Watchdogs File in Defense of Disclosure Laws in 10th Circuit in Free Speech v. FEC


Today, the Campaign Legal Center, joined by Democracy 21, filed an amici brief with the U.S. Court of Appeals for the Tenth Circuit in the latest of a long line of challenges to federal disclosure laws.  Free Speech v. FEC is 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).”

“This suit, like many others before it, ignores Supreme Court precedent upholding disclosure laws by overwhelming margins. Again and again the Court has recognized the compelling public interest in disclosing the groups or individuals seeking to buy influence with candidates and officeholders,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “In particular the Free Speech brief ignores altogether the Supreme Court decision in Wisconsin Right to Life v. FEC in which the Court articulated its own test for the ‘functional equivalent of express advocacy’ which is virtually identical to the test being challenged in the Free Speech case.”

This case is part of a flood of litigation nationwide challenging state, local and federal disclosure laws in an attempt to undermine transparency in the political process. Most recently, the Fourth Circuit Court of Appeals rejected a similar challenge to the same regulations in Real Truth About Abortion v. FEC.

Free Speech began its challenge in March of 2012, by submitting 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. Not getting the answer it wanted, the group filed suit against 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 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 today in the Court of Appeals by the Campaign Legal Center and Democracy 21, click here.

To read the order in the District Court, click here.