Independence Institute v. Federal Election Commission

UNITED STATES DISTRICT COURT
FOR TH]E DISTRICT OF COLUMBIA

)
INDEPENDENCE I.NSTITUTE, )
)
Plaintift`, )
) Case No. l4-cv~1500
V )
)
FEDERAL ELECTION COMMISSION, )
s )
Defendant. )
)

Before: l\/lillett, Ci`rcuit Judge; Kollar-Ketelly and Mehta, District Judges.
Opinion for the Court filed by Cz'rcuit Judge Millett.
MEMORANDUM OPINION

Millett, Circuz`t Judge:

lndependence Institute, a Colorado-based non-profit organization, filed suit
against the Federal Election Comrnission seeking a declaratory judgment that the
Bipartisan Campaign Reform Act’s disclosure provision, 52 U`.S.C § 30104(@, is
unconstitutional as applied to a radio advertisement that it desired to run during the
time leading up to the 2014 and 20l6 general elections Both Independence
Institute and the Federal Election Commission move for summary judgment1 For
the reasons discussed below, We DENY Independence lnstitute’s l\/lotion for
Surninary Judgment and GRANT the Federal Election Cornrnission’s Motion for
Surnrnary Judgrnent.

l lndep. lnst. Mot. for Sumin. J. and Mern. in Supp., ECF No. 36; FEC’s Mot. for Summ. }., ECF
No. 42.

I

Congress passed the Bipartisan Campaign Reform Act of 2002 (“Act”), Pub.
L. No. 107~155, 116 Stat. 81 (codified in various parts of Title 52 of the U.S.
Code), to address “[t]hree important d.eveioprnents” in the role of money in federai
elections: “[T]he increased importance of ‘soft money,’ the proliferation of ‘issue
ads,’ and the disturbing findings of a Senate investigation into campaign practices
related to the 1996 federal elections,” vvhich revealed some “elected officials’
practice of granting special access in return for political contributions.”
McCOnnel[ v. FEC, 540 U.S. 93, 122, 129 (2003), Overruled in part an Other
grounds by Ciri`zens Um'red v. FEC, 558 U.S. 310, 365 (2010) (upholding the Act’s
disclosure provision against Citizens United’s as-applied challenge, but
invalidating other provisions of the Act). Title I of the Act addresses the use of
“soft money”~++ethat is, donations made by individuals through political parties to
benefit candidates See 52 U.S.C. §§30101,30104,30116-30117,30125. Title II,
Which is at issue here, regulates paid communications by outside organizations that
could have the effect of “influencing the outcome of federal elections.” See id. at
132; see also 52 U.S.C. §§ 30101, 30104, 30116_30118,

As relevant here, Section 30104 of the Act imposes a large-donor disclosure
requirement on organizations that engage in candid.ate~referencing communications
in the run up to a federal primary or general election. Specif`ically, the Act
provides that:

Every person Who makes a disbursement for the direct costs of
producing and airing electioneering communications in an aggregate
amount of $10,000 during any calendar year shall, Within 24 hours of
each disclosure date, file With the Commission a statement containing
the information described in paragraph (2).

52 U.S.C. § 30104(f)(1). Paragraph 2, in turn, requires the disclosure of “[t]he
identification of the person making the disbursement”; “[t]he principal place of
business of the person making the disbursement”; “[t]he amount of each
disbursement of more than $200 during the period covered by the statement”; “the
identification of the person to vvhorn th[at] disbursement Was made”; “[t]he
elections to Which the electioneering communications pertain”; “the names (if

2

known) of the candidates identified or to be identified”; and “the names and
addresses of all contributors Who contributed an aggregate amount of $1,000 or
more” for the purpose of disseminating the electioneering communication ]d.
§30104(@(2); see ll C.F.R. §104.20(c)(9) (requiring disclosure of qualifying
donors only if the donation “vvas made for the purpose of furthering electioneering
communications”); see also Van Hollen, J'r. v. FEC, 811 F.3d 486, 501 (D.C. Cir.
2016) (upholding the specific-purpose requirement in 1 l C.F.R. § 104.20(c)(9)).

The Act defines an “electioneering communication” that triggers such donor
disclosure as “any broadcast, cable, or satellite communication” that:

(I) refers to a clearly identified candidate for Federal office;
(II) is made Within-

(aa) 60 days before a general, special, or runoff election
for the office sought by the candidate; or

(bb) 30 days before a primary or preference election, or a
convention or caucus of a political party that has
authority to nominate a candidate, for the office sought
by the candidate; and

(III) in the case of a communication vvhich refers to a candidate
for an office other than President or Vice President, is targeted
to the relevant electorate

52 U.S.C. § 30104(f)(3). When, as here, an electioneering communication refers
to a Senate candidate, it is “targeted to the relevant electorate” if it “can be
received by 50,000 or more persons” in “the State the candidate seeks to
represent[.]” Id. § 30104(@(3)(®.

II

lndependence lnstitute is a non-profit organization that conducts research
and seeks to educate the public on a variety of policy issues, including healthcare,
justice, education, and taxation Indep. Inst.’s Statement of Undisputed Material

Facts, ECF No. 36-2 (“indep. lnst. SUMF”) 11 l.2 The lnstitute is a 501(c)(3) tax-
exempt organization, 26 U.S.C. § 501(c)(3), based in Colorado. Indep. lnst.
SUl\/IF 11 2. As a part of its educational mission, the Institute produces
advertisements that “mention the officeholders who direct” the policies of interest
to the Institute. Compl. 11 2.

United States Senator Mark Udall of Colorado was a candidate for reelection
in the November 4, 2014 general election. ln the sixty days preceding that
eiection, Independence Institute sought to run a radio advertisement that urged
Coloradoans to call Senator Udall, as well as Senator Michael Bennet, to express
support for the Justice Safety Valve Act, S. 619, l 13th Cong. (2013) (reintroduced
as S. 353, ll4th Cong. (2015)). Indep. lnst. SUl\/[F 11113”5. The content of the

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.

lt would allow judges to keep the public safe, provide rehabilitation,
and deter others from committing crimes

2 Because we are at the summary judgment phase, our ruling construes all demonstrated facts in
favor of the nonmovant See Swanson Grp. Mfg. LLC v. Jewe!l, 790 F.3d 235_, 240 (D.C_ Cir.
2015).

4

Call Senators l\/fichael Bennet and Mark Udall at 202-224-3l2l. 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 1nstitute, 121 dot org. Not authorized by any
candidate or candidate’s committee lndependence 1nstitute is
responsible for the content of this advertising

Id. 11 5. 1ndependence 1nstitute planned to spend at least $10,000 on the
advertisement, which would have reached at least 50,000 persons in the Denver
metropolitan area. ]d. 11 4.

The lnstitute, however, declined to run the advertisement during the 2014
election cycle because it was concerned that doing so would subject the 1nstitute to
the Bipartisan Campaign Reform Act’s large-donor disclosure provision 1ndep.
1nst. SUl\/I`F 11 3 (noting that the institute “wished to broadcast” the advertisement
during the 2014 election season). instead, in September 2014, the 1nstitute filed
suit against the Federal Eiection Commission asserting that application of the Act’s
disclosure provision to the specific Justice Safety Valve Act advertisement
described above violated the First Amendment. The 1nstitute also asked that its
case be heard by a three-judge district court, as authorized by the Act, 52 U.S.C.
§30l10 note. See l\/lot. to Convene Three-Judge Court, ECF No. 3. A single
district court judge denied that motion on the ground that the 1nstitute’s challenge
did not raise a substantial question, and granted summary judgment on the merits
to the Commission. independence last v. FEC, 70 F. Supp. 3d 502, 506, 516
(D.D.C. 2014).

The court of appeals reversed, holding that the 1nstitute was “entitled to
make its case to a three-judge district court.” Independence last v. FEC, 816 F.3d
il3, 117 (D.C. Cir. 2016); see Shapi'ro v. McManus, l36 S. Ct. 450, 455 (2015)
(°“Constitutional claims will not lightly be found insubstantial for purposes of" the
three-judge-court statute.”) (quoting Washingron v. Confederated Tribes of the
Co[ville ]ndz'an Reservarz`on, 447 U.S. 134, 147-~148 (1980)); See also Shapiro, 136
S. Ct. at 456 (stating that the three-judge-court statute presents a “low bar”). The
court of appeals’ majority did not address the merits of the 1nstitute’s claim. Judge

Wilkins dissented, explaining that he would have affirmed the denial of the
1nstitute’s Motion for a Three-Judge District Court on the ground that the
“immaterial factual distinctions that the 1nstitute offers to distinguish its challenge
from that in Cin`zens United v. FEC” do not present “a substantial constitutional
question.” .[ndependence [nsf., 816 F.3d at 117-118 (Wilkins, J., dissenting).

On remand, this three-judge district court panel was designated to hear the
1nstitute’s as-applied challenge to the Act’s disclosure provision Designation of
Judges to Serve on ’I`hree-Judge District Ct., ECF No. 30. 'i`he parties filed cross-
motions for summary judgment Neither party requested an expedited decision

II`I

A party is entitled to summary judgment “only if ‘there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”’
See, e.g., Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (quoting Fed. R.
Civ. P. 56(a)). “‘lf material facts are at issue, or, though undisputed, arc
susceptible to divergent inferences, summary judgment is not available.”’ Moore
v. Hortman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting Kuo-Yun Tao v. Freeh, 27
F.3d 635, 638 (D.C. Cir. 1994)). The parties have not identified any material
factual disputes 1ndeed the Commission did not even respond to the lnstitute’s
Statement of Undisputed Material Facts. Accordingly, we are tasked only with
determining if the 1nstitute or the Commission is entitled to judgment as a matter
of law.

A. Mootness

The first thing we must decide is whether we can decide this case. Article
111 of the Constitution imposes important limits on the jurisdiction of federal
courts. See, e.g., Arizonansfor O]jicial English v. Arizona, 520 U.S. 43, 64 (1997).
Of most relevance here, Article 111’s case-or-controversy requirement means that,
“[t]o qualify as a case fit for federal-court adjudication, ‘an actual controversy
must be extant at all stages of review, not merely at the time the complaint is
filed.”’ [d. at 67 (quoting Preiser v. Newkz`rk, 422 U.S. 395, 401 (1975)). “There
is thus no case or controversy, and a suit becomes moot, ‘when the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in the

outcome.”’ See, e.g., Chofin v. Chojin, 133 S. Ct. 1017, 1023 (2013) (quoting
Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013)). When, as here, the
complaint seeks only injunctive and declaratory relief, the plaintiff must
demonstrate an enduring dispute or a material risk that the controversy will recur.
“In general, a case becomes moot where the activities for which an injunction is
sought have already occurred and cannot be undone.” Monzz`llo v. Bz`ller, 735 F.2d
1456, 1459 (D.C. Cir. 1984); see Cily ofLos Angeles v. Lyorzs, 461 U.S. 95, 109-
111 (1983) (failure to show that repetition of a past dispute is “realistically
threatened” requires denial of “an injunction in a federal court, whether the
injunction contemplates intrusive structural relief or the cessation of a discrete
practice”); Larsen v. United States Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (case is
moot when “any injunction or order declaring [the policy] illegal would
accomplish nothing_~ainounting to exactly the type of advisory opinion Article 111
prohibits”).

The question of mootness arises in this case because the 1nstitute’s
complaint expressly seeks only to run a single advertisement during the 2014
general election season when Mark Udall was a candidate for the United States
Senate from Colorado. The complaint, moreover, is quite explicit that the only
constitutional challenge it raises and the only relief it seeks is with respect to the
particular Justice Safety Valve Act advertisement See Compl. 11 3 (“The
1ndependence 1nstitute plans to produce an issue advertisement, to be aired on
broadcast radio, which will discuss federal sentencing guidelines The
advertisement will mention Senators Mark Udall and Michael Bennet and ask that
they support the Justice Safety Valve Act.”) (emphasis added); id. 111130~38
(describing the content of the communication under the heading “[t]he
advertisement”); id. 1130 (“As part of its mission, the 1ndependence 1nstitute
wishes to run an advertisement discussing federal sentencing guidelines.”); id.
1111 30~35 (detailing the proposed Justice Safety Valve advertisement); id. 111 36-37
(alleging that the 1nstitute wants to raise funds for “this specific advertisement”);
id. 11105 (“In this case, the 1ndependence 1nstitute presents a genuine issue
advertisement[.]”) (emphasis added); id.1111 1054111, 113, 116-117, ll9, l28-l29
(alleging causes of action in terms of °‘this specific advertisement,” “the proposed
advertisement,” and the “advertisernent”); id. (Prayers for Relief) (seeking relief
only as to the 1nstitute’s “proposed advertisement”) (emphasis added).

7

Needless to say, the 2014 election is long since over. l\/lark Udall lost, and is
no longer a candidate whose naming in the advertisement could trigger the Act’s
disclosure requirement Nevertheless, it is well settled that a case is not moot if the
alleged harm is “capable of repetition, yet evading review,” in that ‘°(1) the
challenged action 1is] in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there [is_1 a reasonable expectation that the same
complaining party would be subjected to the same action again.” Tumer v.
Rogers, 564 U.S. 431, 440 (2011) (quoting Weinsrein v. Bradford, 423 U.S. 147,
149 (1975)).

With respect to the first prong of that test, a case or controversy generally is
considered “too short to be fully litigated prior to its cessation or expiration” if the
lifespan of the dispute is less than two years See, e.g., Kingdomware
Technologi`es, lnc. v. United States, 136 S. Ct. 1969, 1976 (2016) (“We have
previously held that a period of two years is too short to complete judicial
review[.]”); cf. Turner, 564 U.S. at 440 (twelve months is a sufficiently short
duration).

With respect to the second prong, the expectation that the same litigant will
come before the court with the same issue again must be more than theoretical or a
mere possibility; it must be “reasonable” to expect See lllinois Srore Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 187_188 (1979) (case was
moot because there was “no evidence creating a reasonable expectation that the
Chicago Board w[ould] repeat its purportedly unauthorized actions in subsequent
elections”); see also Amerlcan Bar Ass’n`v. FTC, 636 F.3d 641, 645~647 (D.C.
Cir. 2011) (holding a case moot because an intervening legislative change made
the prospect of the issues arising again “nothing more than possibilities regarding
regulations and enforcement policies that do not presently exist”).

The Supreme Couit, moreover, has found that challenges to campaign-
f_`mance and electoral-communication regulations can often fit the capable-of-
repetition mold given the generally time-sensitive nature of both the desired
communications and the governmental limitations 1n particular, in FEC v.
Wisconsi`n Right to Life, lno., 551 U.S. 449 (2007), the Supreme Court held that,
even though the election had passed, Wisconsin Right to Life’s challenge to the
Bipartisan Campaign Reform Act’s restrictions on corporate speech was not moot

8

because the group “credibly claimed that it planned on running ‘materially similar’
future targeted broadcast ads mentioning a candidate within the blackout period,”
id. at 463; see also ld. at 459~460 (specifically discussing a series of similar
advertisements that Wisconsin Right to Life sought to run during the blackout
period).3

ln response to the court’s order for briefing on the question of mootness in
this case, see Scheduling Order, ECF No. 35 at 2, the 1nstitute submitted a
declaration that says simply that it “inten[ds] in future years to run substantively
similar advertisements to the one at issue here,” 1ndep. inst SUMF 11 6. See also
id. (citing a pre-2014 election declaration and press release, and a 2015 declaration
submitted to the D.C. Circuit that simply described and quoted the 20l4 press
release). The 1nstitute did not attempt to amend or to supplement its complaint
Nor did it seek to clarify the contours of its as-applied constitutional challenge to
the extent it went beyond the specific Justice Safety Valve Act advertisement on
which the complaint exclusively focused.

The 1nstitute argues that its single, unelaborated allegation precludes a
determination of mootness under Wlsconsin Right lo Li'fe. That may be. But it
bears noting that this case differs from Wisconsin Right to Life in some potentially
material respects First, unlike the complaint in Wisconsin Right to Life, the
1nstitute deliberately confined its complaint, its prayer for relief, and its
constitutional arguments to the single question of whether applying the Act’s large-
donor disclosure rule to the Justice Safety Valve Act violated the First
Amendment. Despite having ample opportunity to amend its complaint to add
allegations identifying the additional speech to which its as-applied challenge
should be applied or to request some form of relief that goes beyond the one single
advertisement, the 1nstitute has steadfastly declined to do so. 1ndeed, comparing
the complaint in Wisconsz`n Right to Life to the 1nstitute’s complaint here reveals

3 See also Norman v. Reed, 502 U.S. 279, 288 (1992) (passage of election did not moot the case
because “[t}herc would be every reason to expect the same parties to generate a similar, future
controversy subject to identical time constraints if we should fail to resolve the constitutional
issues that arose in 1990”); Fz`rsl' Nat’l Banlc ofBosl'on v. Bellotn', 435 U.S. 765, 774-775 (1978)
(case was not moot even though the election had passed because there was no “scrious doubt that
there [was] a ‘reasonable expectation”’ that appellants would be “subject to the threat of
prosecution” again).

how narrowly the 1nstitute framed its as-applied claim in this case. Compare Am.
Compl. Prayer for Relief, Wisconsin Right to Life v. FEC, 466 F. Supp. 2d 195
(D.D.C. 2006) (No. 04-1260) (seeking declaratory judgment as to any
“electioneering communications by WRTL that constitute grass-roots lobbying”),
with 1ndep. 1nst. Compl. Prayer for Relief (seeking declaratory and injunctive relief
only for the 1nstitute’s single “proposed r.tdvertisement”).lIL Given that the mootness
question has arisen at the earliest stages of this case in district court-»~and not after
entry of a final district court judgment as occurred in Wlsconsln Right lo Ll`fe-the
lnstitute’s unwillingness to amend its complaint to avoid a potential Article 111
problem, or even to clarify what its as-applied challenge is applied to, seems to be
a deliberate choice.

Second, there is a substantial question whether the constitutional dispute
over the 1nstitute’s Justice Safety Valve Act advertisement will evade review. The
1nstitute acknowledges that, after the 2016 election cycle concludes, neither of the
Colorado Senators that its advertisement targets will be up for election before the
2020 primary season, and thus that the Act will not apply to this advertisement for
roughly another four years li` our years would provide the 1nstitute with sufficient
time to litigate its challenge before the next election

Fortunately, we need not decide whether the 1nstitute’s decision not to
amend its complaint or otherwise to seek relief for its as-applied claim to any
anticipated communications beyond this single advertisement renders this case

4 Co)npare also Am. Compl. 11 6, Wisconsz`n Right 10 L:°fe (“This case challenges the prohibition
as applied to grass-roots lobbying on the facts of this case, which involves broadcast
advertisements (true and accurate transcripts of current versions of the ads are attached as
Exhibit[s] A, B, and C) that are paid for by WRTL and that encourage Wisconsin listeners to
contact their U.S. Senators (Sen. Russell Feingold and Sen. Herb Kohl)”), with 1ndep. 1nst.
Compl. 11 3 (“The 1ndependence 1nstitute plans to produce an issue advertisen;rent, to be aired on
broadcast radio, which Will discuss federal sentencing guidelines The advertisement will
mention Senators Mark Udall and Michael Bennet and ask that they support the Justice Safety
Valve Act.”) (emphasis added); and compare Arn. Compl. 11 14, Wiseonsin Right to Life (during
the Act’s large-donor disclosure periodJ “the current ads (Exhibits A, B, and C) and materially
similar ads will become electioneering communications as to Wisconsin Senatorial candidate
Russell Feingold, and WRTL will be prohibited from running these ads”), with 1ndep. 1nst.
Compl. 1111 105~111, 113, 1164117, 119, 128~129 (alleging causes of action in terms of “this
specific advertisement,” “thc proposed advertisement,” and the “advertisement”).

10

moot. That is because the other Senator referenced in the advertisement-Senator
Michael Bennet-~is up for election this Fall, and the 1nstitute made clear at oral
argument that it still desires to run this particular advertisement during the 2016
general election cycle (notwithstanding its failure to seek expedition):

Court: You’re telling us you’re going to run this ad again, even
though you didn’t say that in your declaration? That’s now the
representation on the record?

Mr. Dickerson: Yes, that’s the representation on the record.
See Oral Arg. Tr. 22117-22. Accordingly, the case before us is not moot.
B. Merits

There is no dispute that the institute’s advertisement meets the statutory
definition of an electioneering communication under the Act. The advertisement
mentions a Senate candidate by name; it would air within the sixty days preceding
a general election; it is targeted to reach at least 50,000 persons in Colorado; and it
would cost at least $10,000. See 52 U.S.C. §30104(1‘,). Accordingly, if the
1nstitute were to run the advertisement as intended, the 1nstitute would have to
disclose the names of those donors that contributed at least $l,000 for the purpose
of funding the advertisement See ll C.F.R. § 104.20(0)(7) & (9); Van Hollen, Jr.,
81lF.3d at 50l-502.

r1`he 1nstitute argues that the Act’s large-donor disclosure requirement, as
applied to this particular advertisement, violates its First Amendment right to free
speech in two ways First, the 1nstitute argues that the Justice Safety Valve Act
advertisement is “genuine issue advocacy” that the Constitution mandates must be
exempted from the disclosure of large donors. See 1nst. Mot. for Summ. J. at 26-
39. Second, the 1nstitute contends that, because its status as a non-prolit under
Section 501(c)(3) of the internal Revenue Code precludes it from engaging in
political activity, this advertisement on a legislative matter must constitutionally be
exempted from the large-donor disclosure requirement See id. at 19-~26. Both
arguments founder on Suprerne Court precedent, and the lnstitute’s proffered
distinctions make no constitutional difference

ll

]. lssue Advocacy

The Supreme Court has twice considered and twice upheld the Bipartisan
Campaign Reform Act’s large-donor disclosure provision, and in doing so has
rejected the very type of issue~centered exception for which the 1nstitute argues 1n
McConne[l, the Court first addressed the Act’s restrictions on corporate speech
and, in So doing, specifically “rejected the notion that the First Amendment
requires Congress to treat so-called issue advocacy differently from express
advocacy.” 540 U.S. at 196. Turning to the large~donor disclosure provision that
is at issue in this case, the Supreme Court rejected the plaintiffs’ facial challenge
on the ground that that drawing a line between express advocacy and issue
advocacy was just as untenable for the Act’s disclosure provision as it was for the
Act’s other provisions See ial at 195. The Supreme Court also ruled that the
disclosure provision serves “important state interests,” such as “providing the
electorate with information, deterring actual corruption and avoiding any
appearance thereof, and gathering the data necessary to enforce more substantive
electioneering restrictions[.]” ]a’. at 196.

ln Citr'zens United, the Supreme Court found no merit in Citizens United’s
cts-applied challenge to the large*donor disclosure requirement 558 U.S. 310,
366~371. Citizens United argued that the provision was unconstitutional as
applied to both a movie about Hillary Clinton and three advertisements for the
movie because such speech was not a form of “express advocacy.” Id. at 368. In
language that speaks directly to the 1nstitute’s proposed issue-advocacy exception,
the Supreme Court ruled that the First Amendment does not require limiting the
Act’s large~donor disclosure requirements to “speech that is the functional
equivalent of express advocacy.” Ial. at 369. The Supreme Court explained that its
holding in Wz`sconsin Right to Lz`fe, 551 U.S. at 469~476, which limited restrictions
on independent expenditures to express advocacy and its functional equivalent,
cannot be imported into the Act’s disclosure requirements Cirizens United, 558
U.S. at 368e369. That is so, the Court reasoned, because “disclosure is a less
restrictive alternative to more comprehensive regulations of speech.” [d. at 369.

The Court also emphasized that its precedents have consistently upheld the
constitutionality of disclosure requirements even while calling into question other
campaign finance-related restrictions See Cin`zens United, 558 U`.S. at 369

l2

(describing Back[ey v. Valeo, 424 U.S. l (1976), where “the Court upheld a
disclosure requirement for independent expenditures even though it invalidated a
provision that imposed a ceiling on those expenditures;” McCohhell, where “three
Justices who would have found § 441b to be unconstitutional nonetheless voted to
uphold lthe Act’s] disclosure and disclaimer requirements”; and United States v.
Harriss, 347 U.S. 612, 625 (l954), where “the Court * ’*‘ * upheld registration and
disclosure requirements on lobbyists, even though Congress has no power to ban
lobbying itself”). The Court concluded by underscoring the constitutionally
permissible reach of the Act’s disclosure provision, explaining that, “[e]ven if the
ads only pertain[ed] to a commercial transaction, the public ha[d] an interest in
knowing who is speaking about a candidate shortly before an election.” Ial.5

The 1nstitute nevertheless contends that the constitutional rules demand a
different result in this case because its advertisement identifies specific political
candidates as part of “issue” advocacy focused on pending legislation

Before addressing the 1nstitute’s specific arguments the First Amendment
issue it raises must be set in context i`he Bipartisan Campaign Reform Act’s
disclosure provision does not purport to regulate issue advocacy per se. lt only
regulates those communications that (i) clearly identify an electoral candidate (ii)
in the sixty days preceding a general election and the thirty days preceding a
primary election. See 52 U.S.C. § 30104(1"). The 1nstitute thus is free to run its
advertisement outside that electioneering window. And it may speak freely
through its advertisement during the election cycle as well, as long as it does not
either clearly identify a candidate for office in the process or rely upon donations

5 Unlike Citizens United, the 1nstitute does not claim that disclosure could expose its donors to
threats, harassment, or reprisals and it does not argue that we should overturn the disclosure
requirement on that basis Compare Cilr`zens Unirea’, 558 U.S. at 370 (“ln McConnell, the Court
recognized that § 201 would be unconstitutional as applied to an organization if there were a
reasonable probability that the group's members would face threats, harassment, or reprisals if
their names were disclosed.”), with Joint Stipulation and ()rder, ECF No. 14 (“The independence
l`nstitute’s challenge does not rely upon the probability that its donors will be subject to threats,
harassments, or reprisals as a result of the 1nstitute’s filing of an Electioneering Communications
statements pursuant to 52 U.S.C. § 30104(@(1)»(2)[.]”). See also Cr'tl`zehs Unirea.', 558 U.S. at
370 (“Citizens United argues that disclosure requirements can chill donations to an organization
by exposing donors to retaliation.”).

13

of over $l000 that are specifically dedicated to running that candidate-referencing
advertisement, see Vah Holleh, Jr., s'apra.6

The constitutional question then is whether the First Amendment immunizes
from large-donor disclosure the 1nstitute’s issue advertisement that explicitly
references an electoral candidate by name in the run up to an election The answer
is “no” for three reasons

Fz'rst‘, the Supreme Court and every court of appeals to consider the question
have already largely, if not completely, closed the door to the lnstitute’s argument
that the constitutionality of a disclosure provision turns on the content of the
advocacy accompanying an explicit reference to an electoral candidate ln
McCohhelZ, the Supreme Court concluded that First Amendment precedent ‘“amply
supports application of [the Act’s] disclosure requirements to the entire range of
electioneering commanicariohs.”’ 540 U.S. at 196 (emphasis added). ln so doing,
the Court specifically “rejected the notion that the First Amendment requires
Congress to treat so-called issue advocacy differently from express advocacy[.]”
Ia’. at l94. Likewise, in Cirizehs United, the Supreme Court ruled that advocacy-
even if it takes the form of commercial speech-falls within the constitutional
bounds of the donor~disclosure rule precisely because that advocacy points a finger
at an electoral candidate See Cirz`zehs Um`red, 558 U.S. at 369.7

6 Although the Justice Safety Valve Act has remained under legislative consideration for the last
three years, the 1nstitute has chosen for its own reasons not to run its proposed advertisement at
all, even during the many months unregulated by the Act’s electioneering restriction See Justice
Safety Valve Act, S. 619, ll3th Cong. (2013) (reintroduced as S. 353, 114th Cong. (20l5)).

7 See also Cehler for Ihdfvia'ual Freea'om v. Maalfgah, 697 F.3d 464, 484 (7th Cir. 2012)
(“Cr`lz`zehs United made clear that the wooden distinction between express advocacy and issue
discussion does not apply in the disclosure context.”); Nalional Org. for Marrfage v. McKee, 649
F.Bd 34, 54-55 (lst Cir. 2011) (“We find it reasonably clear, in light cf Cirz`zens Uhileal, that the
distinction between issue discussion and express advocacy has no place in First Amendment
review of these sorts of disclosure-oriented laws.”); Haman L`r`fe of Wash. Inc. v. Bramsl'ckle, 624
F.3d 990, 1016 (9th Cir. 2010) (“Given the Court’s analysis in Cilz`zens United and its holding
that the government may impose disclosure requirements on speech, the position that disclosure
requirements cannot constitutionally reach issue advocacy is unsupportabl.e.”). (§)‘.` ]ho.'epehdence
1nstitute v. Wilh'ams, 812 F.3d '787, 795 (lOth Cir. 2016) (“It follows from Citizens United that
disclosure requirements can, if cabined within the bounds of exacting scrutiny, reach beyond
express advocacy to at least some forms of issue speech.”).

14

Under McCohnell and Cirizehs United, then, it is the tying of an identified
candidate to an issue or message that justifies the Bipartisan Campaign Reform
Act’s tailored disclosure requirement because that linkage gives rise to the voting
public’s informational interest in knowing “who is speaking about a candidate
shortly before an election.” Cirizens United, 558 U.S. at 369; See McCohhell, 540
U.S. at 197 (“‘Plaintiffs’ argument for striking down BCRA’s disclosure
provisions * * * ignores the competing First Amendment interests of individual
citizens seeking to make informed choices in the political marketplace ) (quoting
McCohhell v. FEC, 25l F. Supp. 2d l76, 237 (D.D.C. 2003)). lndeed, it is telling
that, in defining a “genuine issue ad” in Wisconsin Right to Lz`fe, the Suprerne
Court stated that such an advertisement would hot “mention[] * * * candidacy” or
a “challenger.” 551 U.S. at 470. Accordingly, it is hard to see any constitutional
daylight between the 1nstitute’s issue advertisement and the issue advocacy to
which the Supreme Court has already held that the Act’s disclosure requirements
can permissibly be applied.

531

Second, the 1nstitute’s proposed constitutional exception for “genuine” issue
advocacy is entirely unworkable as a constitutional rule l`he institute itself has
offered no administrable rule or definition that Would distinguish which types of
advocacy specifically referencing electoral candidates would fall on which side of
the constitutional disclosure line, or how the Commission could neutrally police it.
The institute emphasizes that the advertisement at issue here focuses on pending
legislation, not candidates Yet it would blink reality to try and divorce speech
about legislative candidates from speech about the legislative issues for which they
will be responsible After all, the 1nstitute’s advertisement discusses a proposed
bill designed to address inequities in the criminal justice system, which is a topic of
substantial debate and interest in this electoral cycle And it takes little
imagination to envision the electoral impact that could arise from linking
candidates with proposed legislation in others areas of 1nstitute interest, such as
healthcare, educational programs and taxes

The 1nstitute further contends that its advertisement does not take a position
for or against the identified Senate candidate That is debatable After all, the
advertisement plainly seeks to persuade listeners that the Justice Safety Valve Act
addresses an issue of such preeminent importance that prospective voters should

15

inquire into the candidate’s position on the legislation during the critical thirty~ or
sixty~day period leading up to an election. See 1ndep. 1nst. SUMF 11 5 (“Call
Senators Michael Bennet and l\/lark 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.”). The advertisement also at least implies that the Senate candidate is
not already on board as a committed supporter of the bill. Otherwise there would
be no reason to ask Coloradoans to solicit the electoral candidate’s support for the
proposed law. See Oral Argument at 23:50, 1ndependence 1nstitute v. FEC, 816
F.3d 113 (D.C. Cir. 2016) (No. 14-5249) (Judge Wilkins’ raises the question
whether the advertisement impliedly communicates that the Colorado Senators do
not currently support the Justice Safety Valve Act). And if the Senate candidate
has already taken a position against the bill, the advertisement could very well be
understood by Coloradoans as criticizing the Senate candidate’s position See
1ndependence Ihsri`rare v. Wil[t`ams, 812 F.3d. 787 (10th Cir. 2016) (“The
advertisement here does not say much about Governor I~Iickenlooper, but it does
insinuate, at minimum, that he has failed to take action on an issue that the 1nstitute
considers important That could bear on his character or merits as a candidate.”).

ln any event, the First Arnendment is not so tight-fisted as to permit large-
donor disclosure only when the speaker invokes magic words of explicit
endorsement That would make the constitutional balancing of interests turn on
form not substance The 1nstitute in fact, exposed the untenability of its proposed
‘°genuine” issue advocacy line when it acknowledged that a similarly designed
1nstitute advertisement addressing health insurance “suggested [the candidate’s]
position On the issue being discussed.” lndep. 1nst. Reply 'Br. at 7. In
]hdepehdehce 1nstitute v. Williams, the 1nstitute challenged as unconstitutional a
Colorado state law donor~disclosure requirement (which is virtually identical to the
Bipartisan Campaign Reform Act’s large~donor disclosure rule) as applied to
“pure[]” issue advocacy 812 F.3d at 7 89.8 The 1nstitute advertisement at issue
there stated:

8 See 1ndependence [nsri'tare, 812 F.Zd at 789»790 (“Colorado requires any person who spends at
least 81000 per year on ‘electioneering communications’ to disclose the name, address, and
occupation of any person who donates 8250 or more for such communications,” and defines
“‘electioneering communication”’ as “‘any communication broadcasted by television or radio’
that ‘unambigously refers to any candidate" ‘sixty days before a general election’ and targets ‘an

16

Doctors recommend a regular check up to ensure good health.

Yet thousands of Coloradoans lost their health insurance due to the
new federal law.

l\/lany had to use the state’s government-run health exchange to find
new insurance

Now there’s talk of a new 813 million fee on your insurance
lt’s time for a check up for Colorado’s health care exchange

Call Governor Hickenlooper and tell him to support legislation to
audit the state’s health care exchange

1ndependence institute is responsible for the content of this
advertising

]d. at 790.

As noted, the 1nstitute’s briefing and argument in this court now
acknowledge that its advertisement that (i) discusses a legislative issue of concern
to the 1nstitute and (ii) asks constituents to contact a candidate about supporting
the legislation can “suggest [the candidate’s] position on the issue being
discussed,” 1ndep. 1nst. Reply Br. at 7. Yet that implication triggers the exact same
concerns for voter information that the Supreme Court held sustained the Act’s
disclosure provisions in McConhe[l and Cirizehs United.

'l`he 1nstitute nonetheless argues that the particular advertisement at issue
here is constitutionally different because both Senators are mentioned in the Justice
Safety Valve advertisement (only one of whom was running for office), and not
just “a single candidate” as in the health insurance advertisement See 1ndep. 1nst.
Reply Br. at 7. The 1nstitute also suggests that advertisements addressing “a
general category of executive power,” rather than “a specific bill being advanced in

audience that includes members of the electorate for such public office.”’) (quoting l COLO.
CoNsT. Art. XXVIII, § 2('7)(a)).

17

the legislative body,” should receive different constitutional treatment Oral Arg
rr. 24;3-5.9

Neither of the lnstitute’s proposed distinctions makes constitutional sense
The voting public’s interest in information about electioneering communications
applies with equal force to candidates for multi-member bodies as to single
officeholders. Either way, disclosure “permits citizens * * * to react to the speech
* * * in a proper way,” and such “transparency enables the electorate to make `
informed decisions and give proper weight to different speakers and messages.”
Cii‘izens United, 558 U.S. at 371. Nor does the institute’s attempted distinction
between pending and proposed legislation hold up. Promises to introduce
legislation or executive regulations are as common a form of appeal to voters as
commitments to support existing bills and regulatory programs.m

ln short, whatever difference the 1nstitute may discern between express
candidate advocacy and the lnstitute’s proposed candidate~referencing issue
advertisement, it is not a distinction of constitutional magnitude

Thz'rd, and in any event, application of the large-donor disclosure
requirement to the lnstitute’s proposed Justice Safety Valve Act advertisement
passes constitutional muster. The Supreme Court subjects regulatory burdens

§

imposed on campaign~related speech to “exacting scrutiny,’ which requires a

‘substantial relation’ between the disclosure requirement and a ‘sufficiently

9 The Institute’s finer drawn distinctions underscore the difficulty that could accompany any
effort to determine the as-applied constitutionality of the donor disclosure provision to other
unidentified institute advertisements See Section lll.A, supra (discussing mootness).

10 See, e.g., Republican Party Platform of 1860, THE AMER[CAN PREsIDENcY PROJECT, ‘|] 8,
http://www.presidency.ucsb.edu/ws/?pid:29620 (“That the normal condition of ali the territory
of the United States is that of freedom: That, as our Republican fathers, when they had abolished
slavery in all our national territory, ordained that ‘no persons should be deprived of life, liberty
or property without due process of law,’ it becomes our duty, by legislation whenever such
legislation is necessary, to maintain this provision of the Constitution against all attempts to
violate it; and we deny the authority of Congress, of a territorial legislature or of any
individuals, to give legal existence to slavery in any territory of the United States.”) (emphasis
added).

18

important’ governmental interest.” Cifr`zens United, 558 U.S. at 366-367 (quoting
Buckley, 424 U.S. at 74.).

The Supreme Court has already held that the Bipartisan Campaign Reform
Act’s large~donor disclosure rule advances substantial and important governmental
interests in “providing the electorate with information, deterring actual corruption
and avoiding any appearance thereof, and gathering the data necessary to enforce
more substantive electioneering restrictions.” McConnell, 540 U.S. at 196; see
Ciz‘izens United, 558 U.S. at 369 (upholding the disclosure provision against
Citizens United’s as-applied challenge based on the government’s important
informational interest). The Institute’s advertisement triggers those same
informational interests because it links an electoral candidate to a political issuemm
pending federal legislation addressing unjust sentencing of criminal defendants-m
and solicits voters to press the legislative candidate for his position on the
legislation in the run up to an election. See Citizens United, 558 U.S. at 369
(concluding that such would “help viewers make informed choices in the political
marketplace”); McConnell, 540 U.S. at 196 (“The factual record demonstrates that
the abuse of the present law not only permits corporations and labor unions to fund
broadcast advertisements designed to influence federal elections, but permits them
to do so while concealing their identities from the public.”) (quoting McConnel[,
251 F. Supp. 2d at 237); see also SpeechNow.org v. FEC, 599 F.3d 686, 698 (D.C.
Cir. 2010) (en banc) (“But the public has an interest in knowing who is speaking
about a candidate and who is funding that speech, no matter whether the
contributions were made towards administrative expenses or independent
expenditures.”). Providing the electorate with information about the source of the
advertisement will allow voters to evaluate the message more critically and to
more fairly determine the Weight it should carry in their electoral judgments

Moreover, the large-donor disclosure requirement is tailored to substantially
advance those interests it “‘impose[s] no ceiling on campaign related activities,’
* * ’*‘ and ‘do[es] not prevent anyone from speaking.”’ Cirizens United, 558 U.S. at
366 (quoting MeConnell, 540 U.S. at 201). ln addition, disclosure is limited to
only those substantial donors who contribute 81000 or more, and do so for the
specific purpose of supporting the advertisement See ll C.F.R. § 104.20(c)(9);
Van Hol[en, Jr., 811 F.3d at 501.

19

As in Citizens United, that informational interest alone is sufficient to
uphold the disclosure provisions against the 1nstitute’s as-applied challenge See
558 U.S. at 369 (“[T]he informational interest alone is sufficient to justify
application of § 201 to these ads[.]”). That the Act’s disclosure provisions advance
additional governmental interests simply reinforces the constitutionality of the
Act’s application to the institute’s advertisement For instance, disclosure will
assist the public, the Federal Election Commission, and Congress in monitoring
those who seek to influence the issues debated during peak election season and to
link candidates in the voters’ eyes with specific policy matters See McConnell,
540 U.S. at 129~133. Additionally, large-donor disclosures help the Commission
to enforce existing regulations and to ensure that foreign nationals or foreign
governments do not seek to influence United States’ elections See Buck[ey, 424
U.S. at 67-68 (“[R]ecordk'eeping, reporting, and disclosure requirements are an
essential means of gathering the data necessary to detect violations of the
contribution limitations[.]”); 52 U.S.C. § 30121(a)(1)(C) (°‘lt shall be unlawful for
a foreign national, directly or indirectly to make an expenditure independent
expenditure or disbursement for an electioneering communication[.]”);
SpeechNow, 599 F.3d at 698 (“[R]equiring disclosure of such information deters
and helps expose violations of other campaign finance restrictions such as those
barring contributions from foreign corporations or individuals.”).ll

Disclosure will also “deter actual corruption and avoid the appearance of
corruption by exposing large contributions and expenditures to the light of
publicity.” Buckley, 424 U.S. at 67. Arming voters with information about “a
candidate’s most generous supporters,” whether direct or indirect, makes it easier
“to detect any post-election special favors that may be given in return.” ]d.
Indeed, given the information that the ]nstitute’s advertisement can convey to
voters, a challenger’s supporters could embrace the advertisement as a means of

ll The vital importance of determining if foreign nationals are supporting candidates has been
underscored in this election See Joint Statement from the Departrnent of llomeland Security
and Oflice of the Director of National lntelligence on Election Security, Director of National
Intelligence (OCt. 7, 2016), https://www.dnigov/index.php/newsroom/press-releases/2l5~press»
releases~2016/1423 -joint-dhs-odni-election-security~statement (“'l`he U.S. intelligence
Comrnunity (USIC) is confident that the Russian Government directed the recent compromises
of e-mails from US persons and institutions including from US political organizations”).

20

highlighting a point of difference with the incumbent or criticizing the incumbent’s
stance on or lassitude concerning an issue

2. Section 501(€) (3) Status

The 1nstitute’s argument that its status as a Section 50l(c)(3) tax-exempt
non~profit makes a constitutional difference fares no better. T he First Amendment
permits disclosure provisions that, as the Act does, regulate speech based on its
reference to electoral candidates, and not on the speaker’s identity or taxpaying
status See McConnell, 540 U.S. at 194 (explaining that the Act’s definition of
electioneering communications is constitutionally permissible in part because the
term, and its regulations “appl[y] only (1) to a broadcast (2) clearly idenri?j§)ing a
candidate for federal o]jtice, (3) aired within a specific time period, and (4) targeted
to an identified audience of at least 50,000 viewers or listeners.”) (emphasis
added). Indeed, it is the 1nstitute’s proposed speaker-specific exemption that could
stir up constitutional trouble See Simon & Schuster, Inc. v. Members ofNew York
State Crz`me Vr`ctims Bcl., 502 U.S. 105, 117 (1991) (“The government’s power to
impose content~based financial disincentives on speech does not vary with the
identity of the speaker.”); Pacz`fz`c Gas & Elec. Co. v. Publlc Utz`lilies Comm ’n of
Cal., 475 U.S. l, 8 (1986) (“The identity of the speaker is not decisive in
determining whether speech is protected.”).

The 1nstitute notes that the Commission once considered an exemption for
501(c)(3) organizations 1ndep. 1nst. Mot. for Summ. J. at 21 n. 12. But that
attempted distinction was struck down as arbitrary and capricious which
underscores the frailty of the lnstitute’s argument See Shays v. FEC, 337 F. Supp.
2d 28, 124-128 (D.D.C. 2004), aff’d on other grounds 414 F.3d 76 (D.C. Cir.
2005); See also Delaware Strong Familz`es v. Artorney Gen. ofDel., 793 F.3d 304,
308~309 (3d Cir. 2015) (rejecting a 501(0)(3) organization’s challenge to
Delaware’s BCRA analogue, and holding that “it is the conduct of an organization,
rather than an organization’s status with the l`nternal Revenue Service, that
determines whether it makes communications subject to the [Delaware] Act”);
Cenler for rlncllvidual Freeclom, ]nc. v. Tennanl, 706 F.3d 270, 289e290 (4th Cir.
20l3) (invalidating the 501(0)(3) exemption in West Virginia’s BCRA analogue
because that exemption materially undermined the government’s asserted “interest
in informing the electorate”).

21

Lastly, the institute cites to the D.C. Circuit’s decision striking down as void
for vagueness a disclosure provision in the Federal Election Campaign Act
Amendments of l974, Pub. L. No. 93~443, Title ll, § 208(a), 88 Stat. 1279
repealed by Federal Election Campaign Act Amendments of l976, Pub. L. No. 94-
283, 'i`itle l, § 105, 90 Stat. 48l (1976). See Buckley v. Voleo, 519 F.2d 821, 870~
879 (D.C. Cir. 1975), rev ’a.’ orr other grounds 424 U.S. 1 (1976). That disclosure
provision, however, was materially different from the one at issue here because it
(i) did not limit disclosure to large donors, and (ii) applied to publications and not
just broadcasting Icl. at 869. Nailing the coffin shut on the lnstitute’s argument,
the Supreme Court specifically held in McConnell that the definition of
electioneering communications in the Bipartisan Campaign Reform Act, and the
disclosure provision to which those communications are subject, “raise[] none of
the vagueness concerns that drove our analysis in Bnckley.” McConnell, 540 U.S.
at 194.

IV

ln conclusion, the lnstitute’s arguments that the Act’s large-donor disclosure
provisions are unconstitutional as applied to its Justice Safety Valve Act
advertisement all fail. lf the institute chooses to run that advertisement during the
balance of this election cycle or in future elections, it will have to comply with the
Bipartisan Campaign Reform Act’s disclosure provision, 52 U.S.C. § 30104(f).

A final, appealable order DENYING the lnstitute’s Motion for Summary
Judgment and GRANTING the Federal Election Commission’s l\/Iotion for
Summary Judgment accompanies this Opinion.

Signed on this 3rd day of November, 2016.

22

C©rss)\\eé>e

P§iricia/AYi\/nuee
United States Court of Appeals for the District of Colurnbia Circuit

j ,
Ce’飣&.) K}r)’@OA/‘r )[(@
Hon. Colleen Kollar-Kotelly
United States District Court for the District of Colurnbia

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I~I/on. A ` . Mehta
Un' d States District Court for the District of Columbia

23