No. 16-743 

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

In The 

Supreme Court of the United States 

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

INDEPENDENCE INSTITUTE, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

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

On Appeal From The United States 

District Court For The District Of Columbia 

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

BRIEF OF THE INSTITUTE FOR JUSTICE 

AND CATO INSTITUTE AS AMICI CURIAE

IN SUPPORT OF APPELLANT 

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

ILYA SHAPIRO

CATO INSTITUTE

1000 Mass. Ave., N.W. 

Washington, DC 20001 

(202) 842-0200 

January 9, 2017 

PAUL M. SHERMAN*

SAMUEL B. GEDGE

INSTITUTE FOR JUSTICE

901 North Glebe Road 

Suite 900 

Arlington, VA 22203 

(703) 682-9320 

psherman@ij.org 

*Counsel of Record

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

WWW.COCKLELEGALBRIEFS.COM 
i 

TABLE OF CONTENTS 

Page 

INTEREST OF AMICI CURIAE ......................... 1 

SUMMARY OF ARGUMENT .............................. 2 

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

 I. The electioneering-communication law is 

a content-based restriction on speech ....... 5 

A. The electioneering-communication law 

draws distinctions based on content ..... 6 

B. Mandatory reporting systems like the 

electioneering-communication law burden citizens and groups in exercising 

their First Amendment rights ............. 8 

1. By forcing people to divulge sensitive information, mandatorydisclosure laws expose them to 

reprisals that government actors 

are deliberately shielded from ........ 9 

2. Mandatory-disclosure laws infringe 

people’s interest in controlling 

their personal information ............. 18 

 II. Whether the electioneering-communication 

law satisfies heightened First Amendment 

review is a substantial question ................ 22 

A. The government’s asserted informational interest breaks with First 

Amendment principles ........................ 22 
ii 

TABLE OF CONTENTS – Continued 

Page 

B. The electioneering-communication law 

is not tailored to serve the informational interest ...................................... 24 

CONCLUSION ..................................................... 27 
iii 

TABLE OF AUTHORITIES 

Page 

CASES

Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 

2011), aff ’d, 132 S. Ct. 1087 (2012) ........................ 22 

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 

(1983) ................................................................... 4, 25 

Brown v. Perez, 835 F.3d 1223 (10th Cir. 2016) ........... 16 

Brown v. Socialist Workers ’74 Campaign 

Comm., 459 U.S. 87 (1982) ...................................... 15 

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

Citizens United v. FEC, 558 U.S. 310 (2010) ...... passim

Citizens United v. Schneiderman, No. 14-cv3703, 2016 WL 4521627 (S.D.N.Y. Aug. 29, 

2016), appeal docketed, No. 16-3310 (2d Cir.) ........ 15 

Del. Strong Families v. Denn, 136 S. Ct. 2376 

(2016) ......................................................................... 9 

Doe v. Reed, 561 U.S. 186 (2010) ................................. 15 

Free Speech Coal. v. Att’y Gen., 825 F.3d 149 (3d 

Cir. 2016) ................................................................... 8 

Judicial Watch v. FDA, 449 F.3d 141 (D.C. Cir. 

2006) ........................................................................ 17 

Judicial Watch v. United States, 84 F. App’x 335, 

339 (4th Cir. 2004) (unpublished) ........................... 17 

Long v. Office of Personnel Mgmt., 692 F.3d 185 

(2d Cir. 2012) ........................................................... 17 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

McConnell v. FEC, 540 U.S. 93 (2003), overruled 

on other grounds by Citizens United, 558 U.S. 

310 ............................................................... 23, 25, 26 

McCullen v. Coakley, 134 S. Ct. 2518 (2014) ................ 7 

Olmstead v. United States, 277 U.S. 438 (1928), 

overruled in part by Katz v. United States, 389 

U.S. 347 (1967) .......................................................... 5 

Prudential Locations LLC v. U.S. Dep’t of Hous. 

& Urban Dev., 739 F.3d 424 (9th Cir. 2013) ........... 17 

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ..... 2, 6, 7, 8 

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ........... 8 

U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 

510 U.S. 487 (1994) ..................................... 16, 17, 25 

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989) ................. 3, 20, 21 

U.S. Dep’t of State v. Ray, 502 U.S. 164 (1991) ............ 18, 21 

United States v. Alvarez, 132 S. Ct. 2537 (2012) ........ 24 

Thomas v. Collins, 323 U.S. 516 (1945) ...................... 24 

Whalen v. Roe, 429 U.S. 589 (1977) ...................... 15, 21 

Widmar v. Vincent, 454 U.S. 263 (1981) ..................... 25 

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS

52 U.S.C. § 30101(13)(A) ............................................. 18 

52 U.S.C. § 30104(b)(3)(A) .......................................... 10 

52 U.S.C. § 30104(c)(2)(C) ........................................... 18 
v 

TABLE OF AUTHORITIES – Continued 

Page 

52 U.S.C. § 30104(f)(2)(F) ....................................... 2, 18 

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

52 U.S.C. § 30121(a)(1)(C) .......................................... 22 

11 C.F.R. § 100.17 ......................................................... 6 

Colo. Const. art. XXVIII, § 9(2)(a) .............................. 12 

LEGISLATIVE MATERIALS

Eco-Terrorism Specifically Examining Stop 

Huntingdon Animal Cruelty (‘‘SHAC’’) Before 

the S. Comm. on Env’t & Pub. Works, 109th 

Cong. (2005) ............................................................. 10 

147 Cong. Rec. S3116 (Mar. 29, 2001) .......................... 8 

OTHER AUTHORITIES

@EveryDemDonor, 

https://twitter.com/everydemdonor ......................... 20 

2010 Political Donations: HuffPost’s FundRace 

Lists Contributions, The Huffington Post 

(Sept. 28, 2010), https://goo.gl/wJnEMz ................. 20 

Matt Arnold, Turning the Tables: Fighting Back 

against the Left’s Lawfare in Colorado, Common 

Sense News (Feb. 2014), https://goo.gl/yOMlRH ...... 13 

Benjamin Barr & Stephen Klein, Publius Was 

Not a PAC: Reconciling Anonymous Political 

Speech, the First Amendment, and Campaign 

Finance Disclosure, 14 Wyo. L. Rev. 253 

(2014) ....................................................................... 16 
vi 

TABLE OF AUTHORITIES – Continued 

Page 

Louis Brandeis, Other People’s Money (1933) ............. 5 

Gigi Brienza, I Got Inspired. I Gave. Then I Got 

Scared, Wash. Post, July 1, 2007 ............................ 10 

Dick M. Carpenter II, Institute for Justice, Disclosure Costs: Unintended Consequences of 

Campaign Finance Reform (2007) .................... 18, 19 

Dick M. Carpenter II et al., Disclosing Disclosure: 

Lessons from a “Failed” Field Experiment, 

12:2 The Forum 343 (2014) ..................................... 19 

Decision, Campaign Integrity Watchdog v. Colo. 

Republican Party PAC, OS2016-0002 (Colo. 

Office of Admin. Cts. 2016), http://goo.gl/2jKTl5 ........ 13 

Durbin Wants a List, Wall St. J., Aug. 7, 2013 ........... 12 

FEC & Att’y Gen. Br., Buckley v. Valeo, 424 U.S. 

1 (No. 75-436) .......................................................... 25 

FEC Mot. to Dismiss or Affirm, Bluman v. FEC, 

132 S. Ct. 1087 (No. 11-275) ................................... 22 

Jenna Johnson, This is what happens when Donald Trump attacks a private citizen on Twitter, 

Wash. Post, Dec. 8, 2016 .......................................... 13 

Letter from J. Allison to R. Durbin (Aug. 8, 

2013), https://goo.gl/fL5CrA .................................... 11 

Mayor threatened, harassed, police investigate, 

The Garden Island, Nov. 1, 2013 ............................ 14 

Christina Manduley, Woman bullied after Trump 

tweet: I was threatened with rape, CNN.com 

(Dec. 9, 2016), https://goo.gl/nWOu7v ..................... 13 
vii 

TABLE OF AUTHORITIES – Continued 

Page 

Media Matters Action Network, 2012: A ThreeYear Campaign, https://goo.gl/71M3PH ................. 11 

Mi-Ai Parrish, How do we respond to threats after our endorsement? This is how, Ariz. Republic, Oct. 25, 2015 ...................................................... 14 

The Mozilla Blog, FAQ on CEO Resignation 

(Apr. 5, 2014), https://goo.gl/MVG0Fg .................... 11 

Pet’r’s Br., Fed. Labor Relations Auth., 510 U.S. 

487 (No. 92-1223) .................................................... 21 

Yesenia Robles, Death threats, big money become 

part of Jeffco school board race, Denver Post, 

Oct. 29, 2015 ............................................................ 14 

Ilya Shapiro, Mozilla’s CEO Showed The Cost 

Of Disclosure Laws By Crossing The SatanScherbatsky Line, Forbes (Apr. 6, 2014), 

https://goo.gl/0e1hcd ................................................ 11 

Kimberley A. Strassel, Trolling for Dirt on the 

President’s List, Wall St. J., May 10, 2012 .............. 12 

Kimberley A. Strassel, Obama’s Enemies List—

Part II, Wall St. J., July 19, 2012 ............................ 12 

Transcript, Sen. Charles E. Schumer, D-NY, and 

Rep. Christopher Van Hollen, D-MD., Hold a 

News Conference on Citizens United v. FEC 

Ruling, 2010 WL 465697, Roll Call (Feb. 11, 

2010) .......................................................................... 8 

Nathan Yau, Inbox influence shows political contributions by the people in your email, FlowingData, https://goo.gl/In6OJb ................................ 20 
1 

INTEREST OF AMICI CURIAE1

 The Institute for Justice (IJ) is a nonprofit publicinterest law firm dedicated to defending the foundations of a free society, including the right to speak out 

on elections and other matters of public import. IJ 

litigates First Amendment cases that challenge mandatory disclosure and files amicus curiae briefs in important campaign-finance cases. IJ has also published 

empirical studies that measure the burdens of campaign-finance disclosure requirements. Its perspective, 

experience, and research will provide valuable insights 

into the costs and burdens associated with mandatorydisclosure laws like the one at issue in this case. 

 The Cato Institute (Cato) is a nonpartisan publicpolicy research foundation founded in 1977 and dedicated to advancing the principles of individual liberty, 

free markets, and limited government. Cato’s Center 

for Constitutional Studies, established in 1989, helps 

restore the principles of constitutional government that 

are the foundation of liberty. To those ends, Cato holds 

conferences and publishes books, studies, and the annual 

Cato Supreme Court Review. This case concerns Cato 

because private association is an essential right that 

must be protected against governmental intrusion. 

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

1

 No counsel for a party authored this brief in whole or in 

part, and no such counsel or party made a monetary contribution 

intended to fund the preparation or submission of this brief. No 

person, other than amici curiae, their members, or their counsel, 

made a monetary contribution to fund this brief ’s preparation or 

submission. Upon timely receipt of notice of amicus IJ’s intent to 

file this brief, Appellant and Appellee consented to its filing. 
2 

SUMMARY OF ARGUMENT 

 Under the federal electioneering-communication 

law, a citizen who helps pay for a message about public 

affairs may see her name and mailing address publicized on an easily searchable government database. 52 

U.S.C. § 30104(f )(2)(F). Whether her name and address 

are disclosed depends entirely on the content of the 

message she supported. In any other context, this 

would be an easy case: The electioneering-communication law burdens freedom of speech and association on 

content-based lines and may be upheld only if it meets 

strict scrutiny. 

 Since 1976, however, this Court has declined to 

judge campaign-finance disclosure laws by ordinary 

First Amendment standards. Instead, the Court uses 

“exacting” scrutiny, a more complaisant form of review. 

The result is that mandatory-disclosure laws have proliferated to the point where, in this case, the government claims that it may compel disclosure of the 

supporters of an ad that advocates for no candidate, 

mentions no election, and takes no position on anyone’s 

fitness for office. This presents a substantial question 

of federal law and an opportunity for the Court to align 

its campaign-finance precedent with constitutional 

first principles. 

 I. If any law should trigger searching review, it is 

this one. The electioneering-communication law regulates speech and “singles out specific subject matter for 

differential treatment,” making it facially contentbased. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2230 
3 

(2015). Legislators have even heralded the system’s 

deterrent effect on unwelcome speech. 

 The resulting burdens are profound. First, forcing 

people to divulge their names, addresses, and political 

leanings exposes them to reprisals. Every election cycle brings fresh evidence of this phenomenon; even the 

most basic acts of civic engagement can trigger threats 

of violence, lawsuits, and career-ending social-media 

crusades. In the past, the Court has discounted this 

speech-deterrent consequence, reasoning that only actual targets of harassment are chilled from speaking. 

But in the Information Age, it is often impossible to 

predict what viewpoints may provoke retaliation, 

much less prove it in court. 

 Second, mandatory-disclosure laws chill speech by 

forcing people to surrender their “privacy interest in 

keeping personal facts away from the public eye.” U.S. 

Dep’t of Justice v. Reporters Comm. for Freedom of 

Press, 489 U.S. 749, 769 (1989). Outside the First 

Amendment context—in Freedom of Information Act 

cases, for instance—the Court gives great weight to 

“the individual’s control of information concerning his 

or her person.” Id. at 763. That same solicitude should 

extend to citizens who do not wish to give up their personal information as the cost of engaging in advocacy 

or protest. 

 II. Given its content-based structure and speechchilling burdens, the electioneering-communication 

law is a leading candidate for strict scrutiny. What 

the courts apply instead, however, is an “exacting” 
4 

standard that raises grave questions under the First 

Amendment. Under exacting scrutiny, mandatorydisclosure laws are alleged to serve a substantial interest because they allow the government to “help” listeners “react” to speech in “a proper way.” See Citizens 

United v. FEC, 558 U.S. 310, 367, 371 (2010). Through 

no other First Amendment lens would that interest appear substantial, or even legitimate. 

 Even if the informational interest were wellfounded, the government has never shown that systems like the electioneering-communication law materially further this interest. In Buckley v. Valeo, 424 U.S. 

1 (1976) (per curiam), the Court devoted little more 

than a sentence to the issue, id. at 68; see also id. at 81-

82. Since then, the Court has taken Buckley’s conclusion on faith, without ever requiring the government 

to show why publicizing a citizen’s personal data provides more than “the most limited incremental support 

for the interest asserted.” Bolger v. Youngs Drug Prods. 

Corp., 463 U.S. 60, 73 (1983). This case shows how far 

afield the government has strayed: Appellant would be 

required to report the names and addresses of people 

who support a message that is independent of any candidate, advocates for no one’s election, and does not 

even approach a stance on any candidate’s merits. 

Under no meaningful scrutiny would applying the electioneering-communication law advance the government’s informational interest here (much less combat 

the sort of corruption that has historically been viewed 

as the main target of campaign-finance laws). 
5 

 None of this gave the district court pause, which 

spotlights why this Court’s intervention is needed. 

For defenders of mandatory-disclosure laws—and for 

courts upholding them—the First Amendment analysis too often reduces to the aphorism that “[s]unlight is 

said to be the best of disinfectants.” Buckley, 424 U.S. 

at 67 (quoting Louis Brandeis, Other People’s Money 

62 (1933)). Yet a later Brandeis maxim better captures 

the scrutiny these laws merit: “Experience should 

teach us to be most on our guard to protect liberty 

when the government’s purposes are beneficent.” 

Olmstead v. United States, 277 U.S. 438, 479 (1928) 

(Brandeis, J., dissenting), overruled in part by Katz v. 

United States, 389 U.S. 347 (1967). Whatever Congress’s purposes, the electioneering-communication 

law is content-based, intrudes on speech and association, and has not been shown to serve a legitimate 

governmental interest. The law’s constitutionality presents a substantial question that warrants review. 

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

ARGUMENT 

I. The electioneering-communication law is 

a content-based restriction on speech. 

 By requiring speakers to publicly disclose their 

allies when they mention federal candidates, the 

electioneering-communication law imposes a contentbased burden that calls for strict scrutiny. Because the 

law applies only to broadcast speech that “refers to a 

clearly identified candidate for Federal office,” 52 
6 

U.S.C. § 30104(f )(3)(A)(i)(I), it embodies an “obvious” 

content-based distinction. See Reed, 135 S. Ct. at 2227. 

The accompanying burdens can hardly be overstated: 

Conditioning First Amendment rights on publicizing 

personal data invites reasonable fears of reprisal and 

dissuades citizens and groups from participating in advocacy and protest. 

A. The electioneering-communication law 

draws distinctions based on content. 

 If a speaker conveys a broadcast message in the 

months leading up to a federal election, that message 

is regulated as an electioneering communication only 

if it refers to a federal candidate (and meets other criteria). Thus, a message with a candidate’s “name, nickname, photograph, or drawing” or other “unambiguous 

reference” may be an electioneering communication. 11 

C.F.R. § 100.17. Any other message is not. Whether the 

law applies “thus depend[s] entirely on the communicative content of the [message].” Reed, 135 S. Ct. at 

2227. 

 The advertisement Appellant wishes to run illustrates the point. But for the electioneering-communication law, Appellant would have placed a radio ad in 

2014 “urg[ing] Coloradoans to call Senator Udall, as 

well as Senator Michael Bennet, to express support for 

the Justice Safety Valve Act.” Jurisdictional Statement 

App. 7. Senator Bennet was not campaigning for 

reelection in 2014, so saying “Senator Bennet” would 

not have implicated the electioneering-communication 
7 

law. Senator Udall, by contrast, was an active candidate, so saying “Senator Udall” would have triggered 

the law. 

 A law that applies in this way is paradigmatically 

content-based. In Reed, for example, the Court remarked that “a law banning the use of sound trucks for 

political speech—and only political speech—would be 

a content-based regulation, even if it imposed no limits 

on the political viewpoints that could be expressed.” 

Reed, 135 S. Ct. at 2230. The electioneering-communication law draws just such a distinction. As Appellant’s 

case shows, the law regulates not just “political” 

speech, but any qualifying message so long as it refers 

to a federal candidate. Put differently, the law “expressly draws distinctions based on the [message’s] 

communicative content,” id. at 2228, because the government can determine whether the law applies only 

by “examin[ing] the content of the message that is conveyed,” McCullen v. Coakley, 134 S. Ct. 2518, 2531 

(2014) (citation omitted). 

 Further—and as the Court restated two Terms 

ago—it is no answer to say that the law is content-neutral because Congress acted with “benign motive, content-neutral justification, or lack of ‘animus toward the 

ideas contained’ in the regulated speech.” Reed, 135 

S. Ct. at 2228 (citation omitted). Foremost, “an innocuous justification cannot transform a facially contentbased law into one that is content neutral.” Id. Moreover, 

Congress gave plenty of reasons to believe that the 

electioneering-communication law was enacted with 

an eye toward muting criticism. In 2001, a leading 
8 

sponsor of the Bipartisan Campaign Reform Act 

promised that “[i]f you demand full disclosure for those 

that pay for those ads, you’re going to see a lot less [‘attack’ advertising].” 147 Cong. Rec. S3116 (Mar. 29, 

2001) (Sen. McCain). Introducing a more recent bill to 

expand the electioneering-communication law, another 

Senator remarked that “[t]he deterrent effect should 

not be underestimated.” Transcript, Sen. Charles E. 

Schumer, D-NY, and Rep. Christopher Van Hollen, DMD., Hold a News Conference on Citizens United v. 

FEC Ruling, 2010 WL 465697, Roll Call (Feb. 11, 2010). 

The legislative record thus signals that, like many content-based laws, the electioneering-communication 

law was created with speech-deterrence in mind. Cf. 

Reed, 135 S. Ct. at 2233 (Alito, J., concurring) (“Limiting speech based on its ‘topic’ or ‘subject’ favors those 

who do not want to disturb the status quo.”). 

B. Mandatory reporting systems like the 

electioneering-communication law burden citizens and groups in exercising 

their First Amendment rights. 

 That the electioneering-communication law mandates disclosure (rather than banning speech outright) 

does not make it any less content-based. “[T]he ‘distinction between laws burdening and laws banning 

speech is but a matter of degree,’ ” so “[t]he ‘Government’s content-based burdens must satisfy the same 

rigorous scrutiny as its content-based bans.’ ” Sorrell v.

IMS Health Inc., 564 U.S. 552, 565-66 (2011) (citation 

omitted); see also Free Speech Coal. v. Att’y Gen., 825 
9 

F.3d 149, 159-64 (3d Cir. 2016) (holding that strict 

scrutiny attaches to recordkeeping statute governing 

depictions of sexually explicit conduct). And mandatory-disclosure laws burden speech and association in 

at least two ways. First, they make speakers and their 

supporters vulnerable to retaliation based on their 

political views. Second, the laws abridge speech and 

association by infringing people’s privacy interests in, 

for example, their addresses, occupations, and political 

sympathies. 

1. By forcing people to divulge sensitive 

information, mandatory-disclosure 

laws expose them to reprisals that 

government actors are deliberately 

shielded from. 

 a. Mandatory-disclosure laws carry with them 

the reasonable fear of exposure to retaliation. With 

personal data available at the click of a button, “disclosure requirements enable private citizens and elected 

officials to implement political strategies specifically 

calculated to curtail campaign-related activity and 

prevent the lawful, peaceful exercise of First Amendment rights.” Del. Strong Families v. Denn, 136 S. Ct. 

2376, 2377 (2016) (Thomas, J., dissenting from denial 

of certiorari) (quoting Citizens United, 558 U.S. at 483 

(Thomas, J., concurring in part and dissenting in 

part)). In part for this reason, the Court has long 

acknowledged that “public disclosure . . . will deter 

some individuals who otherwise might contribute” to 

political causes. Buckley, 424 U.S. at 68. 
10 

 In the Information Age, the prospect of retaliation 

has only intensified; it is an unavoidable consideration 

for anyone whose views are publicized on virtually any 

topic of public note. As an extreme example, consider 

Gigi Brienza, who made a $500 contribution to a presidential campaign. Because she gave more than $200, 

her name, address, and employer were disclosed on the 

campaign’s FEC reports. 52 U.S.C. § 30104(b)(3)(A). 

That put her in the crosshairs of Stop Huntingdon 

Animal Cruelty (SHAC), a “radical animal rights organization that relie[d] on crimes of violence and a 

campaign of fear.” Eco-Terrorism Specifically Examining Stop Huntingdon Animal Cruelty (‘‘SHAC’’) Before 

the S. Comm. on Env’t & Pub. Works, 109th Cong. 

(2005) (Sen. Inhofe). Two years after making the contribution, Brienza learned that SHAC had “culled [her] 

information from campaign contribution records,” determined that she worked for a company they disliked, 

then publicized her name and home address on a list 

of “targets,” declaring “Now you know where to find 

them.” Going forward, Brienza wrote, “I will limit my 

contribution to $199.99: the price of privacy in an age 

of voyeurism and the cost of security in an age of domestic terrorism.” Gigi Brienza, I Got Inspired. I Gave. 

Then I Got Scared, Wash. Post, July 1, 2007. 

 Brienza’s story illustrates that the modern risks 

created by mandatory disclosure may have nothing to 

do with the political positions of the donor herself; Brienza was targeted because of the company she worked 

for, not because of her political views. At the same time, 

there are unmistakable signs of a “cottage industry 
11 

that uses forcibly disclosed donor information to 

pre-empt citizens’ exercise of their First Amendment 

rights” by punishing those who support disfavored candidates or measures. Citizens United, 558 U.S. at 482 

(Thomas, J., concurring in part and dissenting in part). 

The speech-retaliatory aftermath of California’s Proposition 8, in 2008, is well-documented. Id. Even six 

years later, “intense pressure from the press and social 

media” drove a business executive to resign based on a 

contribution he made during that campaign. The 

Mozilla Blog, FAQ on CEO Resignation (Apr. 5, 2014), 

https://goo.gl/MVG0Fg; see also Ilya Shapiro, Mozilla’s 

CEO Showed The Cost Of Disclosure Laws By Crossing 

The Satan-Scherbatsky Line, Forbes (Apr. 6, 2014), 

https://goo.gl/0e1hcd. 

 There are other examples. In 2010, a researchand-information center outlined plans to “systematically review the independent expenditure reports provided to the FEC” and use the data to “aggressively 

attack” disfavored speakers and “provoke backlashes 

among companies’ shareholders, employees, and customers, and the public-at-large.” Media Matters Action 

Network, 2012: A Three-Year Campaign 82-83, https:// 

goo.gl/71M3PH. “Over time,” the center stated, “we believe these efforts will dissuade corporations from interfering in our democracy.” Id. 83. 

 In similar vein, in 2013, U.S. Senator Durbin contacted organizations that he believed were associated 

with the American Legislative Exchange Council 

(ALEC). “Although ALEC does not maintain a public 

list of corporate members or donors,” Senator Durbin 
12 

informed them, “other public documents indicate that 

your company funded ALEC” in recent years. In his capacity as a federal lawmaker, Senator Durbin then 

asked each recipient to state its position on ALEC’s 

model “stand your ground” legislation. Durbin Wants a 

List, Wall St. J., Aug. 7, 2013. Amicus Cato Institute—

one of the targeted organizations—responded that 

the letter was “an obvious effort to intimidate” and 

amounted to “a subtle but powerful form of government coercion.” Letter from J. Allison to R. Durbin 

(Aug. 8, 2013), https://goo.gl/fL5CrA. 

 Or take Frank VanderSloot, an Idahoan whose 

business contributed to a group advocating for a Republican presidential candidate in 2011. The Democratic presidential campaign singled out VanderSloot 

on its website, and within three months a private investigator had sought court documents dealing with 

VanderSloot’s divorce, the IRS had opened an examination into his taxes, and the Department of Labor had 

notified him that it would be auditing his employees. 

Kimberley A. Strassel, Trolling for Dirt on the President’s List, Wall St. J., May 10, 2012; Kimberley A. 

Strassel, Obama’s Enemies List—Part II, Wall St. J., 

July 19, 2012. 

 At the state level, campaign-finance reports in 

Colorado fuel an enforcement system that runs almost 

entirely on speech-retaliation. Unlike most states, 

Colorado outsources its campaign-finance enforcement 

to “[a]ny person,” Colo. Const. art. XXVIII, § 9(2)(a), 

and viewpoint-discriminatory lawsuits are regularly 

prosecuted using data collected from campaign-finance 
13 

reports. One complainant—responsible for filing more 

than 60 such cases in recent years—champions the 

system as a way to wage “political guerilla legal warfare” against disfavored viewpoints. Matt Arnold, 

Turning the Tables: Fighting Back against the Left’s 

Lawfare in Colorado, Common Sense News (Feb. 2014) 

B-7, https://goo.gl/yOMlRH; see also Decision at 2, 

Campaign Integrity Watchdog v. Colo. Republican 

Party PAC, OS2016-0002 (Colo. Office of Admin. Cts. 

2016) (noting that complaint demanded $36,000 penalty for reporting errors involving two $3 contributions), http://goo.gl/2jKTl5. 

 Examples from outside the campaign-finance context further illustrate the risk of reprisals; even the 

most basic acts of civic engagement can have harrowing, unpredictable consequences. In 2015, for instance, 

a college student challenged a presidential candidate 

about his stance on women’s rights. After the candidate characterized her as “arrogant” and her statement as “nasty,” the student weathered an unremitting 

campaign of harassment. Jenna Johnson, This is what 

happens when Donald Trump attacks a private citizen 

on Twitter, Wash. Post, Dec. 8, 2016. “I think the worst 

day,” she recounted, “was when someone said my address and they said they were coming and they were 

going to rape me.” Christina Manduley, Woman bullied 

after Trump tweet: I was threatened with rape, 

CNN.com (Dec. 9, 2016), https://goo.gl/nWOu7v. 

 Employees at an Arizona newspaper faced similar 

repercussions when their paper endorsed last year’s 

Democratic presidential nominee. “[T]he reaction 
14 

started pouring in,” reported the paper’s president; 

“Threats against our business. Threats against our 

people.” Mi-Ai Parrish, How do we respond to threats 

after our endorsement? This is how, Ariz. Republic, Oct. 

15, 2016. Subscription-sellers were “spit on, threatened with violence, screamed at and bullied.” Id. Understandably, most of these lower-level personnel 

“were too frightened to share even their first names” in 

a piece reiterating their employer’s commitment to 

free speech. Id.

 And reprisals are not unique to nationwide elections and hot-button issues. In 2013, for instance, Hawaii police responded to “threats made against 

government officials and private property owners” following debate over a local law concerning pesticides. 

Mayor threatened, harassed, police investigate, The 

Garden Island, Nov. 1, 2013. During a Colorado schoolboard election, police “investigated incidents of death 

threats against children of board members and . . . 

against recall supporters.” Yesenia Robles, Death 

threats, big money become part of Jeffco school board 

race, Denver Post, Oct. 29, 2015. 

 None of this is to say, of course, that people who 

choose to publicize their views should enjoy immunity 

from criticism. Yet the Court should not ignore the 

chilling effect of requiring someone to publicize his or 

her personal information as the price of exercising constitutional rights. For many people—without tenure, 

without salary protection, and without security details—government-mandated disclosure of their political leanings and personal data is a real barrier. 
15 

 b. The federal courts have given uniquely short 

shrift to how the prospect of harassment chills political 

engagement. Since Buckley, this Court has acknowledged that “disclosure may . . . expose contributors to 

harassment or retaliation.” 424 U.S. at 68. But, also 

since Buckley, the Court has discounted this deterrent 

effect almost entirely. Only if a speaker can prove “a 

reasonable probability that [its] members would face 

threats, harassment, or reprisals if their names were 

disclosed” will courts grant a case-specific, as-applied 

exemption from mandatory-disclosure laws. Citizens 

United, 558 U.S. at 370. 

 This high bar mistakes the threat of harassment 

for a danger that affects only the rare “persecuted 

groups.” See Doe v. Reed, 561 U.S. 186, 218 (2010) (Stevens, J., concurring in part and concurring in the judgment). Yet much has changed since the Court decided 

early cases about government harassment of fringe political parties. Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982). Today, “[t]he central 

storage and easy accessibility of computerized data 

vastly increase the potential for abuse of that information.” Whalen v. Roe, 429 U.S. 589, 607 (1977) (Brennan, J., concurring). And every prospective speaker (or 

supporter) knows that there is a real possibility that 

their campaign-finance reports will be used against 

them for speech-retaliatory reasons. At the same time, 

speakers rarely know up front whether they or their 

allies will be the ones to trigger reprisals. Nor can most 

prove the likelihood of harm with “the requisite specificity or severity” courts demand. Citizens United v.
16 

Schneiderman, No. 14-cv-3703, 2016 WL 4521627, at 

*8 (S.D.N.Y. Aug. 29, 2016), appeal docketed, No. 16-

3310 (2d Cir.). 

 The difficulty in meeting this standard for as-applied relief bespeaks a fundamental problem: In no 

other area of First Amendment law do we “ask[ ] citizens to put their livelihoods and reputations on the 

line before the judiciary will protect them.” Benjamin 

Barr & Stephen R. Klein, Publius Was Not a PAC: Reconciling Anonymous Political Speech, the First Amendment, and Campaign Finance Disclosure, 14 Wyo. L. 

Rev. 253, 280 (2014). By crediting privacy concerns 

only when particular speakers somehow prove that 

they will face reprisals, this Court’s precedent discounts the inherent prospect of harassment that attends mandatory-disclosure laws. As the examples 

above show, this deterrent effect is pervasive precisely 

because it is impossible to predict whether your viewpoint will trigger retaliation. 

 Elsewhere, the courts give full weight to this burden. In exempting the names and addresses of government personnel under the Freedom of Information Act 

(FOIA), the courts are dependably “sensitive to the 

dangers—including exposure to harassment, pressure, 

or threats—inherent in revealing workers’ identities 

and addresses to potential adversaries.” Brown v. Perez, 835 F.3d 1223, 1236 (10th Cir. 2016). This Court 

has found it “clear” that federal employees have a “nontrivial privacy interest in nondisclosure” of their home 

addresses. U.S. Dep’t of Def. v. Fed. Labor Relations 

Auth., 510 U.S. 487, 501 (1994). The government—in 
17 

those cases, advocating for privacy—need offer no 

proof that divulging its employees’ addresses will invite a “reasonable probability” of “threats, harassment, 

or reprisals.” Citizens United, 558 U.S. at 370. It is 

enough that “[m]any people simply do not want to be 

disturbed at home by work-related matters” and that 

nondisclosure “can lessen the chance of such unwanted 

contacts” and “unsolicited, unwanted mail.” Fed. Labor 

Relations Auth., 510 U.S. at 501. 

 Some courts have extended this reasoning to 

names alone. The D.C. Circuit upheld nondisclosure of 

the names of FDA employees who worked on approval 

of an abortifacient, based on a general “danger of abortion-related violence.” Judicial Watch v. FDA, 449 F.3d 

141, 153 (D.C. Cir. 2006). The Ninth Circuit affirmed 

that “the invasion of a personal privacy interest may 

be ‘clearly unwarranted’ even when the invasion of privacy is far from a certainty.” Prudential Locations LLC 

v. U.S. Dep’t of Housing & Urban Dev., 739 F.3d 424, 

432 (9th Cir. 2013) (citation omitted) (upholding nondisclosure of private complainants’ names). And the 

Second Circuit approved nondisclosure of “the names 

and duty-station information of over 800,000 federal 

employees,” citing exposure to terrorism-related harassment because the employees worked in “sensitive 

agencies” and “sensitive occupations.” Long v. Office of 

Pers. Mgmt., 692 F.3d 185, 188, 192 (2d Cir. 2012); see 

also Judicial Watch v. United States, 84 F. App’x 335, 

339 (4th Cir. 2004) (unpublished) (affirming nondisclosure of names of IRS employees). 
18 

 If the prospect of harassment carries “great 

weight” under FOIA, U.S. Dep’t of State v. Ray, 502 U.S. 

164, 177 (1991), it is of paramount importance under 

the First Amendment.2

 If any of the 800,000 employees 

in Long were to give $1,000 to support an ad like Appellant’s, her name and mailing address would be published online automatically. 52 U.S.C. § 30104(f )(2)(F). 

Giving $200.01 for electoral advocacy would require 

publication of her occupation and employer as well. Id.

§§ 30104(c)(2)(C), 30101(13)(A). This uneven regard for 

disclosure burdens presents serious questions; at minimum, the privacy interests of those who participate in 

protest or advocacy do not merit less attention than the 

privacy interests of government actors. 

2. Mandatory-disclosure laws infringe 

people’s interest in controlling their 

personal information. 

 Mandated disclosure also creates a more general 

disincentive to engage in political activity. Even if 

someone does not anticipate reprisals, conditioning 

their speech and association on public exposure has a 

chilling effect. In the context of ballot-measure campaigns, for example, one study contrasted individuals’ 

opinions about mandatory-disclosure requirements in 

the abstract with their attitude about those same requirements when disclosure affected them personally. 

Dick M. Carpenter II, Institute for Justice, Disclosure 

2

 The plaintiffs in Ray sought information about government-interviewed deportees. 502 U.S. at 166. 
19 

Costs: Unintended Consequences of Campaign Finance 

Reform (2007). Although individuals generally claimed 

to support mandatory disclosure in the abstract, that 

support dropped off when they considered the personal 

costs: 

[S]upport for disclosure wanes considerably 

when the issue is personalized. . . . [M]ore 

than 56 percent disagreed or strongly disagreed that their identity should be disclosed, 

and the number grew to more than 71 percent 

when disclosure of their personal information 

included their employer’s name. 

Id. 7-8 (citation omitted). Further, three out of five people said they would think twice about donating to a 

ballot-measure campaign if it meant the government 

would disclose their names and addresses. Id. 7. 

“[E]ven those who strongly support forced disclosure 

laws,” the study concluded, “will be less likely to contribute to an issue campaign if their contribution and 

personal information will be made public.” Id. 8; see 

also Dick M. Carpenter II et al., Disclosing Disclosure: 

Lessons from a “Failed” Field Experiment, 12:2 The Forum 343, 343, 345 (2014) (noting that a vanishingly 

small percentage of federal candidates agreed to join 

an experiment whereby they would alert potential contributors “that their donations would be made available on the Internet, along with their address, employer, 

and other personal information”). 

 Online dissemination only sharpens the deterrent 

effect. Under federal and state campaign-finance 

systems, data detailing names, political leanings, 
20 

addresses, employers, and occupations is easily 

searchable. Last election cycle, one Twitter account 

even publicized “Democratic presidential campaign 

contributions, one donor at a time,” identifying each 

individual’s name, contribution amount, state and 

town of residence, employer, and job position. 

@EveryDemDonor, https://twitter.com/everydemdonor. 

In 2010, The Huffington Post boasted a feature that 

“makes it easy to search by name or address to see 

which congressional candidates your friends, family, 

co-workers, and neighbors are contributing to.” 

2010 Political Donations: HuffPost’s FundRace Lists 

Contributions, The Huffington Post (Sept. 28, 2010), 

https://goo.gl/wJnEMz. And Inbox Influence “allows 

you to see the political contributions of the people and 

organizations that are mentioned in emails you receive.” Nathan Yau, Inbox Influence shows political 

contributions by the people in your email, FlowingData, 

https://goo.gl/In6OJb. In short—and even if a citizen 

cannot prove that she will face violence or economic reprisals—the “invasion of privacy of belief ” visited by 

mandatory-disclosure laws is a distinct burden on 

First Amendment rights. Buckley, 424 U.S. at 66. 

 Again, FOIA precedent drives home the point. 

In that context, the Court eschews a “cramped notion 

of personal privacy,” instead embracing one that “encompass[es] the individual’s control of information 

concerning his or her person.” Reporters Comm. for 

Freedom of Press, 489 U.S. at 763 (applying Exemption 

7(C)). Thus, in opposing disclosure of its employees’ 

personal information, the government has argued that 
21 

divulging home addresses would infringe “one of the 

chief bastions of privacy.” Pet’r’s Br. 32, Fed. Labor Relations Auth., 510 U.S. 487 (No. 92-1223). And, again in 

the FOIA sphere, this Court cites the risk of “embarrassment in . . . social and community relationships” 

as among the consequences of disclosure that “must be 

given great weight.” Ray, 502 U.S. at 176-77 & n.12 (citation omitted) (applying Exemption 6). 

 These concerns are compounded in the mandatory-disclosure context because they translate directly 

into speech-deterrence. For obvious reasons, publishing someone’s name and address online—linked with 

a specific political or ideological viewpoint—has the inherently chilling effect of stripping her of “the privacy 

interest in keeping personal facts away from the public 

eye.” Reporters Comm. for Freedom of Press, 489 U.S. at 

769. This Court has held the threat to privacy to be 

“implicit” even in the non-public “accumulation of vast 

amounts of personal information in computerized data 

banks or other massive government files.” Whalen, 429 

U.S. at 605. That threat is magnified where, as here, 

data banks are created with worldwide access in mind. 

Even if the potential for harm may be “impossible to 

measure,” Ray, 502 U.S. at 176, for many ordinary citizens “privacy of belief ” is sacred, Buckley, 424 U.S. at 

66. 

 
22 

II. Whether the electioneering-communication 

law satisfies heightened First Amendment 

review is a substantial question. 

 Under any meaningful level of First Amendment 

scrutiny, it is far from clear that the electioneeringcommunication law comports with the Constitution. 

The government’s claimed interest in regulating independent speech—providing voters with “information” 

about the speaker—cannot be squared with the First 

Amendment. Nor has the government shown that its 

reporting system materially advances that interest. 

Particularly as applied to independent, non-electoral 

speech like Appellant’s, the law’s constitutionality 

raises a substantial question. 

A. The government’s asserted informational 

interest breaks with First Amendment 

principles. 

 The government’s “informational interest,” the 

main interest it claimed below, cannot justify burdening independent speech. FEC Mem. in Supp. of Mot. for 

Summ. J. & Opp. to Pl.’s Mot. for Summ. J. 21-24, 14-

cv-1500 (Dkt. No. 42).3 Far from being substantial, this 

3

 The government also suggested—and the district court accepted—that the electioneering-communication law helps the 

FEC “ensure that foreign nationals or foreign governments do not 

seek to influence United States’ elections.” Jurisdictional Statement App. 32 (citing 52 U.S.C. § 30121(a)(1)(C)). But the ban on 

politicking by foreign nationals does not extend to speech, like Appellant’s, “that does not expressly advocate the election or defeat 

of a specific candidate.” Bluman v. FEC, 800 F. Supp. 2d 281, 284 

(D.D.C. 2011), aff ’d, 132 S. Ct. 1087 (2012); see also FEC Mot. to 
23 

interest parts ways with the First Amendment at a 

foundational level. 

 Even as described in opinions upholding it, the informational interest raises red flags. It originated in 

Buckley, where the Court ratified the government’s interest in “provid[ing] the electorate with information 

‘as to where political campaign money comes from and 

how it is spent by the candidate’ in order to aid the 

voters in evaluating those who seek federal office.” 424 

U.S. at 66-67 (footnote omitted). In McConnell v. FEC, 

the Court held more broadly that the government has 

an interest in helping “citizens seeking to make informed choices in the political marketplace.” 540 U.S. 

93, 197 (2003) (citation omitted), overruled on other 

grounds by Citizens United, 558 U.S. 310. Then, in 

Citizens United, the Court said that the public’s “interest in knowing who is speaking about a candidate 

shortly before an election” is grounds enough for mandatory disclosure. 558 U.S. at 369. Mandatory disclosure, the Court reasoned, helps listeners “react” to 

speech in “a proper way,” “make informed decisions,” 

and give “proper weight to different speakers and messages.” Id. at 371; see also Jurisdictional Statement 

Dismiss or Affirm 21, Bluman, 132 S. Ct. 1087 (No. 11-275) 

(stating that foreign-national provision “does not limit any alien’s 

ability to engage in issue advocacy”). The district court also volunteered that the law “deter[s] actual corruption and avoid[s] the 

appearance of corruption.” Jurisdictional Statement App. 32 

(quoting Buckley, 424 U.S. at 67). But electioneering communications “do not give rise to corruption or the appearance of corruption.” See Citizens United, 558 U.S. at 357. 
24 

App. 31-32 (approving governmental interest in “monitoring” speech). 

 Nowhere else has this Court endorsed a governmental interest in “help[ing]” private audiences give 

“proper weight” to messages conveyed by private 

speakers on matters of public note. See Citizens 

United, 558 U.S. at 367, 371. Quite the opposite; “[t]he 

very purpose of the First Amendment is to foreclose 

public authority from assuming a guardianship of the 

public mind through regulating the press, speech, and 

religion.” Thomas v. Collins, 323 U.S. 516, 545 (1945) 

(Jackson, J., concurring); see also id. (“In this field, 

every person must be his own watchman for truth.”); 

cf. United States v. Alvarez, 132 S. Ct. 2537, 2547 (2012) 

(plurality opinion). That is no less true when lawmakers opt to label speech “express advocacy,” “electioneering communications,” or anything else. That the Court 

has accepted the government’s informational interest 

as not just legitimate but “substantial” only underscores how alien to the First Amendment the Court’s 

mandatory-disclosure precedent has become. 

B. The electioneering-communication law 

is not tailored to serve the informational interest. 

 Even if the government’s informational interest 

were substantial, the electioneering-communication 

law still would be suspect. For any independent speech, 

it is far from clear why requiring supporters to divulge 

their names and addresses helps their fellow citizens 
25 

“make informed choices in the political marketplace.” 

McConnell, 540 U.S. at 197. Analogizing again to FOIA 

cases, the Court there maintains that disclosing government employees’ addresses “would not appreciably 

further ‘the citizens’ right to be informed about what 

their government is up to’ ”; would “reveal little or 

nothing about the employing agencies or their activities”; and “would not in any meaningful way open 

agency action to the light of public scrutiny.” Fed. Labor Relations Auth., 510 U.S. at 497-98 (citations omitted). In short, the “FOIA-related public interest in 

disclosure” of this information is “virtually nonexistent.” Id. at 500. 

 The Court’s contrary approach when it comes to 

private speakers and their allies inverts the “special 

constitutional solicitude” that First Amendment rights 

enjoy. Widmar v. Vincent, 454 U.S. 263, 276 (1981). A 

speech-burdening law that “provides only the most 

limited incremental support for the interest asserted” 

cannot withstand constitutional scrutiny. Bolger, 463 

U.S. at 73. Yet four decades after enactment of the Federal Election Campaign Act, the government has yet to 

show how its mandatory-disclosure laws materially 

advance its informational interest. 

 Consider the leading cases. In Buckley, the government viewed “[t]he virtue of public disclosure in this 

area” as “too obvious to require extended discussion.” 

FEC & Att’y Gen. Br. 29, Buckley, 424 U.S. 1 (No. 75-

436). Having announced that the government’s interests “must be weighed carefully” against the burdens 

of forced disclosure, the Court then signed off on the 
26 

mandatory-disclosure system with little more than a 

sentence: “In this process, we note and agree with appellants’ concession that disclosure requirements certainly in most applications appear to be the least 

restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.” 

Buckley, 424 U.S at 68; see also id. at 81-82. In McConnell, the Court said little more than that “Buckley

amply supports application of . . . disclosure requirements to the entire range of ‘electioneering communications.’ ” 540 U.S. at 196. In Citizens United, the Court 

did not consider tailoring at all. 558 U.S. at 367-71. 

 In any other First Amendment case, the Court 

would demand far more of the government. And as applied to speech like Appellant’s, the government’s 

means-end fit is at its weakest. Under the electioneering-communication law, Appellant must report the 

name and address of every person who gives $1,000 toward a radio ad that is independent of any candidate, 

that does not advocate for or against anyone, and that 

does not take a stance on anyone’s campaign. Even 

if the ad contained explicit electoral advocacy, the 

government has not demonstrated why divulging supporters’ names—much less their addresses— 

materially advances its informational interest. Appellant’s ad is steps removed from any candidate and any 

election, making the electioneering-communication 

law especially suspect here. If anything, the law would 

seem to disserve the government’s informational interest, since it would require Appellant to categorize its 
27 

non-electoral message, misleadingly, as “electioneering.” 

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

CONCLUSION 

 The Court should note probable jurisdiction. 

Respectfully submitted, 

ILYA SHAPIRO

CATO INSTITUTE

1000 Mass. Ave., N.W. 

Washington, DC 20001 

(202) 842-0200 

January 9, 2017 

PAUL M. SHERMAN*

SAMUEL B. GEDGE

INSTITUTE FOR JUSTICE

901 North Glebe Road 

Suite 900 

Arlington, VA 22203 

(703) 682-9320 

psherman@ij.org 

*Counsel of Record