Introduction
Appellant Independence Institute hereby responds to the Federal Election Commission’s (“FEC” or “Commission”) Motion for Summary Affirmance. Additionally, Appellant moves for summary reversal of the district court’s ruling and an order convening a three-judge district court pursuant to the Bipartisan Campaign Reform Act of 2002 (“BCRA”) Pub. L. No. 107-155 § 403, 116 Stat. 81, 113-14 (2002) (codified at 52 U.S.C. § 30110 note).
The Independence Institute sought to air a radio advertisement in the weeks leading up to the 2014 election. That advertisement dealt solely with a legislative issue: federal sentencing reform. The advertisement exhorted the listener to contact his or her United States senators and tell them to support a particular sentencing reform measure, the Justice Safety Valve Act. One of the two senators mentioned in the ad, Mark Udall, was seeking re-election. Even though the ad does not, in any sense, “electioneer,” it falls within the Bipartisan Campaign Reform Act’s definition of an “electioneering communication.” Because of this fact, if the Institute runs its ad, federal law requires the Institute to publicly disclose its donors.
This raises two constitutional issues. First, in the campaign finance context, the Supreme Court has explicitly limited donor disclosure to situations where an organization’s speech is “unambiguously campaign related,” so as to protect issue speech from governmental regulation. While it is true that the Court has upheld donor disclosure for “electioneering communications” facially (in McConnell v. FEC, 540 U.S. 93 (2003)) and as-applied to commercial advertisements for a film critical of then-Senator Hillary Clinton’s 2008 presidential candidacy (in Citizens United v. FEC, 558 U.S. 310 (2010)), it has never been asked to rule on an as- applied challenge concerning the sort of genuine issue speech involved here. Indeed, the last time the government sought to regulate issue speakers in a similar matter, the Supreme Court narrowed the reach of the statute to protect genuine issue speakers. Buckley v. Valeo, 424 U.S. 1, 44, 79-80 (1976).
Second, at the time of filing, the FEC insisted that only contributors who earmarked their contributions for “electioneering communications” would be publicly disclosed, pursuant to a Commission regulation. Mere hours after the FEC filed its Motion, a federal court struck down that regulation. This significantly raises the stakes in this case, as the Institute explicitly noted when it filed its lawsuit. If the ad at issue here were to air in sufficient proximity to an election, all donors who gave more than $1,000 to the Institute—a Section 501(c)(3) charity whose donors are kept private by operation of federal tax law—would be publicly disclosed. See, e.g., 26 U.S.C. 6104(d)(3)(A) (a § 501(c)(3) Form 990 “shall not require the disclosure of the name or address of any contributor of the organization”); 26 U.S.C. § 6104(b) (providing for disclosure of the organization’s name and address, but “[n]othing in this subsection shall authorize the Secretary [of the Treasury] to disclose the name or address of any contributor to any organization or trust”). This is, again, a circumstance the Supreme Court has never addressed, for the simple reason that this was not the law when Citizens United was decided. Citizens United v. FEC, 540 F. Supp. 2d 274, 280 (D.D.C. 2008) (“requiring that any corporation spending more than $10,000 in a calendar year to produce or air electioneering communications must file a report with the FEC that includes—among other things—the names and addresses of anyone who contributed $1,000 or more in aggregate to the corporation for the purpose of furthering electioneering communications”) (emphasis supplied).
This is not a brief on the merits of either claim. That is because Congress has commanded that constitutional questions of this type must be heard by a three- judge district court. This is a novel challenge that deals with distinct facts and law that were not before the Citizens United Court. Consequently, the district court below erred in determining, without holding a hearing, that Supreme Court precedent necessarily forecloses the Institute’s claims. The appropriate remedy is to summarily reverse that decision, and allow for full consideration of the merits as Congress intended. 52 U.S.C. § 30110 note (constitutional challenges “shall be filed in the United States District Court for the District of Columbia and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States Code”) (emphasis supplied).
