D.C. Circuit Court Urged to Reject Challenge to Disclosure Provisions Upheld by Supreme Court in Citizens United

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Today, Democracy 21 and Public Citizen joined the Campaign Legal Center in filing an amici brief in Independence Institute v. Federal Election Commission (FEC),urging theU.S. Court of Appeals for the D.C. Circuit to dismiss a challenge to the federal “electioneering communications” disclosure provisions upheld by the Supreme Court in its 2010 decision in Citizens United v. FEC.

“As bad as the recent Supreme Court campaign finance decisions have been, the one point that the Court has gotten right is that disclosure of electioneering communications is constitutional,” said Democracy 21 Counsel Donald Simon. “Yet the Independence Institute here still argues that this disclosure requirement is unconstitutional, even though the same disclosure provision has been upheld – twice – by the Supreme Court.  The arguments made by the plaintiff here are little short of frivolous and we expect the D.C. Circuit Court of Appeals will have little trouble in affirming the district court’s dismissal of this challenge.”

Independence Institute sought to run a broadcast ad referring to Senator Mark Udall (D-CO) shortly before Election Day 2014 without disclosing its donors.  The challenged law requires such disclosure when groups spend more than $10,000 on “electioneering communications”—defined as any television or radio ad that mentions the name of a federal candidate within 60 days of a general election or 30 days of a primary election.  Congress enacted the “electioneering communications” disclosure law as part of the McCain-Feingold Act to curb widespread evasion of earlier disclosure requirements that applied only to “express advocacy” ads.  Since then, the Supreme Court has twiceupheld the “electioneering communications” disclosure requirements: first in McConnell v. FEC (2003) in a facial challenge, and again in Citizens United v. FEC (2010) in an as-applied challenge nearly identical to the current lawsuit.

To read the brief, click here.