United States District Court, District of Columbia
Before: Millett, Circuit Judge; Kollar-Kotelly and Mehta,
Millett, Circuit Judge
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. For the reasons discussed below, we DENY
Independence Institute's Motion for Summary Judgment and
GRANT the Federal Election Commission's Motion for
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)).
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
(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
(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).
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") ¶
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.
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
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.
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 ...