United States District Court, D. Columbia.
For Independence Institute, A Colorado nonprofit corporation, Plaintiff: Allen Joseph Dickerson, CENTER FOR COMPETITIVE POLITICS, Alexandria, VA.
For Federal Election Commission, Defendant: Erin R Chlopak, LEAD ATTORNEY, Michael Andrew Columbo, FEDERAL ELECTION COMMISSION, Washington, DC.
For Campaign Legal Center, Democracy 21, Public Citizen, Inc., Amicuss: Joseph Gerald Hebert, LEAD ATTORNEY, LAW OFFICES OF JOSEPH GERALD HEBERT, Alexandria, VA.
COLLEEN KOLLAR-KOTELLY, United States District Judge.
Plaintiff Independence Institute, a Colorado non-profit organization, brought this action against Defendant Federal Election Commission (" FEC" ), seeking declaratory and injunctive relief declaring that the disclosure provisions of the Bipartisan Campaign Reform Act of 2002 (" BCRA" ) are unconstitutional as applied to a specific radio advertisement that Plaintiff plans to run before the November 4, 2014, federal elections. Presently before the Court are Plaintiff's  Application for a Three Judge Court and Plaintiff's  Motion for Preliminary Injunction. In the interest of expediting the resolution of this action, the parties agreed that the Court would rule on the merits of the Complaint as opposed to the preliminary injunction. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court DENIES Plaintiff's motions. Plaintiff's claims are foreclosed by clear United States Supreme Court precedent, principally by Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). See id. at 366-71. Having considered the merits of this dispute, the Court enters JUDGMENT for Defendant. Accordingly, this action is DISMISSED in its entirety.
A. Factual and Procedural Background
Independence Institute is a nonprofit corporation that " conducts research and educates the public on various aspects of public policy--including taxation, education policy, health care, and justice policy." Compl. ¶ 2. Independence Institute plans to produce a radio advertisement that will ask the current United States senators from Colorado, Mark Udall and Michael Bennet, to support the Justice
Safety Valve Act. Id. ¶ ¶ 3, 31, 32. Senator Udall is up for reelection on November 4, 2014. Id. ¶ ¶ 31, 41. Plaintiff agrees that its planned advertisement meets BCRA's definition of an " electioneering communication" and that, therefore, the statute requires it to disclose contributors. Id. ¶ 4; Pl.'s Mot. at 4. However, Plaintiff claims that the disclosure requirement is overbroad as applied to the radio advertisement that it plans to run. Compl. ¶ ¶ 114, 129. In particular, Plaintiff argues that the disclosure requirements of BCRA section 201 are overbroad as applied because the advertisement is genuine issue advocacy rather than express advocacy or the functional equivalent thereof. See Pl.'s Mot. at 17, 22-23. Plaintiff also emphasizes that the Independence Institute is organized pursuant to section 501(c)(3) of the Internal Revenue Code and that the content of the advertisement is not pejorative towards Senator Udall. Id. at 18, 23. As discussed below, Plaintiff's arguments are unavailing.
Plaintiff brought this action seeking declaratory and injunctive relief with respect to the advertisement it plans to run. Plaintiff seeks to have the merits adjudicated by a three-judge court. Plaintiff also filed a motion for preliminary injunction because the 60-day window before the November election, during which BCRA's requirements apply, had already begun. In the interest of expediting the resolution of the case, the parties agreed to consolidate briefing on the preliminary injunction with briefing on the merits, relying initially on Plaintiff's merits arguments with respect to the preliminary injunction. Joint Stip. at 1-2. The parties further agreed, " in light of Plaintiff Independence Institute's agreement not to supplement its Motion for Preliminary Injunction (Docket No. 5) with supplemental substantive briefing or evidence, for the Court to consider Plaintiff's Motion for Preliminary Injunction as a Motion for Summary Judgment and to follow the briefing schedule" previously set by the Court with respect to the preliminary injunction. Id. The parties also stipulated that " this case presents an as-applied challenge to 52 U.S.C. § 30104(f)(1)-(2) based upon the content of the Independence Institute's intended communication, and not the possibility that its donors will be subject to threats, harassment, or reprisals." Id. at 1.
B. Legal Background
1. Statutory Framework
The Bipartisan Campaign Reform Act of 2002, 116 Stat. 81, amended the Federal
Election Campaign Act of 1971 (" FECA" ), as well as other statutory provisions. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 114, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), overruled on other grounds by Citizens United, 558 U.S. at 310. In addition to other requirements, BCRA mandates certain disclosures pertaining to " electioneering communications." See Citizens United, 558 U.S. at 366. " An electioneering communication is defined as 'any broadcast, cable, or satellite communication' that 'refers to a clearly identified candidate for Federal office' and is made within 30 days of a primary or 60 days of a general election."  Id. at 321 (quoting 2 U.S.C. § 434(f)(3)(A), now codified at 52 U.S.C. § 30104(f)(3)(A)).
Pursuant to BCRA section 201, " any person who spends more than $10,000 on electioneering communications within a calendar year must file a disclosure statement with the FEC."  Id. at 366. " That statement must identify the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of certain contributors." Id. The reporting of contributions is limited to " contributors who contributed an aggregate amount of $1,000 or more."  52 U.S.C. § 30104(f)(2)(E), (F). In McConnell, the Supreme Court upheld section 201's disclosure provisions against a facial challenge. See 540 U.S. at 197. But the Supreme Court did not " foreclose possible future challenges to particular applications of that requirement." Id. at 199. In Citizens United, in an as- applied challenge, the Supreme Court upheld the section 201 disclosure requirement " as applied to the ads for the movie [ Hillary ] and to the movie itself." 558 U.S. at 367.
In addition, BCRA section 203 originally prohibited corporations and unions from spending general treasury funds to finance electioneering communications, as defined in the Act. McConnell, 540 U.S. at 204. After having upheld this provision against a facial challenge in McConnell, see id. at 209, the Supreme Court invalidated the expenditure prohibition as related to corporations and unions in Citizens United, see 558 U.S. at 318-19. Even though section 203 is not at issue in this litigation, it provides the context for the case law that resolves this dispute.
2. Three-Judge Court
Pursuant to BCRA section 403(a)(3), " any action  brought for declaratory
or injunctive relief to challenge the constitutionality of any provision of [the] Act . . . shall be heard by a 3-judge court," in accordance with 28 U.S.C. § 2284. 52 U.S.C. 30110 note. The statute leaves the district judge with " the vexing initial determination of whether an action is required to be heard and determined by a three-judge court." Feinberg v. Federal Deposit Ins. Corp., 522 F.2d 1335, 1338, 173 U.S.App.D.C. 120 (D.C. Cir. 1975) (construing 28 U.S.C. § 2284). " A single district judge need not request that a three-judge court be convened if a case raises no substantial claim or justiciable controversy. . . . Constitutional claims may be regarded as insubstantial if they are 'obviously without merit,' or if their 'unsoundness so clearly results from the previous decisions of (the Supreme Court) as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.'" Id. at 1338-39 (citations omitted). See Schonberg v. Fed. Election Comm'n, 792 F.Supp.2d 14, 17 (D.D.C. 2011) (applying the D.C. Circuit's interpretation of section 2284 in Feinberg to BCRA § 403(a)). The Court concludes that Plaintiff's challenge is " clearly foreclosed by Supreme Court precedent." Rufer v. Fed. Election ...