Can a think tank run ads advocating for public policy without first disclosing its donors to the federal government? That is the question at the core of Independence Institute v. FEC.

The Independence Institute (“Institute”) is a well-established Colorado think tank whose mission is “is to empower individuals and to educate citizens, legislators and opinion makers about public policies that enhance personal and economic freedom.” In 2014, the Institute wanted to run advertisements discussing important issues of public policy. Specifically, the ads urged Coloradans to contact their senators and ask them to support a bill reforming federal criminal sentencing rules. While the Institute wanted to run these ads in close proximity to the election—when citizens were likely paying attention to policy—the ads neither advocated the election or defeat of candidates, nor even mention the upcoming contests.

But the Bipartisan Campaign Finance Reform Act of 2002 (a.k.a. McCain-Feingold) forces disclosure and registration requirements upon any group that runs an ad that merely mentions the name of a candidate for office. In order to run these ads, the Independence Institute is required to file reports with federal authorities and provide personal information about its donors to be published online on the Federal Election Commission’s public website. The law fails to adequately account for the fact that many candidates are also sitting lawmakers, and so improperly covers groups, like the Institute, that wish to engage in genuine issue speech.

“While the government may require disclosure for speech related to elections,” said CCP Legal Director Allen Dickerson, “a long line of Supreme Court cases protect the First Amendment right to speak about public issues while maintaining the privacy of speakers and their supporters.”

Donors and speakers have many reasons to protect their privacy. Some fear retaliation from government officials who disagree with them. Others fear physical harm or threats to themselves and their families, vandalism to their property, loss of jobs, or boycotts of their business if they support unpopular positions. Some just value their privacy, or don’t want their contributions to spur numerous requests for their assistance from other groups discussing other issues.

CCP is defending both the rights of Independence Institute to speak about public policy without first gaining permission from the government, and the rights of donors to give privately to causes they believe in.

A backgrounder on the litigation can be found here. Our press statement on the Supreme Court’s decision to affirm the lower court’s ruling in the case without comment can be found here.

Case Documents

U.S. Supreme Court

• Opposition to Motion to Dismiss or Affirm (January 26, 2017)
• Solicitor General’s Motion to Dismiss or Affirm (January 9, 2017)
• Jurisdictional Statement (December 5, 2016)
• Amicus Curiae Brief of Senate Majority Leader Mitch McConnell in Support of Independence Institute (January 9, 2017)
• Amici Curiae Brief of Constitutional Law, Political Science, and Economics Professors in Support of Independence Institute (January 9, 2017)
• Amicus Curiae Brief of the Philanthropy Roundtable in Support of Independence Institute (January 9, 2017)
• Amicus Curiae Brief of the Chamber of Commerce of the United States in Support of Independence Institute (January 9, 2017)
• Amici Curiae Brief of State Policy Network and 24 State Public Policy Groups in Support of Independence Institute (January 9, 2017)
• Amici Curiae Brief of the Institute for Justice and Cato Institute in Support of Independence Institute (January 9, 2017)
• Amicus Curiae Brief of Free Speech Defense and Education Fund, Free Speech Coalition, United States Justice Foundation, Gun Owners Foundation, Gun Owners of America, National Right to Work Committee, U.S. Constitutional Rights Legal Defense Fund, Conservative Legal Defense and Education Fund, Downsize DC Foundation, and DownsizeDC.org in Support of Independence Institute (January 9, 2017)
• Amicus Curiae Brief of Center for Constitutional Jurisprudence in Support of Independence Institute (January 5, 2017)
• Amici Curiae Brief of Judicial Watch, Inc. and Allied Educational Foundation in Support of Independence Institute (January 4, 2017)
• Amicus Curiae Brief of Randy Elf in Support of Independence Institute (January 4, 2017)

DC Circuit Court of Appeals

• Opinion, United States Court of Appeals, for the District of Columbia Circuit (March 1, 2016)
• Supplemental Brief for the FEC (January 6, 2016)
• Independence Institute’s Supplemental Brief (January 6, 2016)
• Answer Brief for FEC (May 8, 2015)
• Citizens United, Citizens United Foundation, U.S. Justice Foundation, Free Speech Coalition, Free Speech Defense and Education Fund, and Conservative Legal Defense and Education Fund in Support of Appellant and Reversal (April 15, 2015)
• Opening Brief  (April 8, 2015)
• Joint Appendix (April 8, 2015)
• Opening Brief for Plaintiff-Appellant (April 8, 2015)
• Appellant Independence Institute’s Reply in Support of Its Motion for Summary Reversal (December 29, 2014)
• FEC’s Reply in Support of its motion for Summary Affirmance and in Opposition to Cross-Motion for Summary Reversal (December 22, 2014)
• Motion for Summary Reversal and Response to Motion for Summary Affirmation (December 8, 2014)
• FEC Motion for Summary Affirmance (November 25, 2014)

DC District Court 

• Three-Judge Panel Memorandum Opinion (November 3, 2016)
• Opposition to Defendant’s Cross-Motion for Summary Judgment and Reply In Support of Motion for Summary Judgment (August 12, 2016)
• Amici Curiae Brief of Campaign Legal Center, Democracy 21, and Public Citizen, Inc. in Opposition to Plaintiff’s Motion for Summary Judgement and in Support of Defendant’s Cross-Motion for Summary Judgement (July 27, 2016)
• Amici Curiae Brief of Free Speech Defense and Education Fund, Free Speech Coalition, U.S. Justice Foundation, Gun Owners Foundation, National Right to Work Committee, U.S. Constitutional Rights Legal Defense Fund, Downsize DC Foundation, DownsizeDC.Org, Conservative Legal Defense and Education Fund, and Policy Analysis Center in Support of Plaintiff (June 28, 2016)
• Independence Institute’s Motion for Summary Judgment and Memorandum in Support (June 17, 2016)
  • Exhibit A
• DC District Circuit Opinion (April 20, 2015)
• Order Denying 3 Judge Panel and Motion for Preliminary Injunction  (October 6, 2014)
• Memorandum Opinion (October 6, 2014)
• Memorandum in Support of Motion for Preliminary Injunction (September 4, 2014)
• Motion for Preliminary Injunction (September 4, 2014)
• Complaint (August 29, 2014)

Commentary

• The Wall Street Journal: Supreme Court Disclosure Test, by Editorial Board (February 16, 2017)
• More Soft Money Hard Law: The New Free Speech Anxieties, by Bob Bauer (January 18, 2017)
• Philanthropy Daily: Philanthropy Roundtable petitions Supreme Court to uphold donor privacy (January 11, 2017)
• Cato Institute: Campaign-Finance Rules Chill Speech Unrelated to Election Campaigns, by Ilya Shapiro and Thomas Berry (January 9, 2017)
• More Soft Money Hard Law: Are There Genuine Issue Ads or Just “Sheep’s Wool”?, by Bob Bauer (December 2, 2016)
• The Washington Times: The right to speak and be left alone, by Scott Blackburn (September 22, 2014)
• Washington Examiner: Federal lawsuit challenges McCain-Feingold disclosure law, by David Yates (September 4, 2014)