Institute for Free Speech Urges D.C. Circuit to Protect Political Speech from Private Enforcement

The Institute filed an amicus brief in an effort to protect speakers from costly litigation when the FEC declines to pursue an investigation

September 28, 2023   •  By IFS Staff   •    •  
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Washington, DC — The Institute for Free Speech today filed an amicus brief in the U.S. Court of Appeals for the District of Columbia in Campaign Legal Center v. 45Committee, Inc., urging the court to affirm the dismissal of a lawsuit against an advocacy organization—a lawsuit that could harm political speech.

The case stemmed from a Federal Election Commission (FEC) complaint filed by the Campaign Legal Center (CLC) against 45Committee, a nonprofit organization. The FEC did not garner the four votes necessary to launch an investigation based on the complaint, with the commissioners split along party lines. Despite decades of tradition of the FEC then ministerially closing the file and publicly announcing the dismissal, the FEC failed to disclose its decision on the complaint, which eventually allowed the CLC to file suit against the 45Committee.

The district court properly dismissed the case for lack of jurisdiction after the FEC released its previously undisclosed records showing that it voted against enforcement. Private enforcement is only allowed when the FEC fails to act on a complaint or acts “contrary to law” and then fails to conform to a court order in such situations.

In its amicus brief, the Institute argues that the district court’s dismissal should be upheld because an enforcement vote constitutes definitive action by the FEC, precluding a private enforcement suit. The brief explains that Congress structured the FEC to prevent partisan enforcement, crafting the law so that it must obtain bipartisan agreement before launching investigations.

Allowing private lawsuits following tie votes, as CLC urges, would eviscerate those protections. A partisan bloc of commissioners could effectively deputize private litigants to serve as enforcers against political opponents. Such an outcome would chill crucial First Amendment political speech.

The brief also condemns the FEC’s practice of not making public its votes after a decision not to open an investigation. This practice is not only contrary to its transparency obligations, but it prevents disclosure of the FEC’s decision to relevant parties and the public. Speakers should not be left in limbo, uncertain if a years-old complaint may still result in an investigation.

Finally, the Institute criticizes the FEC for procedural irregularities that appeared to have kept the complaint against 45Committee pending indefinitely to engineer the private lawsuit. The scheme intentionally deprived 45Committee of knowing of the FEC’s decision.

“Structuring the FEC to reach bipartisan agreement to pursue an investigation or find a violation is critical to protecting political speech, but some now want to ignore that wisdom,” said Institute for Free Speech Senior Attorney Brett Nolan. “Authorizing private suits by hiding the FEC’s decision from the public and the court would unleash the very threat Congress acted to prevent. The First Amendment right to political speech should not be held hostage by such irresponsible actions.”

To read the amicus brief in the case, Campaign Legal Center v. 45Committee, Inc., click here.

About the Institute for Free Speech

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment.

IFS Staff

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