FEC Disclosure Rules for Ads Referring to Candidates Upheld

By Kenneth P. Doyle

Nov. 3 — Federal Election Commission disclosure requirements applied to political ads known as “electioneering communications” have been upheld by a three-judge federal court panel ( Independence Institute v. FEC, D.D.C., No. 14-cv-1500, 11/3/16 ).

The special panel of the U.S. District Court for the District of Columbia rejected a constitutional challenge to FEC disclosure requirements, which was brought by a Colorado-based nonprofit group called the Independence Institute.

The institute said it wanted to sponsor a targeted, pre-election broadcast ad in 2014 that mentioned a U.S. Senate candidate—former Sen. Mark Udall (D-Colo.)—but focused on legislation. The ad would fall under the FEC’s rules requiring disclosure of those funding electioneering communications, but the group maintained that under the First Amendment it should not have to disclose its funding sources.

Possible Supreme Court Review

The case was considered under special, fast-track rules for constitutional challenges for campaign rules. That means the ruling by the three-judge court can be appealed immediately to the Supreme Court, setting up a possible new test of campaign finance disclosure before the high court.

The three-judge court panel’s 23-page ruling was written by U.S. Circuit Judge Patricia Millett and emphasized previous federal court rulings upholding FEC disclosure requirements, even for messages that don’t directly call for votes. The ruling said the Independence Institute offered “no administrable rule or definition” for the types of messages that should be free from disclosure requirements.

“The Institute emphasizes that the advertisement here focused on pending legislation, not candidates,” the judge wrote. “Yet it would blink reality to try to divorce speech about legislative candidates from speech about legislative issues for which they will be responsible.”

The ruling was joined by the two other judges on the panel, U.S. District Judges Colleen Kollar-Kotelly and Amit Mehta.

2014 Ad Never Aired

The Independence Institute was represented in the case by attorney Allen Dickerson of the Center for Competitive Politics, a nonprofit that is critical of campaign finance regulations.

When asked during a court hearing in October about the type of ads the institute believed should be protected from disclosure requirements, Dickerson pointed only to the ad the group said it wanted to sponsor in Colorado in 2014. The ad referred to the position of Udall and Sen. Michael Bennet, both Colorado Democrats, on a federal sentencing bill. The ad was never aired.

The three-judge district court that decided the case was convened after a ruling by the U.S. Court of Appeals for the D.C. Circuit last March, which held that the disclosure challenge must be heard under special rules for constitutional challenges to campaign finance law. Following that ruling, lawyers for the FEC, who defended the agency’s disclosure requirements in court, filed a summary judgment motion. The FEC argued that the Supreme Court has upheld disclosure requirements for electioneering communications in previous cases, including 2010 ruling in Citizens United v. FEC.

The requirements were established by the 2002 Bipartisan Campaign Reform Act (BCRA). In considering the constitutionality of BCRA’s disclosure requirements, the FEC said, the Supreme Court explicitly rejected the argument that disclosure must be limited to communications that expressly advocate for election or defeat of a candidate.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at phendrie@bna.com

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