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.
By Justin Cosgrove
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.
Talking Points Memo: Supreme Court Affirms Rule That Some Political Ads Require Disclosing Donors (In the News)
By Matt Shuham
The Supreme Court affirmed Monday that organizations engaged in certain political communications before an election, even advertisements that do not directly endorse a candidate for office, must disclose their donors to the Federal Election Commission.
A lower court’s judgment in Independence Institute v. Federal Election Commission was affirmed by the Supreme Court Monday. The ruling affirmed the constitutionality of disclosure requirements in the McCain-Feingold Act, which specify that any groups that spend more than $10,000 on “electioneering communications” in the 60 days before a general election (or 30 days before a primary election) must disclose their donors.
“Electioneering communications,” include radio and television ads that mention the name of a candidate for federal office, even those that do not make any explicit endorsement.
In this case, Independence Institute wanted to run a radio ad in 2014 urging listeners in its home state of Colorado to “call Senators Michael Bennet and Mark” and ask them support a bill allowing federal judges more discretion in the sentencing of non-violent offenders.
By Kate Howard
In its conference of February 24, 2017, the court will consider petitions involving issues such as . . . 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…
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 Brad Smith
The year is 2019. The government sends in a SWAT team to seize any corporate property it wants without the due process or just compensation required by the Fifth Amendment to the Constitution. The government also has the power to swipe bank assets, raid newspaper offices without warrants or just cause, and even censor any news published by a media corporation.
No, it’s not the plot of a newly-unearthed Orwell novel. These tactics, and more, would be legal under an amendment to the U.S. Constitution cosponsored by Sen. Sheldon Whitehouse, D-R.I.
Whitehouse’s proposal, introduced this year by Montana Democrat Jon Tester, is a constitutional amendment that aims to strip rights from corporate entities…
Oddly enough, in the momentous Citizens United decision, not even the court’s dissenters ever mentioned the issue of “corporate personhood.” Why? Because they all understood that corporate personhood is a longstanding doctrine that is not controversial in law, and was not what the case was about…
Constitutional amendments such as that offered by Whitehouse will not pass in the next few years – but they indicate the general hostility to free speech that many senators have, and their willingness to silence speakers they don’t like.