UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
INDEPENDENCE INSTITUTE,
Plaintiff,
v. Civil Action No. 14-1500 (CKK)
FEDERAL ELECTION COMMISSION,
Defendant.
MEMORANDUM OPINION
(October 6, 2014)
Plaintiff Independence Institute, a Colorado non-profit organization, brought this action
against Defendant Federal Election Commission (“FEC”), seeking declaratory and injunctive
relief declaring that the disclosure provisions of the Bipartisan Campaign Reform Act of 2002
(“BCRA”) are unconstitutional as applied to a specific radio advertisement that Plaintiff plans to
run before the November 4, 2014, federal elections. Presently before the Court are Plaintiff’s
[3] Application for a Three Judge Court and Plaintiff’s [5] Motion for Preliminary Injunction. In
the interest of expediting the resolution of this action, the parties agreed that the Court would
rule on the merits of the Complaint as opposed to the preliminary injunction. Upon consideration
of the pleadings, 1 the relevant legal authorities, and the record as a whole, the Court DENIES
1
Compl., ECF No. [1] (“Compl.”); Pl.’s Application for a Three Judge Court and Mem. in
Support, ECF No. [3] (“Pl.’s App.”); Pl.’s Mot. for Prelim. Inj. and Mem. in Support, ECF
No. [5] (“Pl.’s Mot.”); Joint Stipulation of the Parties and Order of the Court as to the Scope of
Pl.’s Allegations and Claims, ECF No. [13] (“Joint Stip.”); Def. Federal Election Comm’n’s
Opp’n to Pl.’s Application for a Three-Judge Court, ECF No. [16] (“Def.’s 3-Judge Opp’n”);
Plaintiff’s Reply Mem. on Application for a Three Judge Court, ECF No. [17] (“Pl.’s 3-Judge
Reply”); Def. Federal Election Comm’n’s Mem. of Law in Opp’n to Pl.’s Mot. for Prelim. Inj.,
ECF No. [19] (“Def.’s Opp’n”); Brief Amici Curiae of Campaign Legal Center, Democracy 21
1
Plaintiff’s motions. Plaintiff’s claims are foreclosed by clear United States Supreme Court
precedent, principally by Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
See id. at 366-71. Having considered the merits of this dispute, the Court enters JUDGMENT for
Defendant. Accordingly, this action is DISMISSED in its entirety.
I. BACKGROUND
A. Factual and Procedural Background
Independence Institute is a nonprofit corporation that “conducts research and educates
the public on various aspects of public policy—including taxation, education policy, health care,
and justice policy.” Compl. ¶ 2. Independence Institute plans to produce a radio advertisement
that will ask the current United States senators from Colorado, Mark Udall and Michael Bennet,
to support the Justice Safety Valve Act. 2 Id. ¶¶ 3, 31, 32. Senator Udall is up for reelection on
and Public Citizen, Inc. in Support of Def. and in Opp’n to Pl.’s Mot. for Prelim. Inj., ECF No.
[21] (“Amici Br.”); and Pl.’s Reply, ECF No. [22] (“Pl.’s Reply”).
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f). Moreover, holding a hearing would
not be consistent with the Court’s commitment to expediting these proceedings in light of the
timing of the upcoming elections.
2
The verbatim text of the proposed radio advertisement is as follows:
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.
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.
2
November 4, 2014. Id. ¶¶ 31, 41. Plaintiff agrees that its planned advertisement meets BCRA’s
definition of an “electioneering communication” and that, therefore, the statute requires it to
disclose contributors. Id. ¶ 4; Pl.’s Mot. at 4. However, Plaintiff claims that the disclosure
requirement is overbroad as applied to the radio advertisement that it plans to run. Compl.
¶¶ 114, 129. In particular, Plaintiff argues that the disclosure requirements of BCRA section 201
are overbroad as applied because the advertisement is genuine issue advocacy rather than express
advocacy or the functional equivalent thereof. See Pl.’s Mot. at 17, 22-23. Plaintiff also
emphasizes that the Independence Institute is organized pursuant to section 501(c)(3) of the
Internal Revenue Code and that the content of the advertisement is not pejorative towards
Senator Udall. Id. at 18, 23. As discussed below, Plaintiff’s arguments are unavailing.
Plaintiff brought this action seeking declaratory and injunctive relief with respect to the
advertisement it plans to run. Plaintiff seeks to have the merits adjudicated by a three-judge
court. Plaintiff also filed a motion for preliminary injunction because the 60-day window before
the November election, during which BCRA’s requirements apply, had already begun. In the
interest of expediting the resolution of the case, the parties agreed to consolidate briefing on the
preliminary injunction with briefing on the merits, relying initially on Plaintiff’s merits
arguments with respect to the preliminary injunction. Joint Stip. at 1-2. The parties further
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.
Compl. ¶ 35.
3
agreed, “in light of Plaintiff Independence Institute’s agreement not to supplement its Motion for
Preliminary Injunction (Docket No. 5) with supplemental substantive briefing or evidence, for
the Court to consider Plaintiff’s Motion for Preliminary Injunction as a Motion for Summary
Judgment and to follow the briefing schedule” previously set by the Court with respect to the
preliminary injunction. Id. The parties also stipulated that “this case presents an as-applied
challenge to 52 U.S.C. § 30104(f)(1)-(2) based upon the content of the Independence Institute’s
intended communication, and not the possibility that its donors will be subject to threats,
harassment, or reprisals.” Id. at 1.
B. Legal Background
1. Statutory Framework
The Bipartisan Campaign Reform Act of 2002, 116 Stat. 81, amended the Federal
Election Campaign Act of 1971 (“FECA”), as well as other statutory provisions. McConnell v.
Fed. Election Comm’n, 540 U.S. 93, 114 (2003), overruled on other grounds by Citizens United,
558 U.S. at 310. In addition to other requirements, BCRA mandates certain disclosures
pertaining to “electioneering communications.” See Citizens United, 558 U.S. at 366. “An
electioneering communication is defined as ‘any broadcast, cable, or satellite communication’
that ‘refers to a clearly identified candidate for Federal office’ and is made within 30 days of a
primary or 60 days of a general election.” 3 Id. at 321 (quoting 2 U.S.C. § 434(f)(3)(A), now
codified at 52 U.S.C. § 30104(f)(3)(A)).
Pursuant to BCRA section 201, “any person who spends more than $10,000 on
electioneering communications within a calendar year must file a disclosure statement with the
3
The definition is further specified by regulation. See Citizens United, 558 U.S. at 321. Plaintiff
does not dispute that the advertisement at issue satisfies the statutory and regulatory criteria. See
Pl.’s Mot. at 3-4.
4
FEC.” 4 Id. at 366. “That statement must identify the person making the expenditure, the amount
of the expenditure, the election to which the communication was directed, and the names of
certain contributors.” Id. The reporting of contributions is limited to “contributors who
contributed an aggregate amount of $1,000 or more.” 5 52 U.S.C. § 30104(f)(2)(E), (F). In
McConnell, the Supreme Court upheld section 201’s disclosure provisions against a facial
challenge. See 540 U.S. at 197. But the Supreme Court did not “foreclose possible future
challenges to particular applications of that requirement.” Id. at 199. In Citizens United, in an as-
applied challenge, the Supreme Court upheld the section 201 disclosure requirement “as applied
to the ads for the movie [Hillary] and to the movie itself.” 558 U.S. at 367.
In addition, BCRA section 203 originally prohibited corporations and unions from
spending general treasury funds to finance electioneering communications, as defined in the
Act. 6 McConnell, 540 U.S. at 204. After having upheld this provision against a facial challenge
in McConnell, see id. at 209, the Supreme Court invalidated the expenditure prohibition as
related to corporations and unions in Citizens United, see 558 U.S. at 318-19. Even though
section 203 is not at issue in this litigation, it provides the context for the case law that resolves
this dispute.
4
For the purposes of BCRA section 201, “persons” includes corporations and labor unions,
including nonprofit corporations like Plaintiff. See McConnell, 540 U.S. at 194-95.
5
For funds paid out of a segregated bank account, only contributors to that account must be
disclosed. 52 U.S.C. § 30104(f)(2)(E). For other funds, disclosures are required only for
“contributors who contributed . . . to the person making the disbursement.” Id. § 30104(f)(2)(F).
Although the parties dispute the ramifications of this distinction, the Court need not address it
further because it is immaterial to the resolution of this action.
6
“Section 203 of BCRA amends FECA § 316(b)(2) to extend this rule [prohibiting the spending
of general treasury funds], which previously applied only to express advocacy, to all
‘electioneering communications.’ ” McConnell, 540 U.S. at 204.
5
2. Three-Judge Court
Pursuant to BCRA section 403(a)(3), “any action [] brought for declaratory or injunctive
relief to challenge the constitutionality of any provision of [the] Act . . . shall be heard by a 3-
judge court,” in accordance with 28 U.S.C. § 2284. 52 U.S.C. 30110 note. The statute leaves the
district judge with “the vexing initial determination of whether an action is required to be heard
and determined by a three-judge court.” Feinberg v. Federal Deposit Ins. Corp., 522 F.2d 1335,
1338 (D.C. Cir. 1975) (construing 28 U.S.C. § 2284). “A single district judge need not request
that a three-judge court be convened if a case raises no substantial claim or justiciable
controversy. . . . Constitutional claims may be regarded as insubstantial if they are ‘obviously
without merit,’ or if their ‘unsoundness so clearly results from the previous decisions of (the
Supreme Court) as to foreclose the subject and leave no room for the inference that the question
sought to be raised can be the subject of controversy.’ ” Id. at 1338-39 (citations omitted). See
Schonberg v. Fed. Election Comm’n, 792 F. Supp. 2d 14, 17 (D.D.C. 2011) (applying the D.C.
Circuit’s interpretation of section 2284 in Feinberg to BCRA § 403(a)). The Court concludes that
Plaintiff’s challenge is “clearly foreclosed by Supreme Court precedent.” Rufer v. Fed. Election
Comm’n, --- F. Supp. 2d ---, Nos. 14-cv-837, 14-cv-853, 2014 WL 4076053, at * 1 (D.D.C. Aug. 19,
2014). Accordingly, based on the reasoning and conclusions stated in this opinion, the Court denies
the application for a three-judge court and resolves the merits of this dispute today.
II. DISCUSSION
This dispute can be distilled to the application of the Supreme Court’s clear instructions
in Citizens United: in no uncertain terms, the Supreme Court rejected the attempt to limit
BCRA’s disclosure requirements to express advocacy and its functional equivalent. See 558 U.S.
at 369. Plaintiff in this case seeks the same relief that has already been foreclosed by Citizens
United. Plaintiff’s efforts to distinguish this challenge from that in Citizens United are futile.
6
Moreover, it is clear that the additional precedent that Plaintiff attempts to enlist provides no
more assistance to it than does Citizens United. Accordingly, Plaintiff’s arguments lack merit.
A. Citizens United
In Citizens United, in a section that eight justices joined, the Supreme Court concluded
that there was no constitutional defect in applying the disclosure requirements of BCRA
section 201 to specific electioneering communications that were neither express advocacy nor
the functional equivalent thereof. 7 Citizens United, 558 U.S. at 367-69. The Supreme Court used
clear language without any explicit or implicit constraints:
As a final point, Citizens United claims that, in any event, the disclosure
requirements in § 201 must be confined to speech that is the functional equivalent
of express advocacy. The principal opinion in [Federal Election Commission v.
Wisconsin Right to Life, Inc., 551 U.S. 449 (2007),] limited 2 U.S.C. § 441b’s
restrictions on independent expenditures to express advocacy and its functional
equivalent. Citizens United seeks to import a similar distinction into BCRA’s
disclosure requirements. We reject this contention.
Id. at 368-69 (citation omitted) (emphasis added). Despite this unambiguous language, Plaintiff
attempts to argue that Citizens United does not determine the outcome of this case. Plaintiff first
argues that this language was dicta and therefore not binding on this Court. Plaintiff next argues
that, even if this language is binding, it does not govern the outcome of this challenge because
Citizens United was an as-applied challenge addressing materially different facts. Specifically,
Plaintiff offers what amounts to three distinctions: (i) that it is a 501(c)(3) organization while
Citizens United is a 501(c)(4) organization; (ii) that its advertisement is not the functional
equivalent of express advocacy while the ads in Citizens United, in Plaintiff’s estimation, were
7
“ ‘[A] court should find that [a communication] is the functional equivalent of express
advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote
for or against a specific candidate.’ ” Citizens United, 558 U.S. at 324-325 (quoting Fed.
Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 559, 469-70 (2007)) (alterations in
original).
7
the equivalent of express advocacy; and (iii) that its advertisement has no positive or negative
references to a candidate while the advertisement in Citizens United referred to a candidate
pejoratively. None of these distinctions have the effect Plaintiff desires, and Citizens United still
governs this matter. The Court addresses these arguments in turn.
1. Citizens United as Binding Precedent
With respect to the argument that Citizens United’s discussion of disclosures is not
binding, Plaintiff relies heavily on one opinion from the Seventh Circuit Court of Appeals,
Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014), which states that Citizen
United’s discussion of disclosures was dicta. 8 See Pl. Mot. at 15; Pl. 3-Judge Reply at 2-3 (citing
Barland, 751 F.3d at 836). In Barland, the Seventh Circuit panel notes, referring to the Supreme
Court, that “the Court declined to apply the express-advocacy limitation to the federal disclosure
and disclaimer requirements for electioneering communications” and concludes that “[t]his was
dicta.” 751 F.3d at 836.
But in the same opinion, the Seventh Circuit panel ultimately concludes that the
discussion of disclosures in Citizens United is binding with respect to BCRA section 201.
Immediately after the statement that the relevant portion of Citizens United was dicta, the court
in Barland states that “the Supreme Court’s dicta must be respected, and on the strength of this
part of Citizens United, we said in [Center for Individual Freedom v.] Madigan that the
‘distinction between express advocacy and issue discussion does not apply in the disclosure
context.’ ” Id. (quoting Center for Individual Freedom v. Madigan, 697 F.3d 464, 484 (7th Cir.
2012)). Notwithstanding its comment regarding dicta, the Seventh Circuit panel agrees that, as a
8
Plaintiff appears to have abandoned this argument in its Reply, focusing instead on showing
that Citizens United is “distinct” from the facts of this case. Pl.’s Reply at 9; see id. at 9-17.
Nonetheless, this opinion addresses both arguments for the sake of completeness.
8
result of the Supreme Court’s discussion of disclosures in Citizens United, the express-advocacy
limitation does not apply to the disclosure system established by BCRA. 9 See id.
Moreover, Barland’s categorization of the discussion of disclosures in Citizens United as
dicta is based upon a misunderstanding. That categorization relies on the Seventh Circuit panel’s
finding that the “[Supreme] Court had already concluded that Hillary and the ads promoting it
were the equivalent of express advocacy.” Id. (emphasis added). But this statement is not
supported by the Supreme Court’s own language as it relates to the Hillary advertisements.
Although the Citizens United Court had determined that Hillary: The Movie was “equivalent to
express advocacy,” Citizens United, 558 U.S. at 325, the Court had made no such determination
with respect to the Hillary advertisements. Plaintiff does not even attempt to indicate where in
Citizens United the Supreme Court held that the advertisements were the functional equivalent of
9
After opining that Citizen United’s discussion of disclosures was dicta, the Seventh Circuit
panel contrasted the disclosure regime in BCRA section 201 with the state disclosure scheme
that it was considering in Barland:
This aspect of Citizens United must be understood in proper context. The Court’s
language relaxing the express-advocacy limitation applies only to the specifics of
the disclosure requirement at issue there. The Court was addressing the onetime,
event-driven disclosure rule for federal electioneering communications, a far more
modest disclosure requirement than the comprehensive, continuous reporting
regime imposed on federal PACs, or even the less burdensome disclosure rule for
independent expenditures. When the Court said that ‘disclosure is a less restrictive
alternative to more comprehensive regulations of speech,’ Citizens United, 558
U.S. at 369, it was talking about the disclosure requirement for electioneering
communications. In that specific context, the Court declined to apply the express-
advocacy limiting principle. But nothing in Citizens United suggests that the
Court was tossing out the express-advocacy limitation for all disclosure systems,
no matter how burdensome.
Barland, 751 F.3d at 836 (citations omitted). Accordingly, the Seventh Circuit agrees that the
“express-advocacy limitation” does not apply to the disclosure provisions challenged in this
action.
9
express advocacy. 10 See Pl.’s Reply at 10. Given that the Supreme Court did not determine that
the Hillary advertisements were the equivalent of express advocacy, its refusal to import the
express advocacy limitation to the disclosure context was not dicta but a holding—a holding that
ultimately encompasses the facts in this case.
Indeed, numerous other Circuit courts beyond the Seventh Circuit have determined that
Citizens United’s language forecloses the suggestion that disclosure requirements must be
limited to express advocacy and its functional equivalent. See, e.g., Nat’l Org. for Marriage v.
McKee, 649 F.3d 34, 54-55 (1st Cir. 2011) (“We find it reasonably clear, in light of Citizens
United, that the distinction between issue discussion and express advocacy has no place in First
Amendment review of these sorts of disclosure-oriented laws.); Vermont Right to Life Comm.,
Inc. v. Sorrell, 758 F.3d 118, 132 (2d Cir. 2014) (“Citizens United removed any lingering
uncertainty concerning the reach of constitutional limitations in this context. In Citizens United,
the Supreme Court expressly rejected the ‘contention that the disclosure requirements must be
limited to speech that is the functional equivalent of express advocacy,’ because disclosure is a
less restrictive strategy for deterring corruption and informing the electorate.” (quoting Citizens
United, 558 U.S. at 369) (citation and footnotes omitted)); Human Life of Wash. Inc. v.
Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) (“Given the Court’s analysis in Citizens United,
and its holding that the government may impose disclosure requirements on speech, the position
that disclosure requirements cannot constitutionally reach issue advocacy is unsupportable.”)
(emphasis added). By contrast, Plaintiff can point to no Court of Appeals decision that has
10
Even in the face of the assertions by Defendant and by amici that the Supreme Court opinion
does not support such a conclusion, Plaintiff simply relies on the fact that the Seventh Circuit
panel had erroneously conflated the movie and the advertisements in its analysis. See Pl.’s Reply
at 10 (quoting Barland, 751 F.3d at 823). This Court cannot rely on a decision in the Seventh
Circuit when the Supreme Court’s own language contradicts the conclusion.
10
reached a contrary conclusion, including the Seventh Circuit. 11 Therefore, the Supreme Court’s
conclusion in Citizens United with respect to disclosures under BCRA section 201 is binding
precedent.
2. Tax Status Is Immaterial
Independence Institute next argues that its status as a section 501(c)(3) organization
under the Internal Revenue Code, whereas Citizens United is a section 501(c)(4) organization,
requires a different result from Citizens United. But this is a distinction without a difference.
Most importantly, nothing in Citizens United’s discussion of disclosures of contributions cabins
the Supreme Court’s holding to certain types of organizations. See Citizens United 558 U.S. at
367-70. Insofar as Plaintiff argues that the election disclosure requirements ought to be different
for section 501(c)(3) organizations and section 501(c)(4) organizations because the tax code
differentiates among them with respect to disclosures, this argument has no basis. Neither type of
nonprofit organization is obligated by federal tax law to disclose donor information. See 26
U.S.C. § 6104(d)(3)(A); Amici Br. at 22-23.
Plaintiff also points to the Supreme Court’s statement that “Citizens United has been
disclosing its donors for years” while the Independence Institute has not. Pl.’s Mot. at 18.
However, the purpose of the Supreme Court’s statement was only to note that Citizens United
had “identified no instance of harassment or retaliation” in its years of disclosing donors, thus
defeating the argument that it could not be mandated to disclose because of “a reasonable
probability that the group’s members would face threats, harassment, or reprisals if their names
11
Plaintiff attempts to show that the cases from other circuits on which Defendant relies are
distinguishable from the facts in this as-applied challenge. See Pl.’s Reply at 13-15. But, putting
aside the merits of Plaintiff’s attempt to distinguish these cases, Plaintiff does not address the
fact that these opinions treat the Supreme Court’s clear conclusion with respect to disclosures as
binding.
11
were disclosed.” Citizens United, 558 U.S. at 370 (citing McConnell, 540 U.S. at 198). However,
such a probability is not an issue in this action because the parties have stipulated to that effect.
Joint Stip. at 1. Accordingly, the Supreme Court’s statement that Citizens United had been
disclosing donors for years does not suggest a different outcome for the Independence Institute.
Ultimately, Plaintiff’s effort to draw a line between different types of nonprofit
organizations is not supported by any citation to authority that such a distinction would be
required by the First Amendment. There is no reason to conclude that Citizens United’s clear
refusal to import the express advocacy-issue advocacy distinction into the disclosure context
should be limited to advocacy by certain types of nonprofit organizations. 12
3. Categorization of Advertisements as Express Advocacy or Issue Advocacy Is
Immaterial
Plaintiff next argues that “Citizens United is distinct because it contemplated
advertisements which could be fairly characterized as the functional equivalent of express
advocacy.” Pl.’s Reply at 9. Even aside from the merits of this characterization of the
advertisement in Citizens United, this argument cannot prevail. When considering Citizens
United’s advertisements, the Supreme Court refused to draw a line between express advocacy
and issue advocacy in the BCRA disclosure context. Citizens United, 558 U.S. at 368-69. In
plain language, the Supreme Court stated that whether an electioneering communication is
12
Plaintiff is correct that the Federal Election Commission had promulgated a regulation in 2003
that exempted 501(c)(3) organizations from the disclosure requirements in section 201. Shays v.
Fed. Election Comm’n, 337 F. Supp. 2d 28, 38, 125 (D.D.C. 2004), aff’d 414 F.3d 76 (D.C. Cir.
2005). Plaintiff is also correct that this regulation failed review pursuant to the Administrative
Procedure Act because the agency “failed to conduct a ‘reasoned analysis’ ” as required. Id. at
127. But the Court’s conclusion in Shays does not support the assumption that Citizens United’s
holding was implicitly limited to certain types of organizations. See id. at 128 (finding fault with
the FEC’s failure to consider potential problems that might emerge by effectively delegating the
enforcement of election law to the IRS). See also Amici Br. at 11-13.
12
express advocacy or issue advocacy does not determine whether BCRA’s disclosure requirement
can be lawfully applied. Accordingly, even if it were clear that the advertisements in Citizens
United were express advocacy and the one in this case were issue advocacy, the Supreme Court’s
holding in Citizens United would nonetheless resolve this dispute. 13
In an attempt to counter Defendant’s argument that the advertisements at issue in Citizens
United were not, in fact, express advocacy, Plaintiff adopts another approach. Plaintiff looks to
Citizens United’s reference to the Hillary advertisements as advocating a commercial
transaction, in other words watching Hillary: The Movie. Pl.’s Reply at 11-12. Plaintiff argues
that, if anything, this reference suggests that the Hillary advertisements deserved the reduced
First Amendment protections afforded commercial speech. See id. This reference cannot be
excised from its context. Responding to an argument that “an informational interest” did not
apply to the Hillary advertisements, the Supreme Court concluded: “Even if the ads only pertain
to a commercial transaction, the public has an interest in knowing who is speaking about a
candidate shortly before an election. Because the informational interest alone is sufficient to
justify application of § 201 to these ads, it is not necessary to consider the Government’s other
asserted interests.” Citizens United, 558 U.S. at 369. In other words, even though the
advertisement encourages someone to watch the movie rather than vote for a candidate, the
public interest still supports disclosure of “who is speaking about a candidate.” In no sense does
this language imply that the Supreme Court determined that this speech deserved only the lesser
13
Moreover, the Court doubts that the advertisements in Citizens United could satisfy the strict
standard for being considered the functional equivalent of express advocacy. See Citizens United,
558 U.S. at 324-25 (“[A] court should find that [a communication] is the functional equivalent of
express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal
to vote for or against a specific candidate.” (quoting Fed. Election Comm’n v. Wisconsin Right to
Life, Inc., 551 U.S. 449, 469-70 (2007)) (alterations in original)).
13
First Amendment protections of commercial speech, “that is, expression related solely to the
economic interests of the speaker and its audience.” Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n of New York, 447 U.S. 557, 561 (1980). In any event, with respect to Plaintiff’s
attempt to distinguish its advertisement from that of Citizens United, the reference to a
commercial transaction does not alter the Supreme Court’s clear conclusion: whether speech is
express advocacy or issue advocacy does not affect the lawful applicability of BCRA’s
disclosure requirements.
4. “Pejorative” Tone of the Hillary Advertisements Is Immaterial
Plaintiff next argues that Citizens United’s clear conclusion with respect to BCRA’s
disclosure requirements ought to be limited to advertisements like the ones before the Supreme
Court in that case, which spoke “pejoratively” about a candidate, rather than “genuine issue
speech,” as Plaintiff characterizes its proposed ad. See Pl.’s Reply at 14, 15-16. The Court does
not disagree that the Hillary advertisements could be considered critical of then-candidate
Hillary Clinton, while the advertisement in this action, on its face, says nothing positive or
negative about a candidate for Federal office. But this is a distinction without a difference.
Notwithstanding Citizen United’s two references to the advertisements as pejorative, the
language in Citizens United does not suggest that the pejorative nature of the advertisements in
any way was important to the conclusion with respect to disclosures. The disclosures holding is
neither explicitly nor implicitly limited to certain types of advertisements. See Citizens United,
558 U.S. at 368-69 (“Citizens United seeks to import a similar distinction into the BCRA’s
14
disclosure requirements. We reject this contention.”). Examining the two references in context
confirms that the disclosure discussion is not limited by those references. 14
In introducing the factual background of the case, the Supreme Court, within the first
pages of the opinion, describes the advertisements: “Each ad includes a short (and, in our view,
pejorative) statement about Senator Clinton, followed by the name of the movie and the movie’s
Website address.” Id. at 320. This reference is separated from the discussion of the disclosure
requirements by approximately 47 pages of the United States Reports, and nothing in either
portion of the opinion suggests that the former reference is imported into the latter discussion.
Moreover, the parenthetical phrasing of that reference suggests an aside rather than a core
element of the Supreme Court’s legal analysis.
When the Supreme Court turns to its analysis of the disclosure and disclaimer
requirements, it describes the advertisements factually once again: “The ads fall within BCRA’s
definition of an ‘electioneering communication’: They referred to then-Senator Clinton by name
shortly before a primary and contained pejorative references to her candidacy.” Id. at 368. In
fact, the quoted language pertains to the discussion of BCRA section 311’s disclaimer
requirements, not section 201’s disclosure requirements. Even though the discussions of section
311 and section 201 are located in the very same section of the opinion, the text of the opinion
does not even hint that the Supreme Court meant to limit the disclosures holding by the adjective
“pejorative.”
Moreover, Plaintiff’s claim that “Justice Kennedy use[d] the word ‘pejorative’ in every
instance in which the Court discusses the ads for Hillary: The Movie,” Pl.’s Reply at 15, does not
14
Notwithstanding Plaintiff’s assertion to the contrary, see Pl.’s Mot. at 16, these two references
also do not suggest that the Citizens United Court considered the Hillary ads to be the functional
equivalent of express advocacy.
15
withstand scrutiny. Variations on the word “advertisement” show up in Justice Anthony
Kennedy’s opinion well over twenty times. Only the two times discussed in this section does he
use the word pejorative. In sum, while the Hillary advertisements may very well have been
pejorative in a way that Plaintiff’s advertisement is not, there is nothing in Citizens United
limiting the disclosures holding to electioneering communications that are pejorative (or,
alternatively, complimentary) on their face.
B. Alternative precedent
Arguing that Citizens United does not determine the outcome of this case, Plaintiff relies
on alternative Supreme Court precedent to assert that the application of BCRA section 201’s
disclosure requirements to its advertisement is unconstitutional. In particular, Plaintiff cites to
Buckley v. Valeo, 424 U.S. 1 (1976), and Federal Election Commission v. Wisconsin Right to
Life, Inc. (“WRTL II”), 551 U.S. 449 (2007), both decided prior to Citizens United, to argue that
section 201’s disclosure requirements may be applied constitutionally only to communications
that contain express advocacy, or its functional equivalent. In fact, those cases do not indicate
that result. Because Citizens United does foreclose Plaintiff’s claim, the other cases Plaintiff cites
are at best background. Even so, examining them reinforces the conclusion that they do not
suggest a different outcome from Citizens United.
1. Buckley v. Valeo
Plaintiff primarily relies on Buckley v. Valeo, 424 U.S. 1 (1976), which resolved a facial
challenge to the Federal Election Campaign Act (“FECA”), to argue that, in the absence of
Citizens United, Buckley’s distinction between express advocacy and issue advocacy resurfaces
in the context of the disclosure requirements of BCRA section 201. See Pl.’s Mot. at 10.
However, that dichotomy emerged only as part of the Buckley Court’s analysis of a particular
16
statute, FECA (BCRA’s predecessor), that is distinguishable from BCRA. Furthermore, the state
interests in favor of disclosure that were highlighted in Buckley, in fact, support the disclosure
requirements challenged in this case.
In upholding BCRA’s disclosure requirements against a facial challenge, 15 McConnell
explains why Plaintiff’s reliance on Buckley is unavailing. See 540 U.S. at 196. First, contrary to
Plaintiff’s contention, Buckley actually supports BCRA’s disclosure requirements. The
McConnell Court emphasized that
the important state interests that prompted the Buckley Court to uphold FECA’s
disclosure requirements—providing the electorate with information, deterring
actual corruption and avoiding any appearance thereof, and gathering the data
necessary to enforce more substantive electioneering restrictions—apply in full to
BCRA. Accordingly, Buckley amply supports application of FECA § 304’s
disclosure requirements to the entire range of ‘electioneering communications.’ ”
Id. (emphasis added). This language prevents Plaintiff from wielding Buckley as a sword against
BCRA’s disclosure requirements. McConnell’s status as a facial challenge is not to the contrary:
the Supreme Court’s understanding of the relevant case law, on which it relied in upholding the
statute against that facial challenge, is unambiguous and directly contradicts Plaintiff’s argument.
Second, McConnell explains that Buckley did not introduce a division between express
advocacy and issue advocacy as a constitutional matter, as Plaintiff suggests:
[A] plain reading of Buckley makes clear that the express advocacy limitation, in
both the expenditure and the disclosure contexts, was the product of statutory
interpretation rather than a constitutional command. In narrowly reading the
FECA provisions in Buckley to avoid problems of vagueness and overbreadth, we
15
McConnell forthrightly “rejected the notion that the First Amendment requires Congress to
treat so-called issue advocacy differently from express advocacy.” Id. at 194. The Court need not
determine the effective scope of this language—given that McConnell rejected a facial challenge
but did “not foreclose possible future challenges to particular applications of that requirement”—
because Citizens United came to the same conclusion in an as-applied challenge that
encompasses the action before the Court now. McConnell, 540 U.S. at 199.
17
nowhere suggested that a statute that was neither vague nor overbroad would be
required to toe the same express advocacy line.
Id. at 191-92. Buckley’s division between express advocacy and issue advocacy emerged from
the Supreme Court’s reading of a particular statute—one notably different from BCRA—in order
to avoid constitutional defects with the statute. McConnell further explains how the Buckley
Court derived the express advocacy test and applied it to the FECA disclosures requirements,
demonstrating that the Supreme Court did not fashion the test as a general constitutional rule:
In Buckley, we began by examining then–18 U.S.C. § 608(e)(1) (1970 ed., Supp.
IV), which restricted expenditures “ ‘relative to a clearly identified candidate,’ ”
and we found that the phrase “ ‘relative to’ ” was impermissibly vague. We
concluded that the vagueness deficiencies could “be avoided only by reading
§ 608(e)(1) as limited to communications that include explicit words of advocacy
of election or defeat of a candidate.” We provided examples of words of express
advocacy, such as “ ‘vote for,’ ‘elect,’ ‘support,’ . . . ‘defeat,’ [and] ‘reject,’ ”, and
those examples eventually gave rise to what is now known as the “magic words”
requirement.
We then considered FECA’s disclosure provisions, . . . , which defined
“ ‘expenditur[e]’ ” to include the use of money or other assets “ ‘for the purpose
of . . . influencing’ ” a federal election. Finding that the “ambiguity of this phrase”
posed “constitutional problems,” we noted our “obligation to construe the statute,
if that can be done consistent with the legislature’s purpose, to avoid the shoals of
vagueness.” “To insure that the reach” of the disclosure requirement was “not
impermissibly broad, we construe[d] ‘expenditure’ for purposes of that section in
the same way we construed the terms of § 608(e)—to reach only funds used for
communications that expressly advocate the election or defeat of a clearly
identified candidate.”
McConnell, 540 U.S. at 190-91 (quoting Buckley, 424 U.S. at 40-44, 77-78, 80) (citations
omitted) (alterations in original). The line Buckley drew emerged from the particular statute the
Supreme Court was considering—a statute that suffered from serious vagueness problems, unlike
BCRA—not from a general constitutional command.
Plaintiff cites the caveat in McConnell’s conclusion that the express advocacy line was
the product of statutory construction, see id. at 192 (“[W]e nowhere suggested that a statute that
was neither vague nor overbroad would be required to toe the same express advocacy line”), to
18
argue that this is such a case that would require the statutory construction “to toe the same
express advocacy line.” Pl.’s Reply at 7-8. While Plaintiff does not claim that BCRA presents the
vagueness problems addressed with respect to FECA, see id. at 6, Plaintiff asserts that BCRA’s
disclosure requirements are overbroad, arguing that this opens the door to importing Buckley’s
statutory construction to the section 201 disclosure requirements, id. at 7. However, implicit in
the caveat to which Plaintiff cites is that BCRA is not such a vague or overbroad statute. See
McConnell, 551 U.S. at 191-92. Indeed, McConnell resolved the overbreadth question with
regard to BCRA section 201 over ten years ago. See 540 U.S. at 190-94; cf. WRTL II, 551 U.S. at
476 n.8 (“[I]n deciding this as-applied challenge, we have no occasion to revisit McConnell’s
conclusion that the statute is not facially overbroad.”) The caveat on which Plaintiff relies falls
away, leaving Buckley’s statutory construction inapplicable to BCRA. 16 Accordingly, Plaintiff
cannot rely on Buckley to argue that the Constitution requires limiting disclosures under BCRA
section 201 to express advocacy and its functional equivalent.
In addition, Plaintiff cites Buckley to show that disclosure requirements are subjected to
exacting scrutiny. See Pl.’s Reply at 2. This proposition is unremarkable, and, indeed, this is the
standard that Citizens United applied. See Citizens United, 558 U.S. at 366-67 (quoting Buckley,
424 U.S. at 64, 66) (“The Court has subjected these requirements to ‘exacting scrutiny,’ which
16
Insofar as Plaintiff is trying to assert that the disclosure requirements are “overbroad” as
applied to its advertisement, Compl. ¶ 129, as opposed to merely unconstitutional in these
particular circumstances, Plaintiff is conflating as-applied challenges and facial challenges.
Overbreadth, as McConnell uses it, is fundamentally a facial claim. See New York v. Ferber, 458
U.S. 747, 769 (1982) (“The scope of the First Amendment overbreadth doctrine, like most
exceptions to established principles, must be carefully tied to the circumstances in which facial
invalidation of a statute is truly warranted.”); Osborne v. Ohio, 495 U.S. 103, 112 (1990) (“[W]e
have repeatedly emphasized that where a statute regulates expressive conduct, the scope of the
statute does not render it unconstitutional unless its overbreadth is not only ‘real, but substantial
as well, judged in relation to the statute's plainly legitimate sweep.’ ”); Erwin Chemerinsky,
Constitutional Law: Principles and Policies § 11.2.2. (4th ed. 2011).
19
requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’
governmental interest.”); see also id. at 369. Accordingly, applying this unremarkable
proposition yields the same outcome as in Citizens United: BCRA section 201’s disclosure
requirements satisfy the requirements of exacting scrutiny.
In sum, Buckley does not support the result that Plaintiff seeks. First, the state interests
discussed by Buckley supporting disclosures in the context of FECA also support disclosures in
the context of BCRA. Second, Buckley’s introduction of the express advocacy test was limited to
the predecessor statute before the Supreme Court at the time. And, third, while Buckley does
stand for the requirement that exacting scrutiny must be applied to disclosure requirements,
Citizens United applied exactly that standard—with a result that contradicts what Plaintiff is
seeking in this case. 17
2. Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL II)
Four years after McConnell, the Supreme Court considered an as-applied challenge to
BCRA section 203, which barred corporations from expenditures on electioneering
communications, in WRTL II. 551 U.S. at 455-56. The Supreme Court concluded that “the
interests held to justify restricting corporate campaign speech or its functional equivalent do not
justify restricting issue advocacy,” and concluded that the expenditure bar in BCRA section 203
was unconstitutional as applied to the advertisements at issue in that action. Id. at 457. While
17
Plaintiff also relies on the D.C. Circuit en banc court’s analysis in Buckley, specifically its
holding regarding a provision that was not appealed to the Supreme Court. See Pl.’s Mot. at 18-
20 (citing Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en banc), aff’d in part, rev’d in part,
424 U.S. 1 (1976). In particular, Plaintiff cites to the D.C. Circuit’s discussion of a provision of
FECA requiring certain individuals to file reports as if they were political committees. See id. at
18-19 (citing Buckley, 519 F.2d at 869-70). That provision bears no resemblance to the
disclosure requirements in BCRA section 201 and sheds no light on the Court’s consideration of
them. Moreover, insofar as the en banc opinion is at odds with subsequent Supreme Court
precedent, including Citizens United, the en banc opinion is superseded by that later precedent.
20
Plaintiff cites WRTL II “as strong authority for the continued vitality of Buckley’s separation of
issue speech from express advocacy,” Pl.’s Mot. at 14, WRTL II does not suggest that distinction
is relevant with respect to disclosures—regardless of the asserted vitality of that distinction with
respect to expenditures.
Plaintiff’s attempt to apply the reasoning of WRTL II to disclosure requirements fails.
WRTL II was an as-applied challenge to the regulation of expenditures pursuant to BCRA
section 203 while only the disclosure requirements in section 201 are challenged in this action.
Plaintiff acknowledges as much. See id.; Pl.’s Reply at 5. Indeed, the Plaintiff’s argument with
respect to WRTL II is precisely the argument rejected in Citizens United. See Citizens United,
558 U.S. at 368-69 (“The principal opinion in WRTL [II] limited 2 U.S.C. § 441b’s restrictions
on independent expenditures to express advocacy and its functional equivalent. Citizens United
seeks to import a similar distinction into BCRA’s disclosure requirements. We reject this
contention.”). As explained above, Citizens United is binding, and it forecloses the application of
the restrictions applied in WRTL II to this case. In sum, WRTL II provides no authority to support
importing the express advocacy (or functional equivalent) test to the disclosure requirements of
BCRA section 201.
IV. CONCLUSION
Plaintiff’s claim is squarely foreclosed by Citizens United, in which the Supreme Court
refused to import the distinction between express advocacy and its functional equivalent and
issue advocacy to the disclosure requirements of BCRA section 201. In all relevant ways, the
advertisement that Independence Institutes proposes to run is similar to the Hillary
advertisements considered by the Supreme Court in Citizens United. That Independence Institute
is subject to section 501(c)(3) of the tax code, while Citizens United is subject to
21
section 501(c)(4), does not provide a basis for a different result. Neither does the fact that the
Hillary advertisements were arguably pejorative while Plaintiff’s advertisement is, on its face,
neither complimentary nor pejorative with respect to any candidate. Just as Citizens United’s as-
applied challenge to the disclosure requirements of section 201 failed, so too does Plaintiff’s as-
applied challenge to those same disclosure requirements. Moreover, the other precedent that
Plaintiff seeks to enlist in its cause is either inapposite or, upon examination, actually supportive
of the application of the disclosure requirements of BCRA in these circumstances.
For the foregoing reasons, Plaintiff’s [3] Application for a Three Judge Court is
DENIED. Pursuant to the parties’ agreement to consolidate briefing on the merits with the
preliminary injunction briefing, the Court enters JUDGMENT in favor of Defendant. 18
Therefore, Plaintiff’s [5] Motion for Preliminary Injunction is MOOT. This action is
DISMISSED in its entirety. An appropriate Order accompanies this Memorandum Opinion.
Dated: October 6, 2014
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
18
Even without either a formal cross-motion for summary judgment by Defendant, the Court can
award judgment to Defendant. See Henok v. Chase Home Fin., LLC, 922 F. Supp. 2d 110, 117
(D.D.C. 2013) aff’d in part sub nom. Henok v. JPMorgan Chase Bank, N.A., 13-7036, 2013 WL
4711675 (D.C. Cir. Aug. 2, 2013); 10A Charles Alan Wright et al., Federal Practice &
Procedure § 2720 (3d ed. 1998) (“The grant of judgment for the nonmoving party clearly is
proper if both sides agree that there are no material fact issues and join in the request that the
case be decided, for the moving or the nonmoving side, on the basis of a motion for judgment
made by only one of them.); Fed. R. Civ. P. 56(f) (“After giving notice and a reasonable time to
respond, the court may (1) grant summary judgment for a nonmovant”). The parties agreed that
the Court would adjudicate this case on the merits without the submission of additional evidence,
and there are no disputes as to material facts. Joint Stip. at 1-2. In addition, even without a formal
motion, Defendant has requested that the Court award judgment to it. See Def.’s Opp’n at 2.
22
Independence Institute v. Federal Election Commission
Court: District Court, District of Columbia
Date filed: 2014-10-06
Citations: 70 F. Supp. 3d 502
Copy CitationsCombined Opinion