Independence Institute v. Federal Election Commission
216 F. Supp. 3d 176
D.D.C.2016Background
- Independence Institute (501(c)(3) Colorado non-profit) planned a radio ad urging constituents to call Senators Bennet and Udall to support the Justice Safety Valve Act, intended to run within 60 days before the 2014 general election. The ad named candidates, would reach 50,000+ listeners, and the Institute would spend ≥ $10,000.
- Under 52 U.S.C. § 30104(f) (Bipartisan Campaign Reform Act), such "electioneering communications" trigger disclosure of donors who gave ≥ $1,000 for the purpose of funding the communication.
- The Institute sued the FEC seeking a declaratory judgment that applying the Act's large-donor disclosure provision to this specific ad violated the First Amendment; cross-motions for summary judgment followed.
- The D.C. Circuit directed this case to a three-judge district panel; the panel considered mootness (2014 election passed) and concluded the challenge was not moot because the Institute intended to run the ad again in 2016.
- The court found the ad met the statutory definition of an electioneering communication and rejected the Institute's arguments that the disclosure rule is unconstitutional as applied to this ad.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether case is moot | Institute asserted it intends to run materially similar ads in future so controversy persists | FEC argued original target (Udall 2014) no longer a candidate so claim might be moot | Not moot: Institute represented it would run the same ad in 2016 (case justiciable) |
| Whether "issue" advocacy naming a candidate is exempt from donor disclosure | Institute: "genuine issue" advocacy about legislation must be exempt from large-donor disclosure even if a candidate is named | FEC: McConnell/Citizens United permit disclosure when speech names candidates close to an election; disclosure is less-restrictive and serves important interests | Held: No issue-advocacy exception; naming a candidate within the statutory window permits disclosure consistent with binding precedent |
| Whether disclosure requirement survives exacting scrutiny as applied | Institute: disclosure not sufficiently related to an important government interest for this ad | FEC: disclosure advances informational interest, deters corruption/appearance, and aids enforcement (including foreign influence) and is narrowly tailored | Held: Disclosure satisfies exacting scrutiny; informational and anti-corruption interests justify the requirement as applied |
| Whether 501(c)(3) status entitles speaker to exemption from disclosure | Institute: its tax-exempt status forbids political activity and thus should exempt it from donor-disclosure | FEC: statute targets communications (content/time/target), not speaker tax status; speaker-based exemption would be problematic and was rejected in precedent | Held: 501(c)(3) status does not exempt Institute; disclosure provision applies based on conduct and content, not IRS status |
Key Cases Cited
- McConnell v. FEC, 540 U.S. 93 (upheld BCRA disclosure rules and rejected a content-based issue/express-advocacy exception)
- Citizens United v. FEC, 558 U.S. 310 (upheld disclosure requirements as constitutional; rejected limiting disclosure to express-advocacy equivalents)
- FEC v. Wisconsin Right to Life, 551 U.S. 449 (held election timing can make pre-election targeted issue ads capable of repetition despite election passing)
- Buckley v. Valeo, 424 U.S. 1 (framework for reviewing disclosure rules; informational and anti-corruption interests)
- SpeechNow.org v. FEC, 599 F.3d 686 (discussed public interest in knowing who speaks about candidates; disclosure utility)
- Van Hollen v. FEC, 811 F.3d 486 (upheld specific-purpose donor qualification requirement for BCRA disclosures)
- Independence Institute v. Williams, 812 F.3d 787 (10th Cir. decision discussing materially similar issue-advocacy and disclosure under analogous state law)