 

the government may have at stake, those interests 

have, until recently, been considered inferior to the 

Constitution’s protection of associational privacy. Talley v. Calif., 362 U.S. 60 (1960) (striking down disclosure statute regulating genuine issue speech); 

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

(1995) (striking down disclosure statute regulating 

small-scale issue advocacy); see also Buckley, 424 U.S. 

at 14 (“Discussion of public issues . . . [is] integral to 

the operation of the system of government established 

by our Constitution.”). 

 Accordingly, the collection of cases the Commission cites instead counsel in favor of noting probable 
12 

jurisdiction.11 Mot. at 12. Absent a course correction, 

governments will continue to rely upon a fundamental 

misreading of Citizens United to regulate far more 

speech than that case, or Buckley’s careful work, can 

support.12 This Court’s intervention is necessary to 

again protect the privacy of “groups whose only connection with the elective process arises from completely 

nonpartisan public discussion of issues of public importance.” Buckley v. Valeo, 519 F.2d 821, 870 (D.C. Cir. 

1975) (en banc) (per curiam); McIntyre, 514 U.S. at 343 

n.6 (noting the “respected tradition of anonymity in the 

advocacy of political causes . . . most famously embodied in the Federalist Papers”). 

---------------------------------  ---------------------------------

 

11 Last Term, the Court declined to issue a writ of certiorari 

in the Delaware Strong Families case discussed supra. Dissenting 

from denial, Justice Thomas observed that “if the Court is determined to stand by its ‘exacting scrutiny’ test, then this case is its 

proving ground.” Del. Strong Families, 136 S. Ct. at 2378 (Thomas, 

J., dissenting). That denial did, as Justice Thomas warned, “send[] 

a strong message that ‘exacting scrutiny’ means no scrutiny at 

all.” Id. 

12 See J.S. at 33 n.7 (citing state laws that have functionally 

eliminated any requirement that speech be made close in time to 

an election before triggering disclosure). 
13 

CONCLUSION 

 This Court should note probable jurisdiction. 

Respectfully submitted, 

ALLEN DICKERSON

 Counsel of Record 

TYLER MARTINEZ

ZAC MORGAN

OWEN YEATES

CENTER FOR COMPETITIVE POLITICS

124 S. West St., Suite 201 

Alexandria, Virginia 22314 

adickerson@campaignfreedom.org 

(703) 894-6800 

Counsel for Appellant 

Dated: January 26, 2017