Circuit Court Urged to Reject Challenge to Disclosure Provisions Upheld by Supreme Court in Citizens United

Today, the Campaign Legal Center, joined by Democracy 21 and Public Citizen, filed an amici brief in Independence Institute v. Federal Election Commission (FEC), urging the U.S. Court of Appeals for the D.C. Circuit to dismiss a challenge to the federal “electioneering communications” disclosure provisions upheld by the Supreme Court in its 2010 decision in Citizens United v. FEC.

“As it did in the lower court, Independence Institute is attempting to relitigate the Supreme Court’s 8-1 decision in Citizens United to uphold this exact disclosure law,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “It argues that disclosure laws can reach no further than communications that are the ‘functional equivalent of express advocacy.’  But the Supreme Court has specifically considered and rejected this contention, holding instead that the public has a broad interest in knowing the identities of those financing candidate advertising directly before the election.”

Independence Institute sought to run a broadcast ad referring to Senator Mark Udall (D-CO) shortly before Election Day 2014 without disclosing its donors.  The challenged law requires such disclosure when groups spend 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 election or 30 days of a primary election.  Congress enacted the “electioneering communications” disclosure law as part of the McCain-Feingold Act to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads.  Since then, the Supreme Court has twice upheld the “electioneering communications” disclosure requirements: first in McConnell v. FEC (2003) in a facial challenge, and again in Citizens United v. FEC (2010) in an as-applied challenge nearly identical to the current lawsuit.

To read the brief, click here.

To read the district court’s opinion, click here.