By James Piereson
On February 27 the Supreme Court turned down an appeal in a case from Colorado that would have decided whether nonprofit organizations that run issue advertisements during election campaigns can be compelled to disclose the names and addresses of their donors…
In the Colorado case, the Independence Institute, a 501(c)(3) charitable organization, proposed to run a series of “issue advertisements” during the 2014 Senate campaign urging the state’s two senators to support a federal bill to reform guidelines for criminal sentences. The proposed ads addressed only this narrow issue and did not endorse or oppose any candidate for election. Nevertheless, under the McCain-Feingold Campaign Finance Act of 2002, the organization would have been required to make public its list of donors because the ads, though they were focused narrowly on issues, mentioned the name of a senator on the ballot within 60 days of the election…
According to the Center for Competitive Politics, more than 95 percent of all funds spent on election campaigns are subject to donor disclosure.
By James Piereson
Colorado Independent: US Supreme Court to Colorado think tank: Disclose your donors or don’t run these ads (In the News)
By Corey Hutchins
The outspoken think tank director said he saw the case as a good, clean test for the U.S. Supreme Court. So, with help from the Washington, D.C.-area Center for Competitive Politics- its motto: Campaign Freedom- up to the nation’s highest court the case went…
The High Court upheld the lower federal court ruling against the group Monday, without comment, essentially saying the lower court got it right.
“We are disappointed that the Supreme Court chose to forgo full consideration of this important appeal, and instead summarily affirmed the lower court,” said Center for Competitive Politics legal director Allen Dickerson in a statement. “We look forward to continuing our efforts to defend the right to free speech and association.”
Dickerson told The Independent he still believes there is tension between the court’s blessing of laws that regulate advocacy for or against candidates and its rulings in favor of “privacy of association” in other contexts. The radio ads were not attack ads against a candidate, he says, but rather a discussion about pending legislation that merely mentioned an officeholder who happened to be running for reelection.
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)…
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…
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.”
By Justin Cosgrove
The US Supreme Court affirmed the judgment in Independence Institute v. Federal Election Commission in a summary disposition on Monday. The case revolved around whether Congress may require organizations engaged in policy issues and unconnected to campaigns, to report to the Federal Election Commission (FEC) and publicly disclose their donors pursuant to the Bipartisan Campaign Reform Act of 2002. The Independence Institute wanted to run an ad in support of a bill that would give federal judges discretion for sentencing of non-violent crimes. In their advertisement, they mentioned the name of a sitting senator and were therefore qualified as an “electioneering communication.” Under such a designation, the Institute would be required to report to the FEC and disclose their donors. Upon challenging this provision before the US District Court for the District of Columbia, the court found in favor of the FEC. With their summary disposition, the justices affirmed the district court’s ruling without discussion.
The Supreme Court has upheld a requirement that forces groups to say who is paying for issue advertising directed at candidates in an approaching election.
The justices on Monday affirmed a lower court decision in a case involving ads that mention candidates but don’t call for the election or defeat of one.
The case involved a Colorado think tank called the Independence Institute and ads that it wanted to run in 2014 that mentioned Colorado Democratic senators Mark Udall and Michael Bennet. Udall lost his 2014 re-election bid, while Bennet won a second term in 2016. The Independence Institute said it wanted to run a similar spot in 2016.
The group objected to revealing the names of its largest contributors. Senate Majority Leader Mitch McConnell, R-Ky., supported the group’s Supreme Court bid.
By Barbara Leonard
The U.S. Supreme Court issued no comment Monday in upholding federal disclosure provisions concerning subtle advertisements meant to steer an election.
Passed as part of the McCain-Feingold Act, also known as the Bipartisan Campaign Reform Act, the disclosure provisions at issue were designed for a more subtle brand of electioneering.
Though these ads do not expressly advocate for the election or defeat of a candidate, they have the same effect as a campaign ad because of their content and proximity to an election.
The law imposes disclosure requirements on any group that spends more than $10,000 for a television or radio ad merely mentions the name of a federal candidate within 60 days of a general or 30 days of a primary election.
After a group called the Independence Institute challenged the law, a three-person panel of federal judges in Washington ruled for the Federal Election Commission this past November.
Represented by the Center for Competitive Politics, the Independence Institute took their case directly to the U.S. Supreme Court.
By Andrew Chung
The U.S. Supreme Court on Monday upheld federal disclosure rules for political advertising, rejecting an appeal by a Denver-based libertarian think tank that wanted to run an ad without being forced to divulge its major donors.
The Denver-based Independence Institute sued the Federal Election Commission, arguing the law requiring such disclosure violated its free speech rights under the U.S. Constitution’s First Amendment. The Supreme Court affirmed a lower court’s ruling last year in favor of the commission.
It was the latest in a decade-long series of cases brought by conservatives aiming to roll back federal campaign finance restrictions.
The Independence Institute was supported in the case by influential Republican and conservative voices including Republican Senate Majority Leader Mitch McConnell and the Judicial Watch legal activist group as well as the U.S. Chamber of Commerce business group.
ABA Journal: Issue advertising disclosure requirements upheld by SCOTUS in summary affirmance (In the News)
By Debra Cassens Weiss
In a summary affirmance, the U.S. Supreme Court on Monday upheld disclosure requirements that require groups that sponsor issue ads to disclose their donors to the Federal Election Commission.
The Supreme Court summarily affirmed (PDF) a decision on behalf of the FEC by the U.S. Court of Appeals for the D.C. Circuit…
The challenge by the conservative nonprofit Independence Institute argued that lower courts had misapplied two U.S. Supreme Court decisions on the subject. The group’s statement of jurisdiction had argued the lower courts are improperly and “routinely upholding virtually any disclosure regime, even those regulating the mere mention of an officeholder in the months before an election.”
“At a minimum,” the Independence Institute had argued, without success, the Supreme Court should “declare that the government may only impose reporting and disclosure requirements on speech that is unambiguously campaign related.”
By Amy Howe
The justices issued a one-sentence order of their own today in the case of Independence Institute, a Colorado nonprofit that “conducts research and educates the public concerning various aspects of public policy, including taxation, education, health care, and criminal justice.” The institute wanted to run an ad in support of a bill that would give federal judges discretion when sentencing non-violent offenders. But because the ad mentioned the name of one sitting senator who was up for re-election soon, it would qualify as an “electioneering communication.” That designation would in turn trigger a requirement for the group to file reports with the Federal Election Commission that would, among other things, disclose the group’s major donors. The Independence Institute objected to the disclosure requirement, arguing that it violates the First Amendment.
Election Law Blog: Breaking: Without Noted Dissent, Supreme Court Affirms Lower Court Allowing Disclosure in Major Campaign Disclosure Case (In the News)
By Rick Hasen
Today the Supreme Court affirmed (that is, agreed the lower court was correct, although not necessarily on the reasoning) in Independence Institute v. FEC, a major case which could have called into question the effectiveness of federal and state disclosure laws.
There was a full court press to hear this case-check out the large number of amicus briefs supporting review…
Twice (in McConnell v. FEC and Citizens United), the Supreme Court by lopsided majorities held that it is permissible to require disclosure of money spent on political speech, even if that speech does not contain magic words of advocacy, like vote for or vote against. Independence Institute was an attempt to get the Court to take a third bite at this apple, and to carve an exception for “genuine issue advocacy” which names candidates and could affect elections. The result of a reversal here would have been to create a kind of constitutional exemption to disclosure which would be easy for outside groups to get around-kind of what we are seeing on the federal level, but on the state and local level too.