Tenth Circuit Upholds Disclosure Laws in Free Speech v. FEC


Yesterday, the U.S. Court of Appeals for the Tenth Circuit upheld an earlier district court ruling upholding federal rules regulating political committees and other independent spenders in Free Speech v. FEC. The Campaign Legal Center, joined by Democracy 21, had filed an amici brief in the case, which is one of a long line of challenges to federal disclosure laws.  A Wyoming group called Free Speech brought the case to challenge the “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the Federal Election Commission’s (FEC) methodology for determining when a group has campaign activity as its “major purpose.” Both rules serve to implement the federal disclosure laws and inform the FEC’s determination of political committee status.

The subpart (b) definition of express advocacy is crucial because it captures sham issue ads that do not say “vote for” or “vote against” a candidate, but “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”

“The Supreme Court and the Circuits have repeatedly and definitively recognized the compelling public interest in disclosing the groups or individuals that spend on advertising to influence our elections,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “This suit, like a flurry of similar suits nationwide, asked the court to ignore precedent and reject the public’s right to know who or what group is spending large amounts of money to determine the winners and losers on Election Day.  In particular, Free Speech ignored altogether the Supreme Court decision in Wisconsin Right to Life v. FEC, which articulated a test for the ‘functional equivalent of express advocacy’ that is virtually identical to the FEC test that was challenged in this case.”

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 filed to overturn the regulations in the U.S. District Court for the District of Wyoming.  The Campaign Legal Center, joined by Democracy 21, filed comments with the FEC and an amici brief with the court in opposition.  In October 2012 the District Court refused to grant the injunction citing a “wall of precedent” upholding disclosure laws. The Tenth Circuit Court adopted that decision as its own.

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

To read the order in the Tenth Circuit Court, click here.