Supreme Court Turns Down Challenge to FEC’s PAC Disclosure Requirements


Today, the Supreme Court denied certiorari in Free Speech v. FEC, letting stand a decision by the Tenth Circuit Court of Appeals to uphold FEC rules and policies relating to the determination of “political committee” status and, by extension, the registration and reporting requirements applicable to such committees.

On June 25, 2013, the Tenth Circuit sustained the FEC’s “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), which defines this term broadly to capture ads that do not say “vote for” or “vote against” a candidate, but still can “only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”  The Tenth Circuit also approved the FEC’s multi-factor approach for determining when a group has campaign activity as its “major purpose” – an approach that considers not only the group’s spending on “express advocacy,” but also its public and internal documents relating to its central organizing purpose.  Without these measures many groups active in elections could evade the requirement that they fully disclose their spending and donors. 

“We are pleased that the Supreme Court has left undisturbed FEC rules that broadly define what type of groups must provide comprehensive disclosure of their political activities.  Whether the Commission will emerge from its current gridlock to vigorously enforce these rules is a different question, but the decision certainly gives the FEC the green light,” stated Campaign Legal Center Senior Counsel Tara Malloy.  “This ruling also joins many earlier decisions by the High Court holding that a ‘magic words’-style definition of express advocacy does not represent the outer boundary of permissible political disclosure or political committee status.  Instead the Supreme Court has consistently recognized that the public has a right to transparency in connection to a wide range of advertising designed to influence their vote on Election Day.”

The Free Speech challenge began in March of 2012, when the group submitted an advisory opinion request to the FEC proposing to run a series of attack ads without registering as a political committee or complying with the disclosure requirements for political committees.  When the FEC informed the group it would be in violation of the regulations if it proceeded, the group challenged the regulations in the U.S. District Court for the District of Wyoming.  In October 2012 the district court refused to grant the injunction and in June 2013, the Tenth Circuit Court adopted that decision as its own.  The Campaign Legal Center, joined by Democracy 21, filed comments with the FEC, as well as an amici briefs with both the district court and the Court of Appeals. 

The Legal Center and Democracy 21 were aided in this litigation by Larry B. Jones of Simpson, Kepler & Edwards, LLC, the Cody, Wyoming Division of Burg Simpson Eldredge Hersh & Jardine, P.C.

To read the amici brief filed by the Campaign Legal Center and Democracy 21 in the Court of Appeals, click here.