Independence Institute v. Federal Election Commission
816 F.3d 113
D.C. Cir.2016Background
- Independence Institute, a Colorado 501(c)(3) nonprofit, sought to run a 2014 radio ad supporting federal sentencing reform and urging contact with two U.S. Senators. Because one senator was an incumbent candidate, the ad qualified as an "electioneering communication" under BCRA, which triggers donor-disclosure requirements.
- The Institute sued the FEC, arguing BCRA's disclosure requirement is unconstitutional as applied to its proposed ad and sought a three-judge district court under BCRA's judicial-review provision.
- The single District Court denied the request for a three-judge court and, on the merits, rejected the Institute's as-applied First Amendment challenge relying on McConnell and Citizens United.
- On appeal the D.C. Circuit reviewed de novo whether a three-judge court was required and whether the Institute’s claims were insubstantial under Shapiro v. McManus.
- The Institute advanced two central arguments: (1) its 501(c)(3) status distinguishes it from groups in Citizens United and may alter the constitutional analysis of disclosure; and (2) compelled disclosure should apply only where communications are "unambiguously campaign related."
- The majority held the 501(c)(3)-based as-applied challenge was not "wholly insubstantial," so the case must proceed before a three-judge district court; it reversed and remanded for convening that court. The dissent would dismiss for lack of jurisdiction as frivolous, viewing the Buckley/Citizens United line as foreclosing the Institute’s Buckley-based argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a three-judge district court is required under BCRA/28 U.S.C. §2284 | Institute requested three-judge court per BCRA's provision directing such panels for constitutional challenges | FEC argued the claim is insubstantial so §2284 does not apply | Court: §2284 entitles Institute to a three-judge court because the claim is not "wholly insubstantial" under Shapiro/Goosby |
| Whether Institute's as-applied First Amendment challenge (based on 501(c)(3) status) is insubstantial | 501(c)(3) status distinguishes it from Citizens United and may give stronger privacy interests and weaker governmental interests in disclosure | FEC: McConnell and Citizens United render the claim frivolous/insubstantial | Court: The 501(c)(3) argument is not "essentially fictitious"; allowed to proceed before three-judge court |
| Whether compelled disclosure must be limited to communications that are "unambiguously campaign related" (Buckley gloss) | Disclosure permitted only for speech that is unambiguously campaign-related or express advocacy | FEC: McConnell and Citizens United rejected that restriction; disclosure covers broader electioneering communications | Court: Did not decide this issue; because at least one non-insubstantial argument exists, case must go to three-judge court |
| Whether the single-judge district court could enter judgment on the merits before convening three judges | Institute: asked to convene three-judge court before adjudication | FEC: single judge had previously decided merits against Institute | Court: Single judge must not enter merits when §2284 applies; vacated judgment and remanded to convene three-judge court |
Key Cases Cited
- McConnell v. FEC, 540 U.S. 93 (2003) (upheld BCRA disclosure requirement against facial challenge; allowed future as-applied challenges)
- Citizens United v. FEC, 558 U.S. 310 (2010) (rejected limiting BCRA disclosure to express advocacy or its functional equivalent)
- Shapiro v. McManus, 136 S. Ct. 450 (2015) (three-judge panel entitlement; insubstantial-claim exception is narrow)
- Goosby v. Osser, 409 U.S. 512 (1973) (defines "insubstantial" claims that do not require three-judge courts)
- Buckley v. Valeo, 424 U.S. 1 (1976) (distinction between express advocacy and issue advocacy discussed; later cases interpret its scope)