Supreme Court Set to Eye Challenge to FEC Disclosure Rules

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By Kenneth P. Doyle

The Supreme Court is set to decide soon whether to review the latest challenge to disclosure requirements for political ads, which was rejected by a lower court last year ( Independence Institute v. Federal Election Commission, U.S., No. 16-743, cert. petition filed 12/8/16).

The challenge to Federal Election Commission disclosure rules for “electioneering communications,” filed by a Colorado-based conservative nonprofit group called the Independence Institute, is slated to be considered at the justices’ private conference Feb. 17.

The case involves 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 other nonprofits and Senate Majority Leader Mitch McConnell (R-Ky.) have filed friend-of-the-court briefs urging the Supreme Court to use the case to limit disclosure requirements.

‘Twice Considered, Twice Upheld.’

Lawyers for the Independence Institute are asking the high 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, setting up a new test of campaign finance disclosure before the high court.

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 the Independence Institute challenge or affirm the lower court ruling was filed Jan. 9 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 Trump’s inauguration.

Courts ‘Routinely’ Rule for Disclosure

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

In a brief opposing the government’s motion filed with the Supreme Court, the institute’s lawyers 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.

The case was first launched in 2014, when the institute said it wanted to sponsor a radio ad calling on former Sen. Mark Udall (D-Colo.) to support a sentencing reform bill. Because the ad was to be aired shortly before Udall was up for re-election, it was subject to FEC disclosure requirements for electioneering communications.

These communications include 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.

McConnell Supports Challenge

Weighing in with briefs to support the institute’s bid for Supreme Court review of disclosure rules were nearly a dozen nonprofit groups and others, including McConnell, a longtime critic of campaign finance regulation.

A brief filed on behalf of McConnell said the case provided a “critical opportunity” to make clear that “any government interest in publicly identifying persons engaged in campaign-related speech does not correlate to or outweigh the right to anonymity of a speaker engaged in non-campaign-related issue speech.”

McConnell’s brief added that “any interest in disclosure does not outweigh the core First Amendment right of the Institute’s donors to remain anonymous in their discussion of issues.”

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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