Independence Institute v. Federal Election Commission
70 F. Supp. 3d 502
D.D.C.2014Background
- Independence Institute (a Colorado 501(c)(3) nonprofit) planned a radio ad before the 2014 general election urging Senators to support S.619 (Justice Safety Valve Act).
- The Institute conceded the ad met BCRA’s definition of an “electioneering communication” and would trigger BCRA §201 donor-disclosure requirements.
- Plaintiff filed an as-applied challenge seeking declaratory and injunctive relief and requested a three-judge court; parties agreed to resolve merits promptly.
- Plaintiff argued the disclosure requirement is overbroad as applied because the ad is issue advocacy (not express advocacy or its functional equivalent) and because the Institute is a 501(c)(3).
- The Court declined to convene a three-judge court, concluded Citizens United forecloses Plaintiff’s claim, entered judgment for the FEC, and dismissed the action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BCRA §201 donor-disclosure may be applied to an ad that is issue advocacy (not express advocacy or its functional equivalent) | §201 is overbroad as applied; Buckley/WRTL II require limiting disclosures to express advocacy or functional equivalent | Citizens United and McConnell allow disclosure of electioneering communications regardless of express-advocacy distinction | Court: Denied — Citizens United controls; disclosure applies to the ad |
| Whether Plaintiff’s 501(c)(3) tax status changes constitutional analysis | 501(c)(3) status means different First Amendment protections and less reason to disclose donors | Tax status is irrelevant to §201’s constitutional application; Citizens United’s holding not limited by organization type | Court: Denied — tax status immaterial |
| Whether Citizens United’s discussion of disclosures is dicta and non-binding | Citizens United’s disclosure language was dicta and factually distinguishable | Citizens United’s rejection of the express-advocacy limitation for disclosures is binding precedent | Court: Denied — treated Citizens United as controlling precedent |
| Whether Buckley/WRTL II require a different result for disclosure rules | Buckley/WRTL II support limiting regulation of issue speech and should constrain §201 | Buckley’s express-advocacy test was statutory construction for FECA; WRTL II addressed expenditure limits, not disclosure; Citizens United applied exacting scrutiny and upheld disclosure | Court: Denied — Buckley/WRTL II do not undercut Citizens United’s disclosure holding |
Key Cases Cited
- Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010) (rejects limiting BCRA §201 disclosures to express advocacy or its functional equivalent)
- McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003) (upheld BCRA disclosure provisions against facial challenge and explained Buckley’s express-advocacy line was statutory construction)
- Buckley v. Valeo, 424 U.S. 1 (1976) (established express-advocacy/’magic words’ framework as statutory construction in FECA context)
- Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (as-applied ruling invalidating corporate expenditure restriction; does not extend to disclosure rules)