Watchdogs Defend Federal Disclosure Laws in Latest Challenge Filed in Wyoming


Today, the Campaign Legal Center, joined by Democracy 21, filed an amici brief with the U.S. District Court for the District of Wyoming in the latest challenge to federal disclosure laws.  Free Speech v. FEC concerns a challenge to 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,” an important step in the larger 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 has repeatedly upheld disclosure provisions by overwhelming margins.  This lawsuit ignores that precedent, and specifically theWisconsin Right to Life decision, in which the Supreme Court defined the ‘functional equivalent of express advocacy’ using a definition nearly identical to the regulation being challenged here,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “There is a compelling public interest in revealing the groups or individuals seeking to buy influence with candidates and officeholders, as the Supreme Court has long recognized.  Plaintiff’s case is long on rhetoric but very short on legal substance as its attorneys are forced to dance around Supreme Court precedent directly contradicting their position.”

In March of this year, Free Speech submitted an advisory opinion request to the FEC proposing to run a series of attack ads and seeking to avoid registering as a political committee in order to hide the identities of its contributors.  The Campaign Legal Center, together with Democracy 21, filed comments with the FEC at the time urging the Commission to advise the organization “Free Speech” that many of its ads were “express advocacy,” and as a result, it would likely be required to register and report as a political committee.

This case is just one of a series of lawsuits challenging state, local and federal disclosure laws as part of a nationwide litigation campaign seeking to undermine transparency in politics.

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 by the Campaign Legal Center and Democracy 21, click here.

To read the comments filed with the FEC in March, click here.