By Editorial Board
Donor disclosure has become a weapon of political intimidation, and it could get worse. The Supreme Court will soon consider whether ads that discuss policy issues without advocating for a candidate can be regulated and the names of their financial backers disclosed under campaign-finance laws…
The 2002 McCain-Feingold Act says that any group that runs an ad including the name of a candidate within 30 days of a primary or 60 days of a general election must disclose its donors like a political-action committee. Yet the Independence Institute merely intended to communicate with voters on issues, not advocate for a candidate…
The Supreme Court will consider the Independence Institute appeal in a private conference Friday. If the Justices uphold the lower court, much more political speech will fall under the federal campaign-finance dragnet. Here’s hoping Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, will clarify that donor disclosure violates the Constitution when it imposes undue burdens on Americans who advocate for causes-especially those that might be unpopular.
By Editorial Board
By Kenneth P. Doyle
A filing due next month in a key Supreme Court case could provide the first indication of whether the Trump administration will seek to uphold or challenge longstanding campaign finance laws that restrict unlimited “soft money” contributions to political parties (Republican Party of Louisiana v. Federal Election Commission, U.S., No. 16-865, jurisdictional statement filed 1/6/17)…
The high court also has another pending campaign finance case challenging FEC disclosure rules for political ads known as “electioneering communications,” Independence Institute v. FEC. The justices are set to consider at their private conference Feb. 17 whether to accept the Independence Institute case for a full review and oral argument.
With the death last year of Justice Antonin Scalia, the court is now evenly divided between four justices who have voted consistently to roll back campaign finance rules and four justices who have generally supported current rules. Neil Gorsuch, President Trump’s nominee to fill the Supreme Court vacancy left by Scalia’s death, has been criticized by supporters of strong campaign finance rules, who say that, like Scalia, Gorsuch is expected to continue on the path toward less regulation of money in politics.
Pillar of Law: Common Cause Wary of Judge Who Cleaned Up Part of Their Mess in Colorado (In the News)
By Stephen Klein
Rather than acknowledge its goof in helping create the “ill-advised Colorado statute” that led to the Riddle case, Common Cause now warns of the level of scrutiny Judge Gorsuch might apply generally to campaign finance limits. But the problems with Amendment 27 did not end with Riddle: Common Cause’s jewel is in many other ways the antithesis to “a functioning democracy to debate our differences” and one of the main reasons we need judges like Gorsuch who should apply the strictest First Amendment scrutiny to campaign finance regimes.
Thanks to Amendment 27, grassroots speakers in Colorado have had to go to federal court to fight off campaign finance requirements over raising just a few thousand dollars to fight a local annexation effort. To comply with registration and reporting requirements to raise and spend so little money would eat up most of the budget. More recently, another group had to bring a similar suit just to publish a policy paper. The cases took years to resolve, and cost hundreds of thousands of dollars in legal fees.
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)…
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.
By Kate Howard
Independence Institute v. Federal Election Commission
Issue: Whether Congress may require organizations engaged in the genuine discussion of policy issues, unconnected to any campaign for office, to report to the Federal Election Commission, and publicly disclose their donors, pursuant to the Bipartisan Campaign Reform Act of 2002.
By Ben Paynter
One of the longest held rules in charity is that nonprofits don’t have to publicly disclose who has given them money. It’s a First Amendment issue, since the Supreme Court intervened during the Civil Rights era when state governments in the South tried to make the NAACP publicize its donor lists. Knowing a donor’s association with a controversial cause might lead to them or their group being threatened, limiting their chance for free expression…
Perhaps most surprisingly, while left-leaning groups created the precedent, it’s now right-wing organizations that are paying to defend it. The two cases in question are Americans for Prosperity Foundation v. Becerra, in which the group, which organizes grassroots support of conservative political action, has challenged the California attorney general’s request that all tax-exempt nonprofits submit non-redacted donor lists, ostensibly to give the state more oversight into organizational scams or group corruption. And Independence Institute v. Federal Election Commission, where the organization, a think tank devoted to research and advance libertarian causes, is arguing that if a group issues only policy-influencing ads (instead of candidate-supporting ads) during a campaign election period, they should be exempt from federal election laws that require sharing political donations.
By Bruce Edward Walker
Post-Citizens United, the left doubled down on free-speech efforts in a manner that makes even the most outrageous claims about McCarthyism seem banal by comparison. In her book, Strassel hopscotches through these efforts adroitly beginning with the targeting of Tea Party groups by the Internal Revenue Service team led by Lois Lerner…
Just last week, amicus briefs were filed with the U.S. Supreme Court related to Independence Institute vs. FEC. At issue is the Federal Election Commission’s demand for the Colorado-based Independence Institute’s donor information after the think tank ran an advertisement urging readers to contact their legislators in support of a sentencing reform bill.
Donors possess any number of reasons for desiring anonymity for their political activities, including freely yet privately expressing their respective religious beliefs in the public sphere without any threat of retaliation. Strassel’s Intimidation Game is perhaps the best casebook explaining why demanding donor transparency is far worse than McCarthyism.
By Edward Zuckerman
The U.S. Supreme Court received 10 friend-of-the-court briefs urging full review of a case that tests a Federal Election Commission requirement to disclose donors who finance ads that do not serve an election-related purpose but instead generate support or opposition to a public policy issue. Briefs were filed by a disparate group that included U.S. Senate Majority Leader Mitch McConnell, former American Civil Liberties Union President Nadine Strossen, and the U.S. Chamber of Commerce. The case involves a Colorado think tank that ran an ad to support a sentencing reform bill, and triggered the FEC’s requirement even though the ad did not identify or advocate the election or defeat of a federal candidate, the Center for Competitive Politics said.
By Jeff Brindle
On November 4, 2016, the United Stated District Court for the District of Columbia struck another blow on behalf of disclosure.
In Independence Institute v. FEC, the Court rejected the organization’s claim that disclosure requirements under the Bipartisan Campaign Reform Act (BCRA) should not apply to its planned advertising campaign.
The Institute, a 501(c)(3) charitable organization, planned to run radio advertisements urging Colorado Citizens to contact two federal lawmakers to support a particular piece of legislation.
Arguing that the ads are issue ads, the Institute maintained that they should be exempt from BCRA’s electioneering communication disclosure provisions…
Recently, Assembly Minority Leader John Bramnick and Democratic Assemblyman Troy Singleton each introduced bills that would require registration and disclosure by independent groups such as Super PACs and 501(c) groups.
The recent ruling in Independence Institute v. FEC, which again strongly endorses disclosure, will hopefully embolden the Legislature to pass this legislation and enhance transparency in the State’s electoral process.
By Bob Bauer
The Independence Institute case, a challenge to the regulation of issues speech, has attracted a sizeable roster of amici in support of Supreme Court review. So far the line-up is largely conservative and libertarian, and yet, notably, the arguments are ones that in the Age of Polarization might also -and should- find an audience among progressives. The issue is the constitutional protection available for anonymous issues speech that a speaker, or an association of speakers, may engage in to limit the risk of reprisal or harassment…
Independence Institute is about the protection of issues speech when it is expressed in a campaign season, months out from Election Day, without any reference to candidates or elections, and unquestionably involving public policy issues. As collection of prominent political scientists and constitutional law professors have written in an amicus brief, the courts have left the constitutional question in a state of uncertainty when “the sad fact in today’s world is that people whose viewpoints are displeasing to the modern mob (namely, the bullying power of social media), or to bureaucracies with discretionary power over their lives or businesses, suffer a grave risk if they communicate those unpopular views without the protective cloak of anonymity.”