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Independence Institute v. Federal Election Commission

United States District Court, District of Columbia

November 3, 2016


          Before: Millett, Circuit Judge; Kollar-Kotelly and Mehta, District Judges.


          Millett, Circuit Judge

         Independence Institute, a Colorado-based non-profit organization, filed suit against the Federal Election Commission seeking a declaratory judgment that the Bipartisan Campaign Reform Act's disclosure provision, 52 U.S.C § 30104(f), is unconstitutional as applied to a radio advertisement that it desired to run during the time leading up to the 2014 and 2016 general elections. Both Independence Institute and the Federal Election Commission move for summary judgment.[1] For the reasons discussed below, we DENY Independence Institute's Motion for Summary Judgment and GRANT the Federal Election Commission's Motion for Summary Judgment.


         Congress passed the Bipartisan Campaign Reform Act of 2002 ("Act"), Pub. L. No. 107-155, 116 Stat. 81 (codified in various parts of Title 52 of the U.S. Code), to address "[t]hree important developments" in the role of money in federal elections: "[T]he increased importance of 'soft money, ' the proliferation of 'issue ads, ' and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections, " which revealed some "elected officials' practice of granting special access in return for political contributions." McConnell v. FEC, 540 U.S. 93, 122, 129 (2003), overruled in part on other grounds by Citizens United v. FEC, 558 U.S. 310, 365 (2010) (upholding the Act's disclosure provision against Citizens United's as-applied challenge, but invalidating other provisions of the Act). Title I of the Act addresses the use of "soft money"-that is, donations made by individuals through political parties to benefit candidates. See 52 U.S.C. §§ 30101, 30104, 30116-30117, 30125. Title II, which is at issue here, regulates paid communications by outside organizations that could have the effect of "influencing the outcome of federal elections." See Id . at 132; see also 52 U.S.C. §§ 30101, 30104, 30116-30118, As relevant here, Section 30104 of the Act imposes a large-donor disclosure requirement on organizations that engage in candidate-referencing communications in the run up to a federal primary or general election. Specifically, the Act provides that:

Every person who makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount of $10, 000 during any calendar year shall, within 24 hours of each disclosure date, file with the Commission a statement containing the information described in paragraph (2).

52 U.S.C. § 30104(f)(1). Paragraph 2, in turn, requires the disclosure of "[t]he identification of the person making the disbursement"; "[t]he principal place of business of the person making the disbursement"; "[t]he amount of each disbursement of more than $200 during the period covered by the statement"; "the identification of the person to whom th[at] disbursement was made"; "[t]he elections to which the electioneering communications pertain"; "the names (if known) of the candidates identified or to be identified"; and "the names and addresses of all contributors who contributed an aggregate amount of $1, 000 or more" for the purpose of disseminating the electioneering communication. Id. § 30104(f)(2); see 11 C.F.R. § 104.20(c)(9) (requiring disclosure of qualifying donors only if the donation "was made for the purpose of furthering electioneering communications"); see also Van Hollen, Jr. v. FEC, 811 F.3d 486, 501 (D.C. Cir. 2016) (upholding the specific-purpose requirement in 11 C.F.R. § 104.20(c)(9)).

         The Act defines an "electioneering communication" that triggers such donor disclosure as "any broadcast, cable, or satellite communication" that:

(I) refers to a clearly identified candidate for Federal office;
(II) is made within-
(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.

52 U.S.C. § 30104(f)(3). When, as here, an electioneering communication refers to a Senate candidate, it is "targeted to the relevant electorate" if it "can be received by 50, 000 or more persons" in "the State the candidate seeks to represent[.]" Id. § 30104(f)(3)(C).


         Independence Institute is a non-profit organization that conducts research and seeks to educate the public on a variety of policy issues, including healthcare, justice, education, and taxation. Indep. Inst.'s Statement of Undisputed Material Facts, ECF No. 36-2 ("Indep. Inst. SUMF") ¶ 1.[2] The Institute is a 501(c)(3) tax-exempt organization, 26 U.S.C. § 501(c)(3), based in Colorado. Indep. Inst. SUMF ¶ 2. As a part of its educational mission, the Institute produces advertisements that "mention the officeholders who direct" the policies of interest to the Institute. Compl. ¶ 2.

         United States Senator Mark Udall of Colorado was a candidate for reelection in the November 4, 2014 general election. In the sixty days preceding that election, Independence Institute sought to run a radio advertisement that urged Coloradoans to call Senator Udall, as well as Senator Michael Bennet, to express support for the Justice Safety Valve Act, S. 619, 113th Cong. (2013) (reintroduced as S. 353, 114th Cong. (2015)). Indep. Inst. SUMF ¶¶ 3-5. The content of the advertisement is as follows:

Let the punishment fit the crime.
But for many federal crimes, that's no longer true.
Unfair laws tie the hands of judges, with huge increases in prison costs that help drive up the debt.
And for what purpose?
Studies show that these laws don't cut crime.
In fact, the soaring costs from these laws make it harder to prosecute and lock up violent felons.
Fortunately, there is a bipartisan bill to help fix the problem - the Justice Safety Valve Act, bill number S. 619.
It would allow judges to keep the public safe, provide rehabilitation, and deter others from committing crimes.
Call Senators Michael Bennet and Mark Udall at 202-224-3121. Tell them to support S. 619, the Justice Safety Valve Act.
Tell them it's time to let the punishment fit the crime.
Paid for by Independence Institute, 121 dot org. Not authorized by any candidate or candidate's committee. Independence Institute is responsible for the content of this advertising.

Id. ¶ 5. Independence Institute planned to spend at least $10, 000 on the advertisement, which would have reached at least 50, 000 persons in the Denver metropolitan area. Id. ¶ 4.

         The Institute, however, declined to run the advertisement during the 2014 election cycle because it was concerned that doing so would subject the Institute to the Bipartisan Campaign Reform Act's large-donor disclosure provision. Indep. Inst. SUMF ¶ 3 (noting that the Institute "wished to broadcast" the advertisement during the 2014 election season). Instead, in September 2014, the Institute filed suit against the Federal Election Commission asserting that application of the Act's disclosure provision to the specific Justice Safety Valve Act advertisement described above violated the First Amendment. The Institute also asked that its case be heard by a three-judge district court, as authorized by the Act, 52 U.S.C. § 30110 note. See Mot. to Convene Three-Judge Court, ECF No. 3. A single district court judge denied that motion on ...

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