Supreme Court Backs FEC Disclosure Rules

By Kenneth P. Doyle

Federal Election Commission disclosure rules for political ads known as electioneering communications have been upheld as constitutional by the U.S. Supreme Court ( Independence Institute v. FEC, U.S., 16-743, affirmed 2/27/17).

The move followed previous cases in which the high court has upheld disclosure rules even as it rolled back limits on campaign spending.

The justices affirmed without comment Feb. 27 a lower court ruling that supported the FEC’s electioneering communications rules against a challenge filed by a Colorado-based conservative nonprofit group called the Independence Institute.

The case initially was slated to be considered at the Supreme Court’s private conference on Feb. 17 but was relisted for the Feb. 24 conference. The Feb. 27 order simply announced that the lower ruling was affirmed, meaning that the case would not be heard by the justices.

Chamber, McConnell Backed Challenge

The case involved the nonprofit group’s objections to FEC requirements to disclose donors funding political ads that refer to candidates but focus on policy issues. A host of politically active nonprofits, such as the U.S. Chamber of Commerce, and others such as Senate Majority Leader Mitch McConnell (R-Ky.), filed friend-of-the-court briefs urging the Supreme Court to use the case to limit disclosure requirements.

Lawyers for the Independence Institute urged the Supreme Court to reverse a ruling last November by a special three-judge court in the U.S. District Court for the District of Columbia. The lower court emphasized previous federal court rulings upholding FEC disclosure requirements, even for messages that don’t directly call for votes.

The case was considered under special fast-track rules for constitutional challenges for campaign rules. That meant the ruling by the three-judge court could be appealed directly to the Supreme Court, but the high court wasn’t required to hear arguments in the case or write a full opinion.

While a majority of the justices previously have indicated support for campaign finance disclosure rules, some have questioned whether current rules are too stringent. However, none of the justices indicated dissent from the Feb. 27 order in the Independence Institute case.

Disclosure ‘Routinely’ Upheld

The federal government defended the disclosure rules in court, and a motion filed last month on behalf of the FEC said the Supreme Court already “has twice considered and twice upheld” the FEC disclosure requirements at issue in the case. The motion cited the high court’s 2003 decision in McConnell v. FEC and the 2010 ruling in Citizens United v. FEC, both of which upheld disclosure requirements for certain political ads, even if they don’t contain wording directly asking for votes.

The government’s motion to dismiss or affirm the lower court ruling was filed in January by Ian Gershengorn, the acting solicitor general in the Obama administration’s Justice Department. Gershengorn was replaced by the current acting solicitor general, Noel Francisco, following President Donald Trump’s inauguration.

Lawyers for the Independence Institute, led by Allen Dickerson of the nonprofit Center for Competitive Politics (CCP), have acknowledged in court filings that previous rulings have “routinely” upheld FEC disclosure requirements. But, the challengers argued that this case presented “an opportunity to reverse this trend and broadly safeguard” a right to fund some political messages anonymously.

The institute’s lawyers argued that disclosure requirements can violate First Amendment free speech guarantees, unless the government has a strong interest in disclosure. They said the government’s “informational interest is particularly weak” in this case because it involved a radio ad focused on a legislative issue and didn’t mention anything about an election.

Ad Targeted Udall

The case was first launched in 2014, when the Independence Institute said it wanted to sponsor a radio ad calling on then-Sen. Mark Udall (D-Colo.) to support a sentencing overhaul bill. Because the ad was to be aired shortly before Udall was up for reelection, it was subject to FEC disclosure requirements for electioneering communications—targeted TV and radio ads that refer to a federal candidate in the 60 days before a general election or 30 days before a primary.

Under FEC rules implementing the 2002 Bipartisan Campaign Reform Act, sponsors of such ads must report their donors.

The lead attorney in the challenge to FEC rules, Dickerson of the CCP, said in a statement that the challengers were “disappointed that the Supreme Court chose to forego full consideration of this important appeal, and instead summarily affirmed the lower court. We look forward to continuing our efforts to defend the right to free speech and association.”

The center’s chairman, Bradley Smith, a former Republican FEC commissioner, said uncertainty over the limits of disclosure law has led to passage of “intrusive laws that provide little or no value to the public, and enable official and unofficial harassment of speakers.”

Disclosure Supporters Hail Ruling

Backers of campaign finance regulation, on the other hand, applauded the Supreme Court’s move to uphold FEC disclosure rules.

“The public has a right to know who is spending large sums of money to influence their vote and to shape the laws and regulations that impact everyone,” said Tara Malloy, deputy executive director at the Campaign Legal Center.

Rick Hasen, an election law expert and professor at the University of California, Irvine, said in his Election Law Blog that the Supreme Court “has been steadily whittling away and striking down campaign laws limiting contributions and spending in elections, [but] it has held the line on the constitutionality of disclosure laws.”

Hasen added that the court’s latest move to uphold disclosure rules was a “small, but real, victory for those who support reasonable campaign finance regulation.”

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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