Daily Report for Executives provides in-depth coverage of unfolding legislative, regulatory, and judicial news from the nation’s capital, the states, and around the world. This daily news service...
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.
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.
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 firstname.lastname@example.org
To contact the editor responsible for this story: Paul Hendrie at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)