IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

INDEPENDENCE INSTITUTE, 

a Colorado nonprofit corporation,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Case No. 1:14-cv-1500-CKK-PAM-APM

INDEPENDENCE INSTITUTE’S MOTION FOR SUMMARY JUDGMENT

AND MEMORANDUM IN SUPPORT

Dated: June 17, 2016

Allen Dickerson (D.C. Bar No. 1003781)

Tyler Martinez (D.C. Bar No. 1022937) 

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff 

Independence Institute

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Table of Contents

Table of Authorities....................................................................................................................... iii

Introduction......................................................................................................................................1

Statement of the Case.......................................................................................................................1

Summary of the Argument...............................................................................................................6

Argument .........................................................................................................................................8

I. BCRA imposes burdensome disclosure and reporting requirements. ...........................8

II. The violations of associational privacy and chilling of issue speech imposed by 

BCRA’s compelled disclosure regime require this Court’s exacting scrutiny. ...........11

a. Exacting Scrutiny as a Protection for Issue Speech and Associational Privacy ....11

b. Under Buckley’s exacting scrutiny, the government’s only legitimate interest is 

informational, and that interest extends only to speech that is “unambiguously 

campaign related.” .................................................................................................13

III. BCRA’s electioneering communication reporting and disclosure regime is 

insufficiently tailored as applied to the genuine issue speech of a § 501(c)(3) 

organization..................................................................................................................17

a. Congress and the Courts treat § 501(c)(3) organizations differently than § 

501(c)(4) organizations..........................................................................................18

b. Due to the difference in tax status, the work of Citizens United differs 

significantly from the Independence Institute’s proposed ad. ...............................21

IV. BCRA’s electioneering communications definition and disclosure regulations 

unconstitutionally burden the rights of the Independence Institute and its supporters 

to freedom of speech and association. .........................................................................26

a. The Supreme Court has consistently required that burdens on issue speech meet 

the tailoring requirements of exacting scrutiny, a trend that extends to Citizens 

United.....................................................................................................................26

b. WRTL II and Citizens United show that the government has only a limited 

interest....................................................................................................................33

V. Ruling in favor of the Institute and its activity keeps BCRA intact while properly 

limiting its reach to unambiguously campaign-related speech. ...................................38

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VI. The Independence Institute’s challenge is not moot because it intends to run 

substantively similar ads in the future. ........................................................................39

Conclusion .....................................................................................................................................42

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Table of Authorities

Cases

Am. Meat Inst. v. United States Dep’t of Agric., 

760 F.3d 18 (D.C. Cir. 2014).............................................................................................35

Bates v. City of Little Rock, 

361 U.S. 516 (1960).....................................................................................6, 12, 13, 26, 27

Buckley v. Valeo, 

424 U.S. 1 (1976)...................................................................................................... passim.

Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975).......................................................................................7, 28

Cao v. FEC, 

688 F. Supp. 2d 498 (E.D. La. 2010).................................................................................16

Cent. Hudson Gas & Elec. v. Public Serv. Comm’n, 

447 U.S. 557 (1980)...........................................................................................................35

Ctr. for Individual Freedom v. Van Hollen, 

694 F.3d 108 (D.C. Cir. 2012).............................................................................................9

Citizens United v. FEC, 

558 U.S. 310 (2010).................................................................................................. passim.

Citizens United v. FEC, 

530 F.Supp. 2d 274 (D.D.C. 2008)..................................................................22, 31, 34, 35

Citizens United v. Gessler, 

773 F.3d 200 (10th Cir. 2014) ...........................................................................................23

Council of the Dist. of Columbia v. Gray, 

42 F. Supp. 3d 134 (D.D.C. 2014).....................................................................................40

Council of the Dist. of Columbia v. Gray, 

No. 14-7067, 2015 U.S. App. LEXIS 8881 (D.C. Cir. May 27, 2015) .............................40

FEC v. Wis. Right to Life, Inc., 

551 U.S. 449 (2007).................................................................................................. passim.

First Nat’l Bank v. Bellotti, 

435 U.S. 765 (1978)...........................................................................................................11

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Grayned v. City of Rockford, 

408 U.S. 104 (1972)...........................................................................................................39

Holmes v. FEC, 

99 F. Supp. 3d 123 (D.D.C. 2015)...............................................................................40, 41

Indep. Inst. v. Coffman, 

209 P.3d 1130 (Colo. Ct. App. 2008) ................................................................................25

Indep. Inst. v. FEC, 

816 F.3d 113 (D.C. Cir. 2016).......................................................................5, 6, 17, 21, 41

Indep. Inst. v. FEC,

No. 14-5249, Order (D.C. Cir. Oct. 13, 2015) (Doc. No. 1577832)..................................41

Indep. Inst. v. FEC, 

70 F. Supp. 3d 502 (D.D.C. 2014).......................................................................................4

Indep. Inst. v. Williams, 

812 F.3d 787 (10th Cir. 2016) ...........................................................................................16

Lovell v. City of Griffin, 

303 U.S. 444 (1938)...........................................................................................................33

McConnell v. FEC, 

540 U.S. 93 (2003)...........................................................................7, 12, 14, 15, 29, 38, 39

McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003)...................................................................................14

McCutcheon v. FEC, 

572 U.S. ___, 134 S. Ct. 1434 (2014)............................................................................7, 16

Mills v. Alabama, 

384 U.S. 214 (1966)...........................................................................................................11

Moore v. Hosemann, 

591 F.3d 741 (5th Cir. 2009) .............................................................................................40

NAACP v. Ala., 

357 U.S. 449 (1958).....................................................................................6, 11, 12, 13, 26

NAACP v. Button, 

371 U.S. 415 (1963).....................................................................................................12, 27

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Nat’l Ass’n of Mfrs. v. SEC, 

800 F.3d 518 (D.C. Cir. 2015)...........................................................................................35

Nat’l Org. for Marriage v. McKee, 

649 F.3d 34 (1st Cir. 2011)................................................................................................39

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

581 F. Supp. 2d 1132 (D. Utah 2008)................................................................................16

N.M. Youth Organized v. Herrera, 

611 F.3d 669 (10th Cir. 2010) ..................................................................................... 15-16

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964)...........................................................................................................11

N.C. Right to Life, Inc. v. Leake, 

525 F.3d 274 (4th Cir. 2008) .............................................................................................15

Regan v. Taxation with Representation,

461 U.S. 540 (1983)...........................................................................................................18

R.J. Reynolds Tobacco Co. v. FDA, 

696 F.3d 1205 (D.C. Cir. 2012).........................................................................................35

Shays v. FEC, 

337 F. Supp. 2d 28 (D.D.C. 2004).....................................................................................21

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005).............................................................................................21

United States v. Williams, 

553 U.S. 285 (2008)...........................................................................................................35

Unity08 v. FEC, 

596 F.3d 861 (D.C. Cir. 2010)...........................................................................................41

Van Hollen v. FEC, 

851 F. Supp. 2d 69 (D.D.C. 2012).......................................................................................9

Van Hollen v. FEC, 

74 F. Supp. 3d 407 (D.D.C. 2014)...................................................................................4, 9

Van Hollen v. FEC, 

811 F.3d 486 (D.C. Cir. 2016).............................................................................................9

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Wash. Post v. Robinson, 

935 F.2d 282 (D.C. Cir. 1991)...........................................................................................40

Wisc. Right to Life v. Barland, 

751 F.3d 804 (7th Cir. 2014) .......................................................................................15, 16

Statutes

26 U.S.C. § 170(c)(2).....................................................................................................................18

26 U.S.C. § 501(c)(3).....................................................................................................2, 18, 19, 22

26 U.S.C. § 501(c)(4).....................................................................................................................22

26 U.S.C. § 501(h)...................................................................................................................19, 24

26 U.S.C. § 501(h)(2)(B)...............................................................................................................23

26 U.S.C. § 501(h)(2)(D)...............................................................................................................23

26 U.S.C. § 4911(c)(2)...................................................................................................................23

26 U.S.C. § 4911(c)(4)...................................................................................................................23

26 U.S.C. § 6104(b).......................................................................................................................10

26 U.S.C. § 6104(c)(3)...................................................................................................................19

26 U.S.C. § 6104(d)(3)(A).............................................................................................................19

28 U.S.C. § 2284..............................................................................................................................4

28 U.S.C. § 2284 (a-b).....................................................................................................................4

52 U.S.C. § 30101(11).....................................................................................................................9

52 U.S.C. § 30104(f)..............................................................................................................3, 6, 42

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

52 U.S.C. § 30104(f)(2)(E)..............................................................................................................9

52 U.S.C. § 30104(f)(2)(F) ..............................................................................................................9

52 U.S.C. § 30104(f)(3)(A)(i)(I)......................................................................................................9

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52 U.S.C. § 30104(f)(3)(A)(i)(II) ....................................................................................................9

52 U.S.C. § 30104(f)(3)(A)(i)(III)...................................................................................................9

52 U.S.C. § 30104(f)(3)(A)(ii).......................................................................................................38

52 U.S.C. § 30104(f)(3)(C)..............................................................................................................9

52 U.S.C. § 30104(f)(4).................................................................................................................10

52 U.S.C. § 30104(f)(7).................................................................................................................21

52 U.S.C. § 30110 note....................................................................................................................3

52 U.S.C. § 30111(f)......................................................................................................................20

Bipartisan Campaign Reform Act of 2002, 

Pub. L. 107-155, 116 Stat. 81 (2002)...................................................................................1

Rules

FED. R. CIV. P. 56.............................................................................................................................1

FED. R. EVID. 201(C) ......................................................................................................................40

D.D.C. Rule LCvR 7(h)...................................................................................................................1

11 C.F.R. § 100.29(c)(6)................................................................................................................21

11 C.F.R. § 104.20(b) ....................................................................................................................10

11 C.F.R. § 104.20(c)(9)............................................................................................................9, 10

26 C.F.R. § 1.501(c)(3)-1(a)(3)(i)..................................................................................................18

26 C.F.R. § 1.501(c)(3)-1(a)(3)(ii).................................................................................................19

26 C.F.R. § 1.501 (c)(3)-1(b)(2) ....................................................................................................20

26 C.F.R. § 1.501(c)(3)-1(b)(3) .....................................................................................................20

26 C.F.R. 1.501(c)(3)-1(c)(3)(ii)(b)...............................................................................................23

26 C.F.R. § 1.501(c)(3)-1(c)(3)(iii) .........................................................................................20, 23

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26 C.F.R. § 1.501(c)(3)-1(c)(3)(v).................................................................................................19

26 C.F.R. § 1.501(c)(3)-1(d)(3)(i)(b).......................................................................................19, 23

26 C.F.R. § 1.501(c)(3)-1(d)(3)(ii) ................................................................................................23

26 C.F.R. § 1.501(c)(3)-1(c)(3)(ii)(b)............................................................................................23

26 C.F.R. § 1.501(c)(4)-1(a)(2)(i)..................................................................................................20

26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii).................................................................................................20

IRS Rev. Rul. 2007-41, 2007-25 I.R.B. 1420................................................................................20

Other Sources

CREW et al. v. FEC, No. 15-2038, Compl. (D.D.C. Nov. 23, 2015) (ECF 1) ..............................25

CREW, Complaints Against American Dream Initiative, Arizona Future Fund, Jobs and Progress 

Fund, Inc., Michigan Citizens for Fiscal Responsibility, Mid America Fund, Inc., and 

Rule of Law Project, at 4 (June 15, 2016), available at

http://www.citizensforethics.org/page/-/PDFs/Omnibus%20DOJ%20complaint%206-15-

16.pdf .................................................................................................................................25

CREW, Press: “CREW Files Criminal, IRS Complaints Against 10 Dark Money Groups” 

http://www.citizensforethics.org/press/entry/crew-files-criminal-irs-complaints-against10-dark-money-groups.......................................................................................................25

Citizens United v. FEC, No. 07-2240, FEC Mem. of L. in Supp. of Mot. for Summ. J. 

(D.D.C. June 6, 2008) (ECF 55)........................................................................................22

FEC, Electioneering Communications Explanation and Justification, 

67 Fed. Reg. 65190 (Oct. 23, 2002)...................................................................................21

George W. Bush, Statement on Signing the Bipartisan Campaign Reform Act

(March 27, 2002) http://www.presidency.ucsb.edu/ws/?pid=64503.................................38

Indep. Inst. v. FEC, No. 14-5249, Ans. Br. (D.C. Cir. May 8, 2015) (Doc. No. 1551586)...........40

Indep. Inst. v. FEC, No. 14-5249, Reply Br. (D.C. Cir. May 22, 2015) (Doc. No. 1553771) ......40

Indep. Inst. v. FEC, No. 14-5249, Mot. to Supp. (D.C. Cir. Sept. 24, 2015) 

(Doc. No. 1574833) .............................................................................................................5

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INTERNAL REVENUE SERVICE, Social Welfare Organizations, http://www.irs.gov/Charities-&-

Non-Profits/Other-Non-Profits/Social-Welfare-Organizations.........................................18

Oral Argument, Indep. Inst. v. FEC, No. 14-5249 (D.C. Cir. Oct. 22, 2015) 

https://www.cadc.uscourts.gov/recordings/recordings2016.nsf/638E93666D13933685257

EE60058FB78/$file/14-5249.mp3.................................................................................5, 41

Van Hollen v. FEC, Nos. 15-5016 & 15-5017, Appellee Pet. for Rehearing En Banc, (D.C. Cir. 

Mar 4, 2016) (Doc. No. 1602481) .......................................................................................9

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Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule LCvR 7(h) of this 

Court, Plaintiff Independence Institute submits this Motion for Summary Judgment and 

Memorandum in Support.

Introduction

This case asks whether a communication that in no way “electioneers” may nevertheless 

be labeled an “electioneering communication” and regulated as such.

The Independence Institute—a well-established Colorado think tank—wished to produce an 

advertisement asking Colorado’s senators to take action concerning federal sentencing reform. The 

proposed advertisement takes no position whatsoever on either senator as a political candidate, and in 

fact makes no reference to any candidacy. Nor, as a § 501(c)(3) charity, is the Institute permitted to 

intervene in any candidate election—something which the relevant tax laws recognize this 

advertisement does not do. Nevertheless, the Bipartisan Campaign Reform Act of 2002, Pub. L. 107-

155, 116 Stat. 81 (2002) (“BCRA”), would classify this issue speech as an “electioneering 

communication,” forcing the Institute to file reports requiring, among other things, that it publically 

identify its donors. 

Because, in the context of this case, BCRA’s electioneering communications requirement will 

burden the First Amendment rights of the Institute and its supporters, while providing the electorate 

with no relevant information concerning those who support or oppose any candidate for office, 

summary judgment is appropriate.

Statement of the Case

Plaintiff Independence Institute (“Institute”) is a Colorado-based nonprofit corporation 

organized under § 501(c)(3) of the Internal Revenue Code and Colorado law. Undisputed Fact ¶¶ 

1-2. Established in 1985, the Institute has a long history of conducting research and educating the 

public on various aspects of public policy, including taxation, education, health care, and criminal 

Case 1:14-cv-01500-CKK-PAM-APM Document 36 Filed 06/17/16 Page 11 of 52
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justice. Id at ¶ 1. As a § 501(c)(3) entity, the Institute cannot “participate in, or intervene in 

(including the publishing or distributing of statements), any political campaign on behalf of (or in 

opposition to) any candidate for public office.” 26 U.S.C. § 501(c)(3).

To further its mission, in 2014, the Institute wished to run a radio advertisement supporting 

the Justice Safety Valve Act, a draft law that would allow federal judges substantial discretion in 

sentencing nonviolent offenders. The ad would urge viewers to contact both of Colorado’s sitting 

senators and express support for the Act, which was pending before the U.S. Senate. One of 

Colorado’s senators, Mark Udall, also happened to be a candidate for reelection. The proposed ad 

did not discuss or refer to Udall’s candidacy in any way.1 Nevertheless, the Institute’s proposed ad 

would qualify as an electioneering communication under the Bipartisan Campaign Reform Act 

(“BCRA”), because it mentioned Udall’s name within 60 days of the November 2, 2014 general 

election. 

The text of the proposed advertisement is as follows:

Independence Institute

Radio :60

“Let the punishment fit the crime” 

Let the punishment fit the crime.

But for many federal crimes, that’s no longer true.

Unfair laws tie the hands of judges, with huge increases in prison costs that help 

drive up the debt.

And for what purpose?

Studies show that these laws don’t cut crime.

 

1 When the Independence Institute first brought the challenge in 2014, the proposed ad mentioned 

both Colorado Senators Udall and Bennett. At the time, Senator Udall was a candidate seeking 

reelection, in which he was unsuccessful. Now, Senator Bennett is up for reelection, and the Justice 

Safety Valve Act remains under consideration by Congress, as S. 353. 

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In fact, the soaring costs from these laws make it harder to prosecute and lock up 

violent felons.

Fortunately, there is a bipartisan bill to help fix the problem – the Justice Safety 

Valve Act, bill number S. 619.

It would allow judges to keep the public safe, provide rehabilitation, and deter 

others from committing crimes.

Call Senators Michael Bennet and Mark Udall at 202-224-3121. Tell them to 

support S. 619, the Justice Safety Valve Act. 

Tell them it’s time to let the punishment fit the crime.

Paid for by Independence Institute, I2I dot org. Not authorized by any candidate or 

candidate’s committee. Independence Institute is responsible for the content of this 

advertising.

Because this radio communication would cost more than $10,000 and reach over 50,000 

natural persons in the Denver media market, it triggers BCRA’s disclosure requirements for 

electioneering communications. Undisputed Fact ¶ 4; 52 U.S.C. § 30104(f). 

Mindful of its supporters’ First Amendment right to private association, the Institute does 

not wish to report and disclose its donors and, as it is not engaged in political electioneering, does 

not believe it may constitutionally be required to do so. Consequently, the Independence Institute 

faces a dilemma: it may remain silent on issues important to its mission, or it may speak on the 

issue of federal sentencing guidelines, but only at the price of imposing a First Amendment harm 

upon its supporters. Accordingly, the Institute chose to file suit.

As a challenge to part of BCRA, this case is brought pursuant to an unusual procedure that 

was established by Congress in order to ensure the rapid review of constitutional questions raised 

by that law. 52 U.S.C. § 30110 note (“It shall be the duty of the United States District Court for 

the District of Columbia and the Supreme Court of the United States...to expedite to the greatest 

possible extent the disposition of the appeal”). This statute provides that challenges to a provision 

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of BCRA “shall be filed in the United States District Court for the District of Columbia...and shall 

be heard by a 3-judge court” pursuant to 28 U.S.C. § 2284. Id. Despite the mandatory and 

expeditious nature of this language—and despite the fact that this case has been briefed twice 

before an appellate court—this is the first time that the merits of this First Amendment challenge 

will be reached by a three-judge court as required by the Congress.

On September 2, 2014, the Institute filed a verified complaint and motion to convene “a 

district court of three judges.” 28 U.S.C. § 2284 (a-b), (ECF 1, ECF 3). Given the proximity of the 

electioneering communications period for the 2014 election, the Institute moved for preliminary 

relief two days later. (ECF 4).

This Court held a telephonic conference with the Parties, and shortly thereafter the Parties 

agreed to stipulate as to the scope of Plaintiff’s allegations and claims and to convert the Institute’s 

motion for preliminary relief into a motion for summary judgment. (ECF 14). The motion was 

fully briefed, and on October 6, 2014, this Court denied the Institute’s Application for a ThreeJudge Court, finding that “Plaintiff’s claims are foreclosed by clear United States Supreme Court 

precedent, principally by Citizens United v. Federal Election Commission,” and denied injunctive 

relief as moot. (ECF 23); Indep. Inst. v. FEC, 70 F. Supp. 3d 502, 503 (D.D.C. 2014).

The Institute timely appealed, and the FEC moved for summary affirmance. The Institute 

responded and cross-moved for summary reversal, on the grounds that this Court’s November 25, 

2014 decision invalidating an FEC regulation which placed moderate limits on BCRA’s disclosure 

provisions, Van Hollen v. FEC, 74 F. Supp. 3d 407 (D.D.C. 2014), materially altered this Court’s 

reasoning for denying the assembly of a three-judge court. On February 20, 2015, the D.C. Circuit 

denied both motions for summary relief. The Parties fully briefed the Institute’s appeal from denial 

of its application and the Court of Appeals scheduled oral argument for October 22, 2015.

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In its Answering Brief, despite having earlier conceded (in its motion for summary 

affirmance) that the Independence Institute’s challenge remained live after passage of the 2014 

election, the FEC argued for the first time that Plaintiff’s case had been mooted by that event. The 

Institute moved to supplement the record with a press release it issued “on November 3, 2014 that 

conclusively demonstrate[d]” the Institute’s “intention, in future years, to run substantively similar 

advertisements to the one at issue here.” Mot. to Supp. at 2, Indep. Inst. v. FEC, No. 14-5249(D.C. 

Cir. 2016) (Doc. No. 1574833). Although the FEC opposed the motion, once it was granted by the 

Court of Appeals the FEC abandoned its mootness objection before the Court at oral argument. 

Oral Argument at 24:53, Indep. Inst. v. FEC, No. 14-5249 (D.C. Cir. Oct. 22, 2015).2

On March 1, 2016, the D.C. Circuit reversed this Court and remanded with instructions to 

convene a three-judge court “[b]ecause Independence Institute’s complaint raises a First 

Amendment challenge to a provision of BCRA,” and it was therefore “entitle[d]...to a three-judge 

district court.” Indep. Inst. v. FEC, 816 F.3d 113, 115-16 (D.C. Cir. 2016). The mandate issued 

nearly two months later, on April 26, 2016. In response, a three-judge Court was promptly 

convened. (ECF 28-30).

Now, with the 2016 elections approaching, this Court may finally hear and reach the merits 

of this novel case, concerning which there is “no precedent from the Supreme Court (or any other 

court) rejecting the argument advanced here by Independence Institute.” Indep. Inst., 816 F.3d at

117.

 

2 Available at:

https://www.cadc.uscourts.gov/recordings/recordings2016.nsf/638E93666D13933685257EE600

58FB78/$file/14-5249.mp3

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Summary of the Argument

Under BCRA, communications that do not in any way “electioneer” nevertheless are 

regulated as “electioneering communications.” The law requires that, upon any mention of a 

candidate by name in a broadcast ad shortly before an election, an entity must report to the FEC 

and disclose certain of its donors. 52 U.S.C. § 30104(f). Genuine issue speech is not exempted or 

otherwise protected from this mandate. 

The Independence Institute, a § 501(c)(3) organization prohibited by Federal law from 

intervention in political campaigns, merely seeks to encourage the people of Colorado to ask that 

the state’s senators support a criminal justice reform provision. FEC v. Wisc. Right to Life, Inc., 

551 U.S. 449, 461 (2007) (“WRTL II”) (describing similar communication as a “genuine issue 

ad”). But, because of BCRA, it cannot do so without reporting to the Federal Election Commission 

and disgorging the names and addresses of certain donors for publication. 

The Supreme Court has long recognized that such compelled disclosure threatens “the right 

of [citizens]...to pursue their lawful private interests privately and to associate freely with others 

in so doing.” NAACP v. Ala., 357 U.S. 449, 466 (1958). This freedom is protected “not only against 

heavy-handed frontal attack, but also from being stifled by more subtle governmental interference” 

such as disclosure requirements and attendant sanctions for failing to disclose. Bates v. City of 

Little Rock, 361 U.S. 516, 523 (1960) (collecting cases). Accordingly, the “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,” but “must survive 

exacting scrutiny.” Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam) (citing to NAACP, 357 

U.S. at 463). This “strict test,” Buckley, 424 U.S. at 66, prohibits disclosure laws from reaching 

Case 1:14-cv-01500-CKK-PAM-APM Document 36 Filed 06/17/16 Page 16 of 52
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“groups that do no more than discuss issues of public interest on a wholly nonpartisan basis.”

Buckley v. Valeo, 519 F.2d 821, 872 (D.C. Cir. 1975) (en banc).

In the context of BCRA, it has been established that exacting scrutiny requires that the 

government demonstrate “a substantial relation between the disclosure requirement and a 

sufficiently important governmental interest.” Citizens United v. FEC, 558 U.S. 310, 366-367 

(2010) (internal quotation marks omitted) (citing Buckley, 424 U.S. at 64). Specifically, if the FEC 

cannot demonstrate that the disclosure of the Institute’s donors offers the electorate information 

about “spending that is unambiguously related to the campaign of a particular federal candidate,”

BCRA’s disclosure regime is unconstitutional as applied to the Institute. Buckley, 424 U.S. at 80; 

McCutcheon v. FEC, 572 U.S. ___, ___,134 S. Ct. 1434, 1456 (2014) (“[I]n the First Amendment 

context, fit matters”).

BCRA flunks this tailoring analysis as applied to the Institute’s genuine issue speech for a 

number of reasons. First, while the government has an interest in providing the public with 

knowledge about “who is speaking about a candidate shortly before an election,” Citizens United, 

558 U.S. at 369, that interest only applies to speech that is unambiguously related to a campaign.

Buckley, 424 U.S. at 66-67. The Institute’s proposed ad does nothing more than ask for citizens to 

encourage their U.S. senators—one of whom was not even a candidate—to take official action. It 

is not “unambiguously campaign related.” Buckley, 424 U.S. at 81. No Supreme Court case, even 

McConnell v. FEC, 540 U.S. 93 (2003) or Citizens United, has upheld donor disclosure for genuine 

issue speech of this type.

Second, the Institute is a § 501(c)(3) organization carrying out traditional and lawful § 

501(c)(3) activity. Unlike Citizens United which, as was its right, was actively seeking to prevent 

Hillary Clinton from being nominated by the Democratic Party as a candidate in 2008 and speaking 

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“pejorative[ly]” about her to that end, the Institute’s genuine issue ad takes no position—even by 

hint or implication—on the “character, qualifications, or fitness for office” of either Senator Udall 

or Senator Bennet. Citizens United, 558 U.S. at 320; WRTL II, 551 U.S. at 470 (Roberts, C.J., 

controlling opinion). Since § 501(c)(3) organizations are prohibited from candidate advocacy, the 

government’s interest in the identity of donors to such groups is minimal or nonexistent. Both 

Congress and the courts have recognized that § 501(c)(3) organizations occupy a special place in 

civil society’s firmament, and have structured the law to protect § 501(c)(3) donors from 

publication. That BCRA applies against a lawful § 501(c)(3) communication demonstrates its 

overbreadth.

Protecting the Institute’s genuine issue speech from triggering registration and disclosure 

will not upset or upend the ordinary enforcement of the campaign finance laws. BCRA’s 

electioneering communication definition contains a “backup” definition drafted by Congress in the 

event of a case such as this one. That definition captures speech that promotes, attacks, supports, 

or opposes particular candidates for office—a standard that has already been approved by the 

Supreme Court.

Put simply, the Institute ought to be free to educate the public about public policy without 

having to violate the privacy of private citizens, and it should not have to adopt the burdens of 

federal disclosure as an entity making “electioneering communications” when it does not 

“electioneer,” especially where—as a § 501(c)(3) charity—it is prohibited from doing so.

Argument

I. BCRA imposes burdensome disclosure and reporting requirements.

BCRA defines electioneering communications as “any broadcast, cable, or satellite 

communication” that “refers to a clearly identified candidate for Federal office” and is made either 

within 60 days of a general election or 30 days before a primary election. 52 U.S.C. § 

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30104(f)(3)(A)(i)(I)-(II). The ad must also be “targeted to the relevant electorate,” 52 U.S.C. 

§ 30104(f)(3)(A)(i)(III), meaning in practice that it “can be received by 50,000 or more persons” 

in the relevant jurisdiction. 52 U.S.C. § 30104(f)(3)(C).

Once triggered, BCRA’s electioneering communication disclosure system is burdensome: 

the law forces speakers, whether they are individuals, organizations, unions, or any other type of 

group, to reveal the names and addresses of donors who give $1,000 or more. 52 U.S.C. 

§§ 30101(11), 30104(f)(2)(E), and 30104(f)(2)(F).3 Such as yoke is heavy for most organizations 

 

3 The report requires the name and address of anyone who gives more than $1,000 for an 

electioneering communication—if the funds to pay for the electioneering communication came 

out of a special, segregated account described in 52 U.S.C. § 30104(f)(2)(E). But if the funds used 

to pay for the electioneering communication came from an account not described in 52 U.S.C. 

§ 30104(f)(2)(E), then “the names and addresses of all contributors who contributed an aggregate 

amount of $1,000 or more to the person” must be disclosed. 52 U.S.C. § 30104(f)(2)(F) (emphasis 

added). 

While the FEC has interpreted BCRA disclosure under 52 U.S.C. § 30104(f)(2)(E) as limited to 

donations earmarked for electioneering communications, 11 C.F.R. § 104.20(c)(9), the status of 

the earmarking regulation is uncertain and unreliable because of the Commission’s refusal to 

defend it. The Commission failed to appeal when the district court in Van Hollen v. FEC, 851 F. 

Supp. 2d 69, 89 (D.D.C. 2012), struck it down, and the regulation was saved temporarily when the 

D.C. Circuit ruled for intervenors and ordered that the FEC consider a proposed rulemaking to 

clarify the justification of the rule or that the district court—absent a new rulemaking—perform a 

Chevron step two analysis, Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108, 110, 112

(D.C. Cir. 2012). The FEC failed to perform a rulemaking to save the rule, and the district court 

held that the rule did not survive Chevron step two and was arbitrary and capricious. Van Hollen 

v. FEC, 74 F. Supp. 3d 407, 413, 435 (D.D.C. 2014). The D.C. Circuit again overruled the district 

court, holding that the rule survived Chevron and was not arbitrary and capricious, Van Hollen v. 

FEC, 811 F.3d 486, 488-89 (D.C. Cir. 2016), but Rep. Van Hollen is now seeking en banc review, 

see Van Hollen v. FEC, Nos. 15-5016 & 15-5017, Appellee Pet. for Rehearing En Banc, (D.C. Cir. 

Mar 4, 2016) (Doc. No. 1602481).

Here, both the FEC and amici have relied, in part, on this regulation in asserting that BCRA is 

properly tailored. FEC Opp. to Mot. for Prelim. Inj.at 7-8 (ECF 19); id. at 33-34; see also

Campaign Legal Center, et al. Amici Curiae Br. in Opp. to Mot. for Prelim. Inj. at 23-24 (ECF 21).

But amici assert that “the statute itself does not limit donor disclosure to earmarked contributions.” 

Amici Br. at 24. Thus this case requires proper analysis of BCRA’s tailoring to the facts of this asapplied challenge. 

At the very best, if it stays in effect, 11 C.F.R. § 104.20(c)(9) would lessen the impact of BCRA 

on the Institute, though mandated reporting and the disclosure of any donor to a 501(c)(3) is 

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to bear. Cf. Citizens United, 558 U.S. at 354 (recognizing that most organizations to which such 

regulations apply are small). It is particularly pernicious to the subset of § 501(c)(3) organizations, 

however, whose donors are usually protected from public disclosure by case law and the Internal 

Revenue Code. 26 U.S.C. § 6104(b). 

Moreover, once an organization has hit the trigger of spending more than $10,000 on 

qualifying communications, 52 U.S.C. § 30104(f)(1), the organization must file its report within 

approximately 24 hours of the disbursement of funds. 52 U.S.C. § 30104(f)(1); 52 U.S.C. 

§ 30104(f)(4) (defining “disclosure date” as “the first date during any calendar year by which a 

person has made [qualifying] disbursements for . . . electioneering communications . . . ; and any 

other date during such calendar year by which a person has made [qualifying] disbursements for 

. . . electioneering communications . . . since the most recent disclosure date for such calendar 

year”); but see 11 C.F.R. § 104.20(b) (“[e]very person who has made an electioneering 

communication, as defined in 11 C.F.R. 100.29 . . . shall file a statement with the Commission by 

11:59 p.m. Eastern Standard/Daylight Time on the day following the disclosure date”).

Thus, the Independence Institute is left with an unconstitutional choice: either stay silent 

on issues important to its mission or violate the privacy rights of its donors and comply with heavy 

administrative burdens.

 

sufficient harm. Nevertheless, the Commission’s reluctant defense of its own regulations leaves 

an organization facing the very real possibility of being required to disclose all of its donors, should 

it disseminate an electioneering communication. In that event, the Institute believes the harm to it 

and its donors would necessarily increase, and the relevant exacting scrutiny analysis tilt even 

further in its direction. It preserves that and related arguments in the event 11 C.F.R. § 104.20(c)(9)

ceases to remain in effect.

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II. The violations of associational privacy and chilling of issue speech imposed by 

BCRA’s compelled disclosure regime require this Court’s exacting scrutiny.

a. Exacting Scrutiny as a Protection for Issue Speech and Associational Privacy

As applied here, BCRA violates two separate but related constitutionally-protected rights: 

donors’ rights to associational privacy and the right to debate public policy and issues. The 

Supreme Court has long limited governmental intrusions on these rights by requiring that such 

intrusions meet exacting scrutiny. That is, as shown by cases extending from NAACP v. Alabama 

to Citizens United, the government must show that such laws serve an important government 

interest and that there be a substantial relation between that interest and the burdens placed on 

citizens’ rights. 

The Supreme Court has noted that “‘there is practically universal agreement that a major 

purpose of [the First] Amendment was to protect the free discussion of governmental affairs.’” 

Buckley, 424 U.S. at 14 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). That is because 

“‘[t]he freedom of speech . . . guaranteed by the Constitution embraces at the least the liberty to 

discuss publicly and truthfully all matters of public concern without previous restraint or fear of 

subsequent punishment.’” WRTL II, 551 U.S. at 469 (Roberts, C.J., controlling opinion) (quoting 

First Nat’l Bank v. Bellotti, 435 U.S. 765, 776 (1978)) (ellipsis in WRTL II, brackets added). These 

principles reflect the “‘national commitment to the principle that debate on public issues should 

be uninhibited, robust, and wide-open.’” Buckley, 424 U.S. at 14 (quoting New York Times Co. v. 

Sullivan, 376 U.S. 254, 270 (1964)).

The Supreme Court has also emphasized that “[e]ffective advocacy of both public and 

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

association,” and that there is a “vital relationship between freedom to associate and privacy in 

one’s associations.” NAACP, 357 U.S. at 460-61, 462.This language recognizes two rights: to 

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engage in debate concerning public policies and issues, and to effectual that right, to associational 

privacy. Furthermore, freedom of association must be protected “not only against heavy-handed 

frontal attack, but also from being stifled by more subtle governmental interference” such as 

registration and disclosure requirements and the attendant sanctions for failing to disclose. Bates 

v. City of Little Rock, 361 U.S. 516, 523 (1960); see also NAACP v. Button, 371 U.S. 415, 433 

(1963) (noting that the freedoms of speech and association are “delicate and vulnerable” to “[t]he 

threat of sanctions [which] may deter their exercise almost as potently as the actual application of 

sanctions”).

In NAACP v. Alabama, the Supreme Court protected the right to privacy of association—

there from disclosure of an organization’s contributors—by subjecting “state action which may 

have the effect of curtailing the freedom to associate . . . to the closest scrutiny.” 357 U.S. at 460-

61; see also id. at 462 (noting that “[i]t is hardly a novel perception that compelled disclosure of 

affiliation with groups engaged in advocacy may constitute a[n] effective . . . restraint on freedom 

of association . . . .”). 

In Buckley v. Valeo, the Supreme Court directly addressed both the associational rights 

discussed in NAACP v. Alabama and the “[d]iscussion of public issues”—now referred to as “issue 

advocacy” or “issue speech.”4424 U.S. at 14. The Court there confronted a statute that “require[d] 

direct disclosure of what an individual or group contributes or spends.” Id. at 75. The Court stated, 

“[i]n considering this provision we must apply the same strict standard of scrutiny, for the right of 

associational privacy developed in NAACP v. Alabama derives from the rights of the 

organization’s members to advocate their personal points of view in the most effective way.” Id.; 

see also id. at 66 (noting “[t]he strict test established by NAACP v. Alabama is necessary because 

 

4

See, e.g., McConnell, 540 U.S. at 190.

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compelled disclosure has the potential for substantially infringing the exercise of First Amendment 

rights”). 

Thus, the Court required that “that the subordinating interests of the State . . . survive 

exacting scrutiny.” Buckley, 424 U.S. at 64 (footnote omitted, collecting cases). And, under 

exacting scrutiny, the Supreme Court “insisted that there be a ‘relevant correlation’ or ‘substantial 

relation’ between the governmental interest and the information to be disclosed.” Id. (quoting 

NAACP, 357 U.S. at 463; Bates, 361 U.S. at 525). 

In the almost 60 years since NAACP v. Alabama and the 40 years since Buckley, the right 

to engage in issue speech and the right to associate—and to associate privately—to more 

effectively debate policies and issues have neither changed nor diminished. Rather, as the Supreme 

Court recently held in Citizens United, laws that burden these fundamental rights must continue to 

meet “‘exacting scrutiny,’ which requires a ‘substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.” 558 U.S. at 366-67 (quoting 

Buckley, 424 U.S. at 64, 66).

b. Under Buckley’s exacting scrutiny, the government’s only legitimate interest 

is informational, and that interest extends only to speech that is 

“unambiguously campaign related.”

As explained in both Buckley and Citizens United, the only interest that the government 

can assert to justify its disclosure requirements is the informational interest. Buckley, 424 U.S. at 

81; Citizens United, 558 U.S. at367. The informational interest does not justify any government 

regulation that provides some information to the government or the public. The informational 

interest is not even an interest in any information about politics or candidates. The government 

tried to obtain such broad information in Buckley, attempting “to achieve ‘total disclosure’ by 

reaching ‘every kind of political activity’ in order to insure that the voters are fully informed and 

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to achieve through publicity the maximum deterrence to corruption and undue influence possible.” 

Id. at 76 (citations omitted). The Buckley Court recognized, however, that these broad aims coupled 

with vague provisions engendered the “potential for encompassing both issue discussion and 

advocacy of a political result,” thus “reach[ing] groups engaged purely in issue discussion.” Id. at 

79.

Rather, in applying exacting scrutiny, the Supreme Court approved only a limited reach for 

the informational interest against which a disclosure regime must be measured: disclosure must 

“increase[] the fund of information concerning those who support the candidates,” thus “defin[ing] 

more of the candidate’s constituencies.” Id. at 81. From the overly broad and vague statute before 

it, the Court constructed a “disclosure requirement [that was] narrowly limited to those situations 

where the information sought has a substantial connection with the governmental interests sought 

to be advanced.” Id. at 81. That is, the Supreme Court limited disclosure to “expenditures for 

communications that expressly advocate the election or defeat of a clearly identified candidate” 

because the government’s informational interest extended only to “spending that is unambiguously 

campaign related,” Id. at 80-81.

This interest and its limited reach has not changed since Buckley, as demonstrated by the 

Supreme Court’s decisions in McConnell and Citizens United. In McConnell, the record was 

replete with examples of “candidate advertisements masquerading as issue ads.” 540 U.S. at 132

(citation and quotation marks omitted). Based on that record, the Court upheld BCRA against a 

facial challenge, concluding that the law targeted the informational interest because it “require[d ] 

organizations to reveal their identities so that the public is able to identify the source of the funding 

behind broadcast advertisements influencing certain elections.” Id. at 196 (quoting McConnell v. 

FEC, 251 F. Supp. 2d 176, 237 (D.D.C. 2003) (op. of Kollar-Kotelly, J.)). 

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Similarly, the Citizens United Court explained that “disclosure could be justified based on 

a governmental interest in ‘provid[ing] the electorate with information’ about the sources of 

election-related spending.” Citizens United, 558 U.S. at 367 (quoting Buckley, 424 U.S. at 66)). 

Then, analyzing BCRA’s disclaimer requirements as-applied to Citizens United’s “pejorative” ads, 

the Court held that the requirements “‘provid[ed] the electorate with information,’ McConnell, 

[540 U.S.] at 196 . . . , and ‘insure[d] that the voters [were] fully informed’ about the person or 

group who is speaking.” Citizens United, 558 U.S. at 368 (citing Buckley, 424 U.S. at 76).

5

The decisions of other federal courts implementing this standard underscore that the 

informational interest extends only to providing information about who is supporting or opposing 

candidates, or about “spending that is unambiguously campaign related.” Buckley, 424 U.S. at 80-

81. For example, in Wisconsin Right to Life, Inc. v. Barland, the Seventh Circuit stated that “[t]o 

protect against an unconstitutional chill on issue advocacy by independent speakers, Buckley held 

that campaign-finance regulation must be precise, clear, and may only extend to speech that is 

‘unambiguously related to the campaign of a particular federal candidate.’” 751 F.3d at 811 

(quoting Buckley, 424 U.S. at 80). The Fourth Circuit used Buckley’s unambiguously campaign 

related standard in finding North Carolina’s “political committee” definition overbroad and vague. 

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 290 (4th Cir. 2008). And, in the words of the Tenth 

Circuit, “[i]n Buckley, the Court held that the reporting and disclosure requirements...survived 

‘exacting scrutiny’ so long as they were construed to reach only that speech which is 

 

5 Of course, the Institute is “providing the electorate with information”—its proposed ad contains 

precisely the disclaimer discussed here by the Court and mandated by BCRA, and clearly identifies 

the Institute as the speaker. This case asks whether the addition of a filed report providing donor 

information provides the electorate with additional information sufficiently valuable to justify the 

imposition on the Institute’s rights.

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‘unambiguously campaigned related.’” N.M. Youth Organized v. Herrera, 611 F.3d 669, 676 (10th 

Cir. 2010) (citing 424 U.S. at 79-81).6

Other district courts have applied the “unambiguously campaign related” standard in 

various contexts. In examining the federal disclosure regime, the Eastern District of Louisiana 

upheld federal campaign fund coordination regulation by noting that “it is the act of coordination 

that...arguably make a communication ‘unambiguously campaign related.’” Cao v. FEC, 688 F. 

Supp. 2d 498, 541 (E.D. La. 2010). Just two years before Cao, the District of Utah noted Buckley’s 

standard in examining a state disclosure regime: “Supreme Court precedent makes clear that 

campaign finance laws may constitutionally regulate only those activities that are unambiguously 

campaign related.” Nat’l Right to Work Legal Def. and Ed. Found. v. Herbert, 581 F. Supp. 2d 

1132, 1144 (D. Utah 2008) (citing Buckley, 424 U.S. at 80). 

* * * 

Exacting scrutiny is “not a loose form of judicial review.” Barland, 751 F.3d at 840. Rather, 

as a “strict test,” Buckley, 424 U.S. at 66, it demands careful review of both the asserted 

governmental interest and whether the law is tailored to that interest, because “[i]n the First 

Amendment context, fit matters.” McCutcheon,134 S. Ct. at 1456. As just discussed, disclosure’s 

intrusions on issue speech and donors’ associational privacy can only be justified by the 

informational interest—by providing information that informs the public about those supporting 

or opposing candidates. As explained below, BCRA as it applies to the Institute’s genuine issue 

speech is not tailored because it lacks the necessary “substantial relation between the disclosure 

 

6 But see Indep. Inst. v. Williams, 812 F.3d 787, 796 (10th Cir. 2016) (holding that mentioning a 

candidate near in time to an election is “deemed sufficiently campaign-related” in as-applied 

challenge to a state electioneering communication provision, which mandated earmarked donor 

disclosure).

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requirement and a sufficiently important governmental interest.” Citizens United, 558 U.S. at 366-

67 (internal citation and quotation marks omitted).

III. BCRA’s electioneering communication reporting and disclosure regime is 

insufficiently tailored as applied to the genuine issue speech of a § 501(c)(3) 

organization.

The Supreme Court has upheld laws forcing disclosure related to traditional electioneering 

activities by the types of groups that do electioneering, but the Supreme Court has never addressed 

disclosure as applied to a group like the Independence Institute, one that is banned from such

activity—indeed, one that can engage in only limited legislative or issue advocacy—because of its 

§ 501(c)(3) status. As the D.C. Circuit recognized after examining the Institute’s claims, “Citizens 

United . . . did not address whether a speaker’s tax status or the nature of the nonprofit organization 

affects the constitutional analysis of BCRA’s disclosure requirement.” Indep. Inst., 816 F.3d at 

116-17; see also id. at 117 (noting that the “FEC cite[d] no precedent from the Supreme Court (or 

any other court)” addressing the constitutionality of disclosure laws to issue speech by § 501(c)(3) 

organizations, much less upholding such laws). 

Section 501(c)(3) organizations are special: they have unique purposes, they are subject to 

unique restrictions, and they have been given unique protections. Thus, the Institute presents a new 

as-applied challenge to BCRA’s electioneering communication regime, because no court has 

addressed the law’s applicability to the circumstances surrounding § 501(c)(3) status. More 

importantly, because of these unique circumstances, the government lacks a sufficiently important 

interest to justify BCRA’s burdens and the threat it poses to the privacy of § 501(c)(3) 

organizations’ donors. 

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a. Congress and the Courts treat § 501(c)(3) organizations differently than § 

501(c)(4) organizations.

Congress created § 501(c)(3) organizations to foster the public good, as “[c]orporations . . . 

organized and operated exclusively for religious, charitable, scientific, . . . literary, or educational 

purposes.” 26 U.S.C. § 501(c)(3). And, in recognition of this, the Supreme Court, Congress, and 

administrative agencies have long treated § 501(c)(3) organizations differently, even from other 

nonprofits. 

Some of these differences were starkly recognized by the Supreme Court in Regan v. 

Taxation with Representation, 461 U.S. 540 (1983). Examining the statutory scheme governing 

§ 501(c)(3) and § 501(c)(4) organizations, the Court noted “two principal differences.” Id. at 543. 

First, donations to § 501(c)(3) organizations are tax-deductible while donations to § 501(c)(4) 

organizations are not: “Taxpayers who contribute to § 501(c)(3) organizations, are permitted by 

[26 U.S.C.] § 170(c)(2) to deduct the amount of their contributions on their federal income tax 

returns, while contributions to § 501(c)(4) organizations are not deductible.” Id. This distinction 

contributes to the other “principal difference” between these types of organizations: § 501(c)(4) 

organizations may engage in unlimited lobbying, while § 501(c)(3) organizations may conduct 

only very limited lobbying. Id.; see also 26 C.F.R. § 1.501(c)(3)-1(a)(3)(i).7 Thus, the Court 

examined how the different subsections of 26 U.S.C. § 501(c) work together to form a holistic 

system for regulating activity. See id. at 544; id. at 553 (Blackmun, J. concurring).

 

7 The § 501(c)(4) organization is conceptualized as a group advocating for certain public policies 

as a means to promote “social welfare.” INTERNAL REVENUE SERVICE, Social Welfare 

Organizations, http://www.irs.gov/Charities-&-Non-Profits/Other-Non-Profits/Social-WelfareOrganizations (last accessed June 16, 2016) (“Seeking legislation germane to the organization’s 

programs is a permissible means of attaining social welfare purposes. Thus, a section 501(c)(4) 

social welfare organization may further its exempt purposes through lobbying as its primary 

activity without jeopardizing its exempt status.”). 

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But the differences recognized by the Supreme Court are accentuated by a number of

others. In addition to the restrictions on lobbying, § 501(c)(3) organizations like the Institute are 

prohibited from engaging in any electioneering activity. That is, they may “not participate . . . or 

intervene in . . . any political campaign,” even by “distributing . . . statements.” 26 U.S.C. 

§ 501(c)(3); see also 26 C.F.R. § 1.501(c)(3)-1(a)(3)(ii). These differences in the permitted 

activities between § 501(c)(3) organizations and 501(c)(4) organizations are great enough that an 

“action organization” can be denied § 501(c)(3) status but still “qualify as a social welfare 

organization under section 501(c)(4).” 26 C.F.R. § 1.501(c)(3)-1(c)(3)(v).8

Furthermore, consistent with these differences in permitted activity, donors to § 501(c)(3) 

organizations are generally offered greater protection than donors to § 501(c)(4) groups. See, e.g., 

26 U.S.C. § 6104(c)(3) (allowing the disclosure by the IRS to state officials of § 501(c)(4) 

returns—which includes donor information—but not of § 501(c)(3) returns). Indeed, the tax code 

specifically protects § 501(c)(3) organizations from the requirement that organizations maintain 

copies of donor lists for public review. 26 U.S.C. § 6104(d)(3)(A) (stating that the public 

inspection “shall not require the disclosure of the name or address of any contributor to the 

organization”). 

The Internal Revenue Service (“IRS”) has also recognized that “[a]n organization may be 

educational even though it advocates a particular position or viewpoint,” 26 C.F.R. § 1.501(c)(3)-

1(d)(3)(i)(b), and the IRS’s tax regulations accordingly make important distinctions between 

 

8

26 U.S.C. § 501(h) creates an optional safe harbor and definition of substantial lobbying activity, 

but it is available only to §501(c)(3) organizations (not §501(c)(4) or other advocacy nonprofits, 

which can engage in as much lobbying as they wish). The Independence Institute elects treatment 

under 26 U.S.C. § 501(h). V. Compl. at 6 ¶ 28 (ECF 1), Statement of Undisputed Facts at 1, ¶ 2.

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policy advocacy—which § 501(c)(3) organizations may do to a limited extent—and candidate 

advocacy, which § 501(c)(4) organizations may do in great measure.9

The IRS regulations specifically allow nonprofit organizations to include “influencing 

legislation” among the purposes stated in their articles of organization and “to make lobbying or 

grass roots expenditures that do not normally exceed” certain amounts. 26 C.F.R. § 1.501(c)(3)-

1(b)(3).10 IRS regulations require some indicia of support or opposition to a candidate to disqualify 

a § 501(c)(3)’s activity as non-exempt.11 In particular, the IRS’s operational test requires that an 

organization “participat[e] or intervene[] directly or indirectly in a political campaign on behalf of 

or in opposition to a candidate.” 26 C.F.R. § 1.501(c)(3)-1(c)(3)(iii) (emphasis added). 

Furthermore, the treatment by the IRS and the FEC of § 501(c)(3) organizations should be 

consistent: Congress specifically ordered the FEC and the IRS to “consult and work together to 

promulgate rules, regulations, and forms which are mutually consistent.” 52 U.S.C. § 30111(f). 

Congress also made sure that BCRA did not change how organizations, including § 501(c)(3) 

 

9 A § 501(c)(4) organization may spend money directly seeking to elect candidates, provided that 

doing so does not become its primary purpose. Compare 26 C.F.R. § 1.501(c)(4)-1(a)(2)(i) (the 

definition of social welfare organizations are those that are “primarily engaged in promoting in 

some way the common good and general welfare of the people of the community”) with 26 C.F.R. 

§ 1.501(c)(4)-1(a)(2)(ii) (“The promotion of social welfare does not include direct or indirect 

participation or intervention in political campaigns on behalf of or in opposition to any candidate 

for public office”). 

10 An organization’s articles of organization can include “the trust instrument, the corporate 

charter, the articles of association, or any other written instrument by which an organization is 

created.” 26 C.F.R. § 1.501 (c)(3)-1(b)(2).

11 See IRS Rev. Rul. 2007-41, 2007-25 I.R.B. 1421 (“Whether an organization is participating or 

intervening, directly or indirectly, in any political campaign on behalf of or in opposition to any 

candidate for public office depends upon all of the facts and circumstances of each case.”). The 

IRS uses seven factors to examine a § 501(c)(3) organization’s communication. Id. at 1424. Even 

when an ad is close-in-time to an election, the IRS may still find it to not be political intervention. 

See, e.g., id. (Situation 14, featuring ad that “ends ‘Call or write Senator C to tell him to vote for 

S. 24.’”)

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organizations, would be treated by the tax code for engaging in political or other activities, stating 

that “[n]othing in this subsection may be construed to establish, modify, or otherwise affect the 

definition of political activities or electioneering activities . . . for purposes of the Internal Revenue 

Code.” 52 U.S.C. § 30104(f)(7). That is, in passing BCRA, Congress did not intend to modify 

what nonprofit organizations were permitted to do under the Internal Revenue Code, and the scope 

of § 501(c)(3) activity—including the ability to occasionally run ads such as the Institute’s—was 

left intact. What is left to decide here is whether the Institute must trade one constitutional right, 

speaking on issues, for another, donor privacy.12

b. Due to the difference in tax status, the work of Citizens United differs 

significantly from the Independence Institute’s proposed ad.

As stated above, the D.C. Circuit recognized what the Institute has argued all along: 

“Citizens United . . . did not address whether a speaker’s tax status or the nature of the nonprofit 

organization affects the constitutional analysis of BCRA’s disclosure requirement.” Indep. Inst., 

816 F.3d at 116; cf. V. Compl. at 20 ¶¶ 91-92 (ECF 1). Nor was the D.C. Circuit aware of any 

other case addressing the issue. Indep. Inst., 816 F.3d at 117. 

 

12 And, consistent with the Congressional mandate to treat 501(c)(3) organizations consistently 

under BCRA and the tax code, the FEC initially recognized the difference between 501(c)(3) and 

other types of speakers in its regulations implementing BCRA by categorically exempting 

§ 501(c)(3) activity. See FEC, Electioneering Communications Explanation and Justification, 67 

Fed. Reg. 65190, 65211 (Oct. 23, 2002) (providing under final rule for 11 C.F.R. § 100.29(c)(6) 

that “[e]lectioneering communication does not include any communication that . . . [i]s paid for 

by any organization operating under section 501(c)(3) of the Internal Revenue Code”) (emphasis 

in original). In exempting 501(c)(3) activity, the commission also noted fears that BCRA would 

effectively prohibit charities from running “public service announcements[,] . . . [d]ocumentaries 

and other educational programming featuring individuals who are candidates.” Id. at 65199 

(internal quotation marks omitted). This Court ultimately held that the FEC had failed to address 

several considerations in its rulemaking and remanded for further action by the Commission on 

the rule. Shays v. FEC, 337 F. Supp. 2d 28, 127-28, 130 (D.D.C. 2004), aff’d by 414 F.3d 76, 96 

(D.C. Cir. 2005). Because the Commission failed to take any such action, the Institute is left 

without an administrative rule protecting its donors, even though it simply wishes to ask 

Coloradoans to urge their senators to support a bill.

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In Citizens United, the Supreme Court examined a politically active § 501(c)(4) 

organization seeking to run pejorative commercial advertisements for a film that opposed Hillary 

Clinton’s candidacy for President. Here, the FEC is painting a § 501(c)(3) educational organization 

with the same brush for seeking to air an advertisement that has nothing to do with any candidacy 

or any election.

While Citizens United, due to its tax status, could engage in speech that functioned as 

advocacy against Senator Clinton, the Independence Institute is barred, by federal law, from 

carrying out any candidate-centered electioneering. Compare 26 U.S.C. § 501(c)(3), with 26 

U.S.C. § 501(c)(4). Citizens United concerned the speech of a § 501(c)(4) organization, which the 

Court noted had been “disclosing its donors for years.” 558 U.S. at 370.13 By contrast, the 

Independence Institute is organized under § 501(c)(3) and, like all such charities, has the right to—

and does—keep its donors private. 

Moreover, consistent with their differences in tax status, what the Institute does is vastly 

different from what Citizens United does. Citizens United actively uses its ability to engage in 

political advocacy, regularly creating films and advertisements about the Democratic Party’s 

candidates. Hillary: The Movie and its ads coincided with Hillary Clinton’s expected candidacy in 

2008. “Four days after Senator Barack Obama won the Iowa presidential caucuses, [Citizens 

United] announced its intent to produce and broadcast a ‘documentary’ film about Senator Obama, 

as well as television advertising for that film.” Citizens United v. FEC, No. 07-2240, FEC Mem. 

of L. in Supp. of Mot. for Summ. J. at 5 (D.D.C. June 6, 2008) (ECF 55).14 And just this last 

 

13 The Citizens United Supreme Court decision does not mention the section of the tax code 

Citizens United was organized under, simply describing the group as “a nonprofit corporation.” 

Id. at 319. The district court opinion described the filmmakers’ nonprofit status as a § 501(c)(4). 

Citizens United v. FEC, 530 F. Supp. 2d 274, 275 (D.D.C. 2008) (three judge-court). 

14 Available at http://fec.gov/law/litigation/citizens_united_fec_motion_sj.pdf.

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election cycle, Citizens United created Rocky Mountain Heist, a film that “unambiguously 

refer[red] to elected Colorado officials running for office [and] include[d] footage . . . where 

participants advocate[d] the election or defeat of Colorado candidates.” Citizens United v. 

Gessler, 773 F.3d 200, 202 (10th Cir. 2014) (emphasis added). 

By contrast, since it was established on May 31, 1985, V. Compl. ¶ 18, Statement of 

Undisputed Facts at 1, ¶ 1, the Institute has been a § 501(c)(3) educational organization. As such, 

it may “present[] public discussion groups, forums, panels, lectures, or other similar programs.” 

26 C.F.R. § 1.501(c)(3)-1(d)(3)(ii). Moreover, as part of its educational mission, the Institute may 

“advocate[] a particular position or viewpoint so long as it presents a sufficiently full and fair 

exposition of the pertinent facts.” 26 C.F.R. § 1.501(c)(3)-1(d)(3)(i)(b). Furthermore, it may 

“advocate[] . . . the adoption or rejection of legislation,” as long as such advocacy is “an 

insubstantial part of its activities.” 26 C.F.R. § 1.501(c)(3)-1(c)(3)(ii)(b).15 But it may not 

“intervene[]...in a political campaign on behalf of or in opposition to a candidate.” 26 C.F.R. 

1.501(c)(3)-1(c)(3)(iii). Indeed, if it the Institute were to engage in any such campaign advocacy, 

or in anything beyond the insubstantial lobbying permitted under § 501(h), it would lose its 

§ 501(c)(3) status and be prohibited from becoming even a § 501(c)(4) organization. See 26 U.S.C. 

§ 504(a). 

 

15 The IRS tests whether such advocacy is an insubstantial part of an organization’s activities using 

“the expenditure test election of section 501(h).” 26 C.F.R. 1.501(c)(3)-1(c)(3)(ii)(b). Under 

§ 501(h), overall, advocacy is capped with a formula based on 20% of the organization’s 

expenditures. 26 U.S.C. § 501(h)(2)(B); cf. 26 U.S.C. § 4911(c)(2) (setting thresholds). For the 

Institute’s proposed ad, spending is capped further: it can be only 25% of overall advocacy. 26 

U.S.C. § 501(h)(2)(D); cf 26 U.S.C. § 4911(c)(4). An organization meets the requirements for a § 

501(c)(3) organization as long as “it is not denied exemption from taxation under section 501(a) 

by reason of section 501(h).” 26 C.F.R. 1.501(c)(3)-1(c)(3)(ii)(b). The Institute elects treatment 

under § 501(h). V. Compl. ¶ 28, Statement of Undisputed Facts at 1, ¶ 2. 

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Moreover, the ad at issue here is consistent with the Institute’s educational mission and 

permitted activity. It simply explains the problems with current federal sentencing laws, notes that 

there was a bill before Congress to fix those problems, and asks listeners to call their senators to 

ask them to support the bill. V. Compl. ¶ 35, Statement of Undisputed Facts at 1-2, ¶ 5. The ad 

says nothing about the Senators’ positions on the bill, or about their positions on anything. It takes 

no position—even by hint or implication—on the “character, qualifications, or fitness for office” 

of either Senator Udall or Senator Bennet. WRTL II, 551 U.S. at 470 (Roberts, C.J., controlling 

opinion). It does not even mention an election, candidacy, or political party. The ad is thus “plainly 

not the functional equivalent of express advocacy” that only a § 501(c)(4) organization like 

Citizens United may engage in, nor is it “unambiguously campaign related.” Id.; Buckley, 424 U.S. 

at 81. Rather, the ad focuses solely on the merits of a legislative issue—encouraging the passage 

of the Justice Safety Valve Act—and even then must be confined within the limited lobbying 

activity allowed to § 501(c)(3) organizations under 26 U.S.C. § 501(h). 

Nevertheless, the FEC maintains that it may constitutionally compel the Institute to register 

with the Commission and disclose its donors. But this cannot be the law: as the civil rights cases 

of the 1950s and 1960s discussed above amply demonstrate, donors have privacy rights, and the 

harm to the privacy rights of donors to a nonpolitical, nonprofit organization through disclosure 

can be particularly troublesome. Moreover, where, as here, a nonprofit is prohibited from any 

candidate advocacy and restricted to only limited lobbying, the government has a minimal or 

nonexistent interest in the donors’ identity and contributions—such disclosure tells the public 

nothing about who is supporting or opposing candidates. Thus, the Institute’s 26 U.S.C. § 501(c)(3) 

status, and its speech consistent with that status, demonstrates the excessive breadth of BCRA’s 

disclosure regime as-applied, and is thus far from “immaterial.”

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Similarly, because § 501(c)(3) organizations are prohibited from electioneering, labeling 

their genuine issue speech as an “electioneering communication”—in addition to misleading the 

public in contravention of the informational interest—will invite legal risk and reputational harm. 

Those disagreeing with a § 501(c)(3), and especially laypersons for whom any metaphysical 

difference between an “electioneering communication” and “intervention in a campaign” will be 

incomprehensible, may file complaints with the IRS and regulators that will be expensive to 

defend, both in terms of attorney time and the potential harm to fundraising efforts.16 And even 

allies will doubtless be confused by the nonsensical labeling the FEC attempts here. Moreover, the 

need to file reports, and prepare the internal procedures to do so accurately, is itself an independent 

harm that is especially dangerous for § 501(c)(3)s, which would be asked to file electioneering 

communications reports while simultaneously reporting to the IRS that, consistent with their 

status, they do not engage in electioneering—a process that is costly in its own right and could 

easily lead to confusion.17

 

16 For example, this Court is hearing several challenges from Citizens for Responsibility and Ethics 

in Washington (“CREW”) alleging the FEC failed to bring enforcement actions against instances 

of unreported “electioneering communications.” See, e.g., CREW et al. v. FEC, No. 15-2038, 

Compl. (D.D.C. Nov. 23, 2015) (ECF 1). The Independence Institute itself has been subject to 

such complaints, Indep. Inst. v. Coffman, 209 P.3d 1130, 1134 (Colo. Ct. App. 2008), but was 

vindicated before the administrative law judge that its activity did not qualify it as “an “issue 

committee” under Colorado campaign finance law. Id. 

17 CREW recently filed—with the FBI, Department of Justice, and IRS simultaneously—

complaints against ten organizations alleging violations of the campaign finance laws. One 

complaint seeks felony charges for an asserted failure to report “political activity” (as defined and 

alleged by CREW) on Schedule C of IRS Form 990. CREW, Complaints Against American Dream 

Initiative, Arizona Future Fund, Jobs and Progress Fund, Inc., Michigan Citizens for Fiscal 

Responsibility, Mid America Fund, Inc., and Rule of Law Project, at 4 (June 15, 2016), available 

at http://www.citizensforethics.org/page/-/PDFs/Omnibus%20DOJ%20complaint%206-15-

16.pdf. The IRS complaints are gathered on CREW’s website. CREW, Press: “CREW Files 

Criminal, IRS Complaints Against 10 Dark Money Groups.” 

http://www.citizensforethics.org/press/entry/crew-files-criminal-irs-complaints-against-10-darkmoney-groups. 

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The Institute accordingly notes that BCRA imposes unique burdens upon § 501(c)(3) 

organizations, including demanding donor disclosure, a special harm recognized by the courts and 

Congress. This affects the required constitutional analysis, and further distinguishes this case from 

Citizens United, which involved a § 501(c)(4) organization that already disclosed the donors 

responsible for its political messaging. A new tailoring analysis is accordingly required for this asapplied challenge, and under that analysis BCRA is unconstitutional.

IV. BCRA’s electioneering communications definition and disclosure regulations 

unconstitutionally burden the rights of the Independence Institute and its 

supporters to freedom of speech and association.

a. The Supreme Court has consistently required that burdens on issue speech 

meet the tailoring requirements of exacting scrutiny, a trend that extends to 

Citizens United.

The Supreme Court has never, in any case actually dealing with genuine issue speech, 

upheld a choking regulation on such speech. See, e.g., WRTL II, 551 U.S. at 476 (Roberts, C.J., 

controlling opinion). The government’s interests have been too slight or the burdens of the law on 

fundamental rights too great to pass constitutional scrutiny. As previously noted, the First 

Amendment protects the right of Americans “to pursue their lawful private interests privately and 

to associate freely with others in so doing.” NAACP v. Ala., 357 U.S. at 466. The Supreme Court 

has long held that “‘[e]ffective advocacy of both public and private points of view, particularly 

controversial ones, is undeniably enhanced by group association.” Id. at 460. Indeed, 

“[i]nviolability of privacy in group association may in many circumstances be indispensable to 

preservation of freedom of association,” id. at 462, and compelled disclosure thus imposes too 

“significant [an] encroachment upon personal liberty,” Bates, 361 U.S. at 524. See also Buckley, 

424 U.S. at 66 (holding that “compelled disclosure has the potential for substantially infringing 

the exercise of First Amendment rights”). 

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Accordingly, the Supreme Court has consistently required that the government 

demonstrate precisely why the associational veil ought to be pierced, and to narrowly confine 

compelled disclosure to an important governmental purpose. See, e.g., Bates, 361 U.S. at 524

(“Decision in this case must finally turn, therefore, on whether the cities as instrumentalities of the 

State have demonstrated 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”).

It is true that the Supreme Court has said “that disclosure is a less restrictive alternative to 

more comprehensive regulations of speech.” Citizens United, 558 U.S. at 369. It is also true that 

the Citizens United court rejected the application of WRTL’s express advocacy limitation as 

applied to Citizen United’s advocacy. See id at 368-69. But, as the following shows, there is a 

basic principle harmonizing the Supreme Court’s issue speech jurisprudence: “Because First 

Amendment freedoms need breathing space to survive, government may regulate in the area only 

with narrow specificity.” Buckley, 424 U.S. at 41 n.48 (quoting NAACP v. Button, 371 U.S. 415, 

433 (1963)). And to effectuate that principle while recognizing the government’s interests, longstanding and continuing precedent requires that any government regulation infringing on that 

fundamental right must be substantially related to “a sufficiently important governmental interest.” 

See Citizens United, 588 U.S. at 366-67 (internal quotation marks omitted). Thus, it does not matter 

that another type of burden is greater than the one at issue or that the burden at issue was 

sufficiently tailored when measured against another type of speech. Those may be relevant 

considerations, but what the government must prove is that the burden it is imposing on a particular 

type of speech is actually sustained by a related, and important, interest. Consideration of Buckley, 

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McConnell, WRTL II, and Citizens United shows that BCRA, as applied to the Institute’s issue 

speech, does not meet exacting scrutiny.18

When dealing with important First Amendment freedoms for which it is hard to distinguish 

the boundary between protected speech and permissibly regulated speech, it is the government’s 

interest that must bow to the First Amendment. See WRTL II, 551 U.S. at 457 (holding that “the 

First Amendment requires us to err on the side of protecting political speech rather than 

suppressing it”). For example, the Buckley court noted that “the distinction between discussion of 

issues and candidates and advocacy of election or defeat of candidates may often dissolve in 

practical application.” Buckley, 424 U.S. at 42; see also Citizens United, 558 U.S. at 358; WRTL 

II, 551 U.S. at 456. Accordingly, weighing both issue speech and advocacy against the public’s 

interest in knowing who supports or opposes a candidate, the Court held that the government could 

not regulate a very large subset of advocacy. That is, it restricted the law at issue to controlling 

only “communications that include explicit words of advocacy of election or defeat of a 

candidate.” Buckley, 424 U.S. at 43. Any other rule then apparent to the Court would have stifled 

speech that had no relation to informing the public about a candidate’s constituency. In other 

words, under any other rule, the law then before the Court would have failed exacting scrutiny. 

 

18 Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en banc), remains one of the most directly 

relevant Court of Appeals cases. The statute at issue there, 2 U.S.C. § 437a (the only portion of 

the Buckley challenge not to make its way to the Supreme Court, Buckley, 424 U.S. at 10 n.7), 

similarly triggered disclosure for publications “or broadcasts [of] any material referring to a 

candidate,” which included “setting forth the candidate’s position on any public issue.” 519 F.2d 

at 869-70. In fact, FECA § 437a explicitly sought the same scope of government power that the 

Commission claims here: namely, the right to regulate any speech, regardless of whether that 

speech advocates an election result or is related to a political campaign, or if it instead merely 

mentions a candidate in relation to “any public issue.” Id. In response, the D.C. Circuit determined 

that imposing disclosure requirements upon communicators for “tak[ing] public stands on public 

issues” was impermissible under the First Amendment because, when compared to campaignrelated speech, “the nexus” between issue speech and any cognizable governmental interest “may 

be far more tenuous.” Buckley, 519 F.2d at 872

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Courts interpreted Buckley as holding that a law was not tailored unless it included certain 

magic words of express advocacy, and eventually “[c]orporations and unions [were spending] 

hundreds of millions of dollars” to pay for ads that were clearly express advocacy but could not be 

regulated as such because they “eschewed the use of [those] magic words.” McConnell, 540 U.S. 

at 126-27. To advocate for a candidate’s defeat, for example, an ad would “condemn[] Jane Doe’s 

record on a particular issue before exhorting viewers to ‘call Jane Doe and tell her what you 

think.’” Id. at 127. 

Accordingly, Congress passed BCRA to close these loopholes and effectively regulate 

what had always been obvious attempts to elect or defeat particular candidates—that is, depending 

on the specific communication, either express advocacy or something very like it. And, based on 

what the Supreme Court called a “voluminous record” showing such abuse of the magic words 

test, McConnell, 540 U.S. at 132, the Supreme Court upheld BCRA against a facial challenge, to 

the extent that the law was tailored to speech that “was the ‘functional equivalent’ of express 

campaign speech.” WRTL II, 551 U.S. at 456 (quoting McConnell, 540 U.S. at 204-205, 206). The 

McConnell court, however, noted that different interests apply to the regulation of campaign 

speech and “the regulation of genuine issue ads.” 540 U.S. at 206 n.88; see also WRTL II, 551 U.S. 

at 456. Thus, based on that principle, a court must perform a different scrutiny analysis when 

dealing with issue speech than when dealing with campaign speech, i.e., the law at issue must be 

substantially related to the different interests implicated by campaign and issue speech. 

In WRTL II, the plaintiffs mounted an as-applied challenge to the same provision of BCRA, 

arguing that it was unconstitutional as applied to speech that was not the functional equivalent of 

express advocacy. WRTL II, 551 U.S. at 456. The FEC, on the other hand, “perversely” argued 

that it should be able to regulate even genuine issue ads because such ads are “more likely . . . to 

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be the functional equivalent of express advocacy.” 551 U.S. at 471 (Roberts, C.J., controlling 

opinion). The Supreme Court rejected the FEC’s contention, holding that “[i]t would effectively 

eliminate First Amendment protection for genuine issue ads” in as-applied challenges. Id. 

(emphasis in original).19 The Supreme Court further “conclude[d] that the interests held to justify 

restricting corporate campaign speech or its functional equivalent do not justify restricting issue 

advocacy,” id. at 457, i.e., that the law was not tailored to the government’s interests.20 Notably, 

the Court did not state that there is a bright-line distinction between issue speech and electoral 

advocacy prohibiting any type of regulation of issue speech or quasi-issue speech. It did, 

however—in describing the scope of its “functional equivalent of express advocacy” test—explain 

that a genuine issue ad would “focus on a legislative issue, take a position on the issue, exhort the 

public to adopt that position, and urge the public to contact public officials with respect to the 

matter.” Id. at 469-70. And it held that different governmental interests apply to express advocacy 

and genuine issue speech. Applying those different interests to the BCRA provision at issue there, 

the provision failed constitutional scrutiny. Id. at 457. 

Some courts have sensed a discordant theme in Citizens United, the Supreme Court’s next 

case to deal with campaign finance issues. But that case did not deal with the genuine issue ads 

identified by the WRTL II Court. Rather, it principally addressed Hillary: The Movie, although 

advertisements promoting the movie were carried along in the decision’s slipstream. As the Court 

stated, “The movie, in essence, [was] a feature-length negative advertisement that urges viewers 

 

19 The Supreme Court also rejected the District Court’s conclusion “that the reasoning of the 

McConnell Court leaves no room for” an as-applied challenge. WRTL II, 551 U.S. at 460 (internal 

quotation marks omitted). 

20 The Supreme Court then applied this broad holding on restrictions of corporate speech to the 

narrower issue of corporate speech bans and found the latter unconstitutional. WRTL II, 551 U.S. 

at 457.

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to vote against Senator Clinton for President.” 558 U.S. at 325. The Court noted that “[t]he movie 

concentrate[d] on alleged wrongdoing during the Clinton administration, Senator Clinton’s 

qualifications and fitness for office, and policies . . . she would pursue.” Id. And it called her 

“Machiavellian” and played on Americans’ dislike of “dynasties.” Id. Accordingly, the Supreme 

Court held that “there is no reasonable interpretation of Hillary other than as an appeal to vote 

against Senator Clinton,” such that it qualified under the McConnell and WRTL standard “as the 

functional equivalent of express advocacy.” Citizens United, 558 U.S. at 326. 

Included in the Court’s decision were “two 10-second ads and one 30-second ad for 

Hillary.” Id. at 320. According to the Court, “[e]ach ad include[d] a short (and, in [the Court’s] 

view, pejorative) statement about Senator Clinton, followed by the name of the movie.” Id. In the 

first ad, Hillary Clinton’s face was placed on the screen with the narration, “If you thought you 

knew everything about Hillary Clinton . . . wait ‘til you see the movie.” Citizens United v. FEC, 

530 F. Supp. 2d 274, 276 n.2 (D.D.C. 2008). In the second ad, Hillary Clinton’s face was placed 

on the screen with the narration, “‘First, a kind word about Hillary Clinton . . . She looks good in 

a pant suit.’ ‘Now, a movie about the everything else.’” Id. at n.3. The third ad stated, “‘Who is 

Hillary Clinton?’ . . . ‘[A]t least with Bill Clinton he was just a good time Charlie. Hillary’s got an 

agenda . . .’ . . . ‘Hillary is the closest thing we have in America to a European socialist . . .’ ‘If 

you thought you knew everything about Hillary Clinton . . . wait ‘til you see the movie.’” Id. at 

n.4. 

In resolving the as-applied challenge before it, the Supreme Court upheld BCRA’s 

disclosure requirements as against these “pejorative” equivalents of express advocacy. Citizens 

United, 558 U.S. at 368-69. The Supreme Court rejected any protection from WRTL II’s express 

advocacy limitation, as applied to Citizens United’s campaign advocacy, although it did so with 

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broader language, stating that it “reject[ed] Citizens United’s contention that the disclosure 

requirements must be limited to speech that is the functional equivalent of express advocacy.” Id. 

at 369. 

That holding is unsurprising, however. It does not mean that issue speech suddenly lost the 

importance and constitutional protection it has held for 60 years. The statement there simply 

manifests a facet of the Supreme Court’s issue speech jurisprudence since Buckley: there are few 

bright line rules regarding issue speech and campaign advocacy because the two are hard to 

distinguish. Accordingly, a Court must look at what the speech at issue communicates about 

candidates, the government’s interest, and the fit. A bright line distinction made no sense as applied 

to the pejorative advocacy at issue in Citizens United. 

That this is what the Citizens United court meant is indicated by its subsequent discussion 

of the informational interest. The Court held that the informational interest applied to Citizens 

United’s “pejorative” ads because “the public has an interest in knowing who is speaking about a 

candidate shortly before an election.” Id. at 368-69. Such “disclosure helps voters to define more 

of the candidates’ constituencies,” Buckley, 424 U.S. at 81, such that voters can “place each 

candidate in the political spectrum more precisely,” id. at 67. This interest applied to the pejorative 

ads at issue in Citizens United because the ads were attempting to sway public opinion about 

Hillary Clinton’s fitness to be president and knowing who supported the ads would help voters 

understand Hillary Clinton’s place on the political spectrum. 

A broader understanding of Citizens United’s statement about issue speech and express 

advocacy would not fulfill this interest, however: if speech contains no hint of advocacy about a 

particular candidacy, then understanding who is speaking will not inform voters about a 

candidate’s constituency. Disclosure under a broader understanding of the holding would only 

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confuse voters and make their evaluations of candidates’ positions on the political spectrum less 

precise, because they would be attributing support or opposition to candidates from people who 

were not supporting or opposing candidates in their speech.21 

Accordingly, Buckley, McConnell, WRTL II, and Citizens United together form a 

harmonious whole: While courts do not—because of the difficulty in distinguishing issue speech 

from express advocacy—automatically exclude speech from any regulation merely because it is 

issue-oriented, they must examine the different interests that apply to issue speech and candidate 

advocacy and analyze how those different interests apply to the speech and state-imposed burdens 

presented in particular, as-applied cases. See WRTL II, 449 U.S. at 476 (analyzing tailoring); id. at 

478 (interest supporting each application).

b. WRTL II and Citizens United show that the government has only a limited 

interest.

While neither WRTL II nor Citizens United are directly on point here, as WRTL II dealt 

with an as-applied challenge to BCRA’s ban on issue advocacy by corporations and Citizens 

United dealt with a challenge to BCRA’s disclosure burdens in the context of pejorative speech 

functioning as express advocacy, they are nonetheless informative in how the Supreme Court 

weighed the government’s interest in the exacting scrutiny analysis. 

 

21 Furthermore, a broader understanding of Citizens United’s statement about express advocacy is 

belied by the Court’s discussion of the press. The Court stated, “There is no precedent supporting 

laws that attempt to distinguish between corporations which are deemed to be exempt as media 

corporations and those which are not. We have consistently rejected the proposition that the 

institutional press has any constitutional privilege beyond that of other speakers.” Citizens United, 

558 U.S. at 352 (internal quotation marks omitted). But, if the public had an interest in knowing 

about anyone speaking about a candidate for any purpose whatsoever, including genuine issue 

speech and news stories, either the press should be subject to disclosure requirements any time it 

mentions a candidate, or BCRA has created an unconstitutional distinction between the media and 

other parties. See Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (“The liberty of the press is 

not confined to newspapers and periodicals. . . . The press in its historic connotation comprehends 

every sort of publication which affords a vehicle of information and opinion.”).

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The radio ad at issue here explains problems with the current federal sentencing laws, notes 

a bill presently before Congress to fix the problems, and asks listeners to call their senators—Mark 

Udall and Michael Bennet—and tell them to support the bill. V. Compl. at 7-8 ¶ 35 (ECF No. 1); 

cf. WRTL II, 551 U.S. at 470. The ad says nothing about the Senators’ positions on the bill, or even 

about their positions on criminal matters in general, that would cause the listeners to judge the 

senators, either positively or negatively. Cf. WRTL II, 551 U.S. at 470. But because the ad identifies 

Colorado’s senators, in a year when one is seeking reelection, the ad triggers BCRA’s regulation 

of speech. In short, BCRA treats the Institute’s ad as if it were campaign related, like the movie 

and ads in Citizens United. 

The ads and movie at issue in Citizens United were pejorative and the functional equivalent 

of express advocacy. 558 U.S. at 320 (“Each ad includes a short (and, in our view, pejorative) 

statement about Senator Clinton . . . ”); id. at 368 (“The ads . . . contained pejorative references 

to [Clinton’s] candidacy”) (emphasis added); id. at 325 (“Hillary is equivalent to express 

advocacy”). They did not discuss any important public issues pending before Congress, where 

Hillary Clinton then sat as Senator, seeking help to get her to take a position on an issue. They 

were not exclusively directed to the citizens Hillary Clinton then represented as Senator, whose 

views and interests she would want to know and represent before the Senate. The ads did not even 

ask those she represented to call her regarding some issue. Citizens United, 530 F.Supp. 2d at 276 

nn. 2-4. Rather, the movie and ads were meant for a nationwide audience, one that was only 

relevant in the context of a future campaign for president. The ads were intended to elicit a 

judgment about Sen. Clinton’s fitness to be president as someone (in Citizens United’s view) 

whose background was filled with hidden skeletons and scandal, someone with no positive 

attributes other than her appearance in a suit, and someone who was a socialist with an agenda 

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adverse to the public interest. Id. These communications were the functional equivalent of express 

advocacy, and certainly related to Senator Clinton’s candidacy, and thus utterly unlike the ad at 

issue here.22

Independence Institute’s ad, by contrast, is more similar to those in WRTL II, for which the 

government had at most a minimal interest. Each ad in WRTL II began with someone’s life being 

interrupted in some way—a wedding ceremony where the bride’s father began talking about 

drywall, a loan application interview where the loan officer began talking about childhood fishing 

trips, and a judicial nominee waiting at home with nothing to do. WRTL II, 551 U.S. at 458-59, 

459 n.2, 459 n.3. The ads then accused the members of the Senate of causing gridlock and a state 

of emergency in the courts because of the filibuster. Id. The ads finally asked listeners to contact 

Senators Feingold and Kohl to oppose the filibuster. Id. 

Thus, like the ad at issue here, the content of the ads was “consistent with that of a genuine 

issue ad” because they “focus[ed] on a legislative issue, [took] a position on the issue, exhort[ed] 

 

22 To the extent they did not function as express advocacy, the Citizen United ads were commercial 

speech to advertise for the movie Hillary. Citizens United, 530 F. Supp. 2d at 280 (discussing 

commercial nature of the ads urging people to “buy the DVD of The Movie”). The Supreme Court 

has long held that commercial speech can be more heavily regulated than issue speech. See, e.g., 

Williams, 553 U.S. at 298 (noting that the “First Amendment status of commercial speech” is “less 

privileged” than other forms of speech); Cent. Hudson Gas & Elec., 447 U.S. at 562-563 (“The 

Constitution therefore accords a lesser protection to commercial speech than to other 

constitutionally guaranteed expression.”). In fact, the government may compel speech in the 

commercial context in a way it cannot for discussions of public policy. Am. Meat Inst. v. United 

States Dep’t of Agric., 760 F.3d 18, 31 (D.C. Cir. 2014) (“The Government has long required 

commercial disclosures to prevent consumer deception or to ensure consumer health or safety.”);

see also R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1211 (D.C. Cir. 2012), overruled on 

other grounds, as recognized by Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518, 520 (D.C. Cir. 2015)

(noting that there was no dispute about Congress’s authority to require health warnings on cigarette 

packages).

Thus, to the extent that the Citizens United Court relied upon the commercial nature of the Hillary 

advertisements—as opposed to finding that the ads were advocacy against a candidacy—this 

supports the Institute’s point that Citizens United does not control the tailoring analysis for this 

case.

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the public to adopt that position, and urge[d] the public to contact public officials with respect to 

the matter.” Id. at 470 (Roberts, C.J., controlling opinion). And, again like the ad at issue here, the 

ads “lack[ed] indicia of express advocacy” because “they [did] not take a position on a candidate’s 

character, qualifications, or fitness for office.” Id. 

Based on this record, the Supreme Court held that the ads—like those at issue here—were 

“plainly not the functional equivalent of express advocacy.” Id. at 470. And, lacking any sufficient 

interest to justify the burdens on speech at issue there, the Supreme Court found the application of 

the regulation to the ads unconstitutional. Id. at 481.

In sum, the ads at issue here and in Citizens United are too dissimilar for the Supreme 

Court’s reasoning and ruling there—as applied to pejorative expressive advocacy or its 

equivalent—to apply to the as-applied challenge here regarding genuine issue speech.23 Rather, 

the speech here is even more “plainly not the functional equivalent of express advocacy” than the 

ads at issue in WRTL II, id. at 470—because the ad here casts no aspersions on Congress’s 

performance whatsoever. Thus, as in WRTL II, this Court must go back to the basic principle that 

“government may regulate in the area only with narrow specificity,” Buckley, 424 U.S. at 41 n.48, 

and force the government to demonstrate “that a [sufficiently important] interest supports each 

application of a statute restricting speech.” WRTL II, 551 U.S. at 478 (Roberts, C.J., controlling 

opinion) (emphasis in original). 

 

23 Similarly, the Supreme Court reasoned in relation to a corporate ban on spending in WRTL II, 

“[t]hat a [sufficiently important] interest justif[ying] restrictions on express advocacy tells us little 

about whether a [sufficiently important] interest justifies restrictions on issue advocacy.” WRTL 

II, 551 U.S. at 478 (Roberts, C.J., controlling opinion); Citizens United, 558 U.S. at 366-67 (noting 

factors for exacting scrutiny).

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The only interest at issue with disclosure regulations and issue speech like those at issue 

here, however, is the informational interest.24 And the government has no informational interest in 

genuine issue speech. Rather, as discussed above, disclosure related to such speech tells voters 

nothing about who is supporting or opposing a candidate. It thus does nothing to help voters “place 

each candidate in the political spectrum more precisely.” Buckley, 424 U.S. at 67. Disclosure of 

donors to an educational nonprofit that merely mentions a state’s sitting U.S. senators has no 

connection, in this case, to that interest. Instead, disclosure would confuse voters by suggesting 

that donors are supporting or opposing candidates when in fact they are not.

As discussed above, BCRA imposes heavy burdens on organizations like the Institute: 

§ 501(c)(3) entities engaging only in issue speech. BCRA violates the privacy rights of both the 

organizations and their donors, and it yokes even small organizations with substantial 

administrative burdens. Such burdens may be appropriate for other organizations engaging in other 

types of speech. But it chills the speech of a § 501(c)(3) that works hard to keep its donors private 

and that cannot, by statute, engage in any candidate-support or candidate-opposition activity, as 

seen in its silence about an important public issue in 2014.

Thus, “[b]ecause [Independence Institute’s] ad[ is] not express advocacy or its functional 

equivalent”—indeed it is genuine issue speech that is not even close to unambiguously campaignrelated—and “because [the government] identif[ies] no interest sufficiently [important] to justify 

 

24 The anti-circumvention interest, see Buckley, 424 U.S. at 68, is irrelevant here because there are 

no contribution limits, and consequently no violations of those limits to detect through disclosure. 

The anti-corruption interest, see id. at 67, is also irrelevant because—as this is genuine issue speech

done independently of any candidate—there are no quid pro quo deals to detect. See WRTL II, 551 

U.S. at 478-79 (Roberts, C.J., controlling opinion) (noting that genuine issue ads are not equivalent 

to contributions). 

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burdening [Independence Institute’s] speech,” BCRA’s disclosure requirements are 

unconstitutional as applied to Independence Institute’s ad. WRTL II, 551 U.S. 481. 

V. Ruling in favor of the Institute and its activity keeps BCRA intact while properly 

limiting its reach to unambiguously campaign-related speech.

Despite signing BCRA into law, the President noted in his signing statement that “[c]ertain 

provisions present constitutional concerns,” and he expressed “reservations about the 

constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety 

of groups on issues of public import in the months closest to an election.” George W. Bush, 

Statement on Signing the Bipartisan Campaign Reform Act (March 27, 2002).25 The President 

observed that he “expect[ed] that the courts w[ould] resolve these legitimate legal questions as 

appropriate.” Id. The courts did resolve certain of those legal questions by upholding, facially, the 

electioneering communications definition. McConnell, 540 U.S. at 199. 

Here, an as-applied challenge is brought, but ruling for the Institute would not unravel 

BCRA. In the event that the expansive definition of “electioneering communications” was found 

to be overbroad in this context, Congress specifically provided for a backup definition of 

“electioneering communication”—a definition narrowing its reach to accord with the Constitution:

If clause (i) is held to be constitutionally insufficient by final judicial decision to 

support the regulation provided herein, then the term “electioneering 

communication” means any broadcast, cable, or satellite communication which 

promotes or supports a candidate for that office, or attacks or opposes a candidate 

for that office (regardless of whether the communication expressly advocates a vote 

for or against a candidate) and which also is suggestive of no plausible meaning 

other than an exhortation to vote for or against a specific candidate.

52 U.S.C. § 30104(f)(3)(A)(ii). Under the backup definition, any communication in the 

electioneering communications window that Promotes, Attacks, Supports, or Opposes (“PASO”) 

 

25 Available at http://www.presidency.ucsb.edu/ws/?pid=64503.

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a candidate may be regulated. The PASO standard is narrower, and more constitutionally 

defensible, than regulating any speech that merely mentions a candidate within the electioneering 

communications window (the current law), but it still captures the “unambiguously campaignrelated” speech in which the government has an appropriate informational interest. 

And the PASO standard already enjoys the Supreme Court’s approval. McConnell, 540 

U.S. at 170, id. n.64. Likewise, a panel of the First Circuit used a similar promotes or opposes 

construction to narrow a Maine law that would otherwise have been overbroad. Nat’l Org. for 

Marriage v. McKee, 649 F.3d 34, 66 (1st Cir. 2011). As the First Circuit noted, such a standard 

“succeeds both in ‘provid[ing] explicit standards for those who apply’ the provisions at issue here 

and in ensuring that persons of average intelligence will have reasonable notice of the provisions’

coverage.” Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)) (alteration in 

McKee). 

Thus a ruling in favor of the Independence Institute will not upset the ordinary enforcement 

of the campaign finance laws, but it will protect the Institute’s genuine issue speech from the 

burdens of campaign finance disclosure and its donors from the loss of their privacy rights.

VI. The Independence Institute’s challenge is not moot because it intends to run 

substantively similar ads in the future. 

This Court ordered the parties to “address whether their dispute is now moot” and if the 

Independence Institute “intends to make a qualifying ‘electioneering communication’ . . . for the 

upcoming election cycle.” Scheduling Order at 2, Indep. Inst. v. FEC, No. 1:14-cv-1500-CKKPAM-APM (D.D.C. May 17, 2016), ECF No. 35. This dispute, like almost all challenges to 

election laws, is not moot because it “fit[s] comfortably within the established exception to 

mootness for disputes capable of repetition, yet evading review.” WRTL II, 551 U.S. at 462. 

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The test is twofold: “The exception applies where (1) the challenged action is in its duration 

too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable 

expectation that the same complaining party will be subject to the same action again.” Id. (internal 

quotation marks omitted). The first prong of this test is easily met, because BCRA’s electioneering 

communication window is too short for “complete judicial review of its claims in time for it to air 

its ads” Id. (internal quotation marks omitted); cf. Holmes v. FEC, 99 F. Supp. 3d 123, 138 (D.D.C. 

2015) (“Election controversies like this one ‘are paradigmatic examples of cases that cannot be 

fully litigated before the particular controversy expires.’” (quoting Moore v. Hosemann, 591 F.3d 

741, 744 (5th Cir. 2009)). 

As for the second prong, the D.C. Circuit considered that precise issue, in this very case, 

when the FEC asserted mootness in its Answer Brief on appeal.26 The Institute promptly 

disagreed,27 and it filed a motion to supplement the record on appeal with a Declaration of Jon 

Caldara, the Independence Institute’s president, stating the Institute’s intention in future years to 

run substantively similar advertisements to the one at issue here.28 The declaration was 

accompanied by a press release dated November 3, 2014, stating the Institute’s intent to run future 

ads should it win this challenge.29

 

26 Ans. Br. at 46, Indep. Inst. v. FEC, No. 14-5249 (D.C. Cir. May 8, 2015), ECF No. 1551586.

27 Reply Br. at 24-27, Indep. Inst. v. FEC, No. 14-5249 (D.C. Cir. May 22, 2015), ECF No. 

1553771. 

28 Motion to Supplement Record at 7-8, Indep. Inst. v. FEC, No. 14-5249 (D.C. Cir. Sept. 24, 

2015), ECF No. 1574833; Declaration of Jon Caldara, Ex. A, id.

29 Attachment A, id.

Normally, this Court can take judicial notice of the existence and content of newspaper articles 

and other media. See, e.g., Wash. Post v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991) (citing 

Fed. R. Evid. 201(c)); Council of the Dist. of Columbia v. Gray, 42 F. Supp. 3d 134, 149 n.5 

(D.D.C. 2014), rev’d on other grounds, No. 14-7067, 2015 U.S. App. LEXIS 8881 (D.C. Cir. May 

27, 2015) (applying Washington Post). However, the Institute’s press release—issued the day 

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After full briefing,30 the Court of Appeals granted the motion and admitted the declaration 

and press release. Order, Indep. Inst. v. FEC, No. 14-5249 (D.C. Cir. Oct. 13, 2015), ECF No. 

1577832 (per curiam). At oral argument before the D.C. Circuit, the Commission admitted that the 

Institute’s challenge was not moot under the “capable of repetition, yet evading review” exception. 

Oral Argument at 24:53, Indep. Inst. v. FEC, No. 14-5249 (D.C. Cir. Oct. 22, 2015).31 The Court 

of Appeals reached the merits of the appeal and ordered the convening of this Court. Indep. Inst. 

v. FEC, 816 F.3d 113, 117 (D.C. Cir. 2016). Neither the majority nor the dissenting judge believed 

the FEC’s by-then-abandoned mootness issue merited mention. See id. at 114-19. 

The Institute faces the same difficulties in speaking this year as it did in 2014,32 and has 

stated its intent to run substantively similar ads in this and future years. Such declarations are 

enough to alleviate mootness. Unity08 v. FEC, 596 F.3d 861, 864 (D.C. Cir. 2010) (finding case 

was not moot where plaintiff filed “a sworn declaration unambiguously stating a conditional intent 

to resume activities in a future election cycle if the group wins its lawsuit against the [Federal 

Election] Commission”); cf. Holmes, 99 F. Supp. 3d. at 139 (collecting cases). Both the 

Declaration of Jon Caldara and the Press Release, which are now part of the record pursuant to an 

order of the Court of Appeals, are appended to this filing as Exhibit A. Order, Indep. Inst. v. FEC, 

No. 14-5249 (D.C. Cir. Oct. 13, 2015), ECF No. 1577832 (per curiam).

 

before Election Day 2014—was not picked up by a media outlet. It is therefore not readily 

accessible by this Court.

30 In total, mootness was briefed five times before the D.C. Circuit.

31 Available at

https://www.cadc.uscourts.gov/recordings/recordings2016.nsf/638E93666D13933685257EE600

58FB78/$file/14-5249.mp3.

32 When the Institute first brought the challenge in 2014, the proposed ad mentioned both Colorado 

Senators Udall and Bennett. At the time, Senator Udall was a candidate seeking reelection, which 

he ultimately lost. Now, Senator Bennett is up for reelection, and the Justice Safety Valve Act is 

still under consideration by Congress. 

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Conclusion

For the reasons above, Plaintiff Independence Institute respectfully asks that the Court 

grant summary judgment, holding that 52 U.S.C. § 30104(f) is overbroad under the First 

Amendment, as applied to the Independence Institute and its proposed advertisement (or 

substantively similar advertisements), and enjoining enforcement of 52 U.S.C. § 30104(f) against 

the Independence Institute for its proposed activity.

Dated: June 17, 2016

Respectfully submitted, 

s/ Allen Dickerson

Allen Dickerson (D.C. Bar No. 1003781)

Tyler Martinez (D.C. Bar No. 1022937) 

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff 

Independence Institute

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