Free Speech v. Federal Election Commission
2013 U.S. App. LEXIS 12996
| 10th Cir. | 2013Background
- Free Speech, an unincorporated nonprofit formed in Feb. 2012 by three Wyoming residents, sued the FEC (July 2012) claiming certain FEC regulations and policies abridge its First Amendment rights.
- Challenges attacked 11 C.F.R. §100.22(b) (definition of "express advocacy"), the FEC's solicitation standard for contributions, and the FEC's case-by-case approach to political committee ("major purpose") determinations; claims brought facially and as-applied.
- Free Speech sought a preliminary injunction (denied orally); the denial was appealed to the Tenth Circuit, but the district court proceeded to decide the FEC’s 12(b)(6) motion on the merits.
- The district court applied exacting scrutiny (disclosure-only burdens) rather than strict scrutiny because the rules at issue impose disclosure/disclaimer requirements rather than prohibitions on speech.
- The court dismissed the complaint for failure to state a claim, adopting reasoning that: §100.22(b) accords with Supreme Court functional-equivalent tests; the solicitation standard is a permissible basis for disclosure; and the FEC’s multi-factor, case-by-case major-purpose approach is constitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Definition of "express advocacy" (11 C.F.R. §100.22(b)) | §100.22(b) is vague and overbroad; express advocacy should be limited to Buckley "magic words." | §100.22(b) correctly captures the functional equivalent of express advocacy consistent with WRTL, McConnell, and Citizens United. | Dismissed: §100.22(b) withstands exacting scrutiny and is consistent with controlling precedent (functional-equivalent test). |
| Solicitation standard for contributions (when a request is a "solicitation") | The FEC’s solicitation test is vague/overbroad and fails to provide clear guidance. | The solicitation standard (SEF test) targets disclosures, serves transparency, and survives exacting scrutiny; advisory-opinion variations do not make the rule void. | Dismissed: the solicitation standard is constitutional; disclosure requirements are substantially related to important governmental interests. |
| Political-committee status — "major purpose" test | FEC’s case-by-case approach is arbitrary and chills speech; a clearer categorical rule is required. | A contextual, multi-factor case-by-case inquiry is appropriate and consistent with Buckley and administrative flexibility. | Dismissed: the FEC’s multi-factor, major-purpose, case-by-case approach is permissible and not an unlawful deterrent to speech. |
| Standard of review for disclosure rules | Plaintiff urged strict scrutiny. | Disclosure requirements are subject to exacting scrutiny (intermediate), not strict scrutiny. | Court applied exacting scrutiny and found the disclosure regimes substantially related to important governmental interests; claims fail under that standard. |
Key Cases Cited
- Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (supports functional-equivalent test and upholds disclosure requirements)
- Buckley v. Valeo, 424 U.S. 1 (1976) (articulated "magic words" express-advocacy construction)
- McConnell v. Federal Election Commission, 540 U.S. 93 (2003) (upheld regulation of functional equivalents of express advocacy)
- Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (adopted test for functional equivalent of express advocacy)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for Rule 12(b)(6))
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard informing Iqbal)
- Real Truth About Abortion, Inc. v. Federal Election Commission, 681 F.3d 544 (4th Cir. 2012) (upheld FEC’s functional-equivalent and major-purpose approaches)
- Federal Election Commission v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 1995) (solicitation disclosure standard)