Independence Institute v. FEC

Summary

Independence Institute v. Federal Election Commission (2016) is part of a long-running challenge to the federal electioneering disclosure provisions passed as part of the McCain-Feingold Act, also known as the Bipartisan Campaign Reform Act (BCRA).

On Nov. 3, 2016, the three-judge district court rejected the challenge brought by the Colorado-based nonprofit Independence Institute, finding that the First Amendment does not protect groups from complying with federal disclosure laws just because their candidate-focused ads don’t include an outright endorsement. This upheld the federal communications disclosure provisions.

The constitutional challenge was upheld by the Supreme Court on direct appeal on Feb. 27, 2017.

Background

The BCRA disclosure provisions were designed to capture a wider array of advertisements than those that “expressly advocate” the election or defeat of a candidate—encompassing all ads that have the intended effect of a campaign ad due to their content and proximity to an election. Specifically, BCRA requires disclosure from any group that spends more than $10,000 on “electioneering communications”—defined as any television or radio ad that mentions the name of a federal candidate within 60 days of a general or 30 days of a primary election.

The disclosure requirement was upheld in a challenge in McConnell v. FEC (2003) and again in Citizens United v. FEC (2010).

The Center for Competitive Politics (CCP), counsel to Independence Institute, has appealed the decision to the U.S. Supreme Court.  Because the case is on direct appeal, the Supreme Court has to issue a decision on their appeal, although it could be as simple as a summary affirmance of Judge Millet’s opinion. Opponents of disclosure like CCP believe that disclosure should extend no further than “express advocacy” or its equivalent despite multiple Supreme Court decisions rejecting this exact position.

What’s at Stake?

As Judge Patricia Millett recognized in her opinion on Nov. 3, 2016, the electorate has an interest in knowing who is spending large sums of money to air ads about candidates shortly before an election, and having that information "will allow voters to evaluate the message more critically and to more fairly determine the weight it should carry in their electoral judgments." This interpretation is consistent with the majority opinion in Citizens United, where eight out of nine justices favored disclosure.