Ten Amicus Briefs Urge Supreme Court to Hear Full Arguments in Free Speech and Donor Privacy Case

Alexandria, VA – Ten amicus briefs, including briefs from U.S. Senate Majority Leader Mitch McConnell and multiple well-known national groups, urge the U.S. Supreme Court to hear full arguments in a free speech case implicating important issues of donor privacy, Independence Institute v. FEC. Under federal campaign finance laws, the Supreme Court must rule on the constitutionality of the law in question, but may opt to do so by summarily affirming the lower court, and without ordering oral argument. A favorable ruling in the case would safeguard the privacy of donors to nonprofit groups speaking about issues of public importance. The Court has never ruled on this question before.

Notable amici include U.S. Senate Majority Leader Mitch McConnell, ten First Amendment scholars, including Stanford Law School Professor Michael W. McConnell and former ACLU President Nadine Strossen, the Philanthropy Roundtable, U.S. Chamber of Commerce, the State Policy Network and 24 state think tanks, the Institute for Justice and the Cato Institute, among others.

In the case, The Independence Institute – a well-established Colorado think tank – sought to run an ad urging citizens to contact their U.S. senators and express their support for a sentencing reform bill. The ad did not advocate the election or defeat of candidates, or even mention the upcoming elections. It did not even say whether the state’s two senators have taken a position on the bill. The ad also did not praise or criticize either senator. Yet, to run the ad, the Independence Institute must file reports with the Federal Election Commission (FEC), and provide personal information about its donors.

“We are very pleased by the strong amici support for this potentially landmark case,” said David Keating, President of the Center for Competitive Politics (CCP). The Institute is represented in court by CCP’s attorneys.

Keating noted that “the Supreme Court has never upheld a law that forces the public listing of donors to organizations engaged in genuine issue advocacy, as opposed to campaign ads. Despite that fact, there is confusion in the lower courts over the reach of campaign finance laws invading donor privacy. As a result, these laws are becoming more common and intrusive.”

For instance, last year, New York passed a law that violates donor privacy if a group spends over $10,000 on speech naming any public official or candidate at any time. Another provision in New York’s law ends donor privacy for charities that provide just $2,500 of support for any social welfare group that engages in a broad definition of “lobbying.” Several years ago, Delaware passed a law ending donor privacy for charities that publish nonpartisan, neutral voter guides. While portions of the New York law are currently being challenged, the Supreme Court recently declined to hear a challenge to Delaware’s law on behalf of Delaware Strong Families (DSF). The Center represented DSF in court.

In Buckley v. Valeo (1976), the Supreme Court ruled that governments may only demand information about an organization’s members and donors if the group either existed for the primary purpose of electing candidates, or primarily engaged in speech “expressly advocating” the election or defeat of a candidate – that is, using words such as “vote for,” “defeat,” or “support.” In McConnell v. FEC (2003), the Court expanded its holding in Buckley to allow the government to require the reporting of donors to organizations that engaged in the “functional equivalent” of express advocacy, a phrase it then interpreted narrowly in Wisconsin Right to Life v. FEC (2007). However, in recent years, lower courts have seized on a single line in Citizens United v. FEC (2010) to argue that any “election related” speech, meaning almost any speech touching on public issues, can trigger detailed reporting about the members and supporters of an organization for publication in an online government database.

Below are select excerpts from notable amicus briefs filed in the case:

U.S. Senate Majority Leader Mitch McConnell: “Senator McConnell submits that this case provides the Court a critical opportunity to reconcile the tension between Citizens United and Buckley. That tension may be resolved by making clear that any government interest in publicly identifying persons engaged in campaign-related speech does not correlate to or outweigh the right to anonymity of a speaker engaged in non-campaign-related issue speech. This distinction would effectuate the legislative intent behind the disclosure provisions…any interest in disclosure does not outweigh the core First Amendment right of the Institute’s donors to remain anonymous in their discussion of issues.”

Ten First Amendment Scholars: “[T]his Court would benefit from serious briefing and argument regarding the role of anonymous and pseudonymous speech as part of the original understanding of the freedom of speech and of the press.”

Philanthropy Roundtable: “Most important is that many donors will not give unless they can keep their donations confidential. Many donors, for example, give anonymously out of deeply held religious convictions. Some do so to live a more private life and avoid broadcasting their wealth to the world.”

The U.S. Chamber of Commerce: “The [district court’s] ruling sets a dangerous precedent that will substantially chill core political speech at a time when states are passing ever-more-restrictive disclosure requirements.”

State Policy Network (SPN) and 24 State Public Policy Groups: “Absent this Court’s correction of the decision…SPN and its member-affiliates will remain compelled to deal with this burgeoning influx of state electioneering communications laws. Compliance with all these laws is burdensome and expensive, and it will cause many nonprofits simply to stay silent.”

Institute for Justice and the Cato Institute: “[F]orcing people to divulge their names, addresses, and political leanings exposes them to reprisals. Every election cycle brings fresh evidence of this phenomenon; even the most basic acts of civic engagement can trigger threats of violence, lawsuits, and career-ending social-media crusades.”

To read more about Independence Institute v. FEC, and access links to all the briefs and amicus briefs filed in the case, click here.

The Center for Competitive Politics is now the Institute for Free Speech.