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Independence Inst. v. FEC

United States Court of Appeals, District of Columbia Circuit

March 1, 2016

INDEPENDENCE INSTITUTE, A COLORADO NONPROFIT CORPORATION, APPELLANT
v.
FEDERAL ELECTION COMMISSION, APPELLEE

Argued October 22, 2015

Appeal from the United States District Court for the District of Columbia. (No. 1:14-cv-01500).

Allen Dickerson argued the cause for appellant. With him on the brief was Tyler Martinez.

Herbert W. Titus, William J. Olson, John S. Miles, Jeremiah L. Morgan, and Robert J. Olson were on the brief for amici curiae Citizens United, et al. in support of appellant.

Greg J. Mueller, Attorney, Federal Election Commission, argued the cause for appellee. With him on the brief were Lisa J. Stevenson, Deputy General Counsel, Kevin Deeley, Acting Associate General Counsel, and Erin Chlopak, Acting Assistant General Counsel. Michael Columbo, Attorney, entered an appearance.

J. Gerald Hebert, Lawrence M. Noble, Scott L. Nelson, Fred Wertheimer, Donald J. Simon, and Charles Fried were on the brief for amici curiae Campaign Legal Center, et al. in support of defendant-appellee.

Before: GRIFFITH, KAVANAUGH, and WILKINS, Circuit Judges.

OPINION

Page 114

Kavanaugh, Circuit Judge.

The Bipartisan Campaign Reform Act of 2002, known as BCRA or the McCain-Feingold Act, requires speakers who make " electioneering communications" to disclose some of their donors. An electioneering communication is a broadcast, cable, or satellite communication that refers to a candidate for federal office and is aired within 60 days of a general election. See 52 U.S.C. § 30104(f).

Independence Institute is a Section 501(c)(3) nonprofit organization located in Colorado. In 2014, the Institute supported a proposed federal statute that would reform federal sentencing. Independence Institute wanted to run a radio advertisement in favor of the proposed law. The advertisement would encourage citizens to express their support of the law to Colorado's U.S. Senators, Mark Udall and Michael Bennet.

The Institute intended to air the advertisement in the fall of 2014. At that time, however, Senator Udall was running for re-election. The radio spot would therefore

Page 115

qualify as an electioneering communication within the meaning of BCRA. As a result, Independence Institute would have to disclose some of its donors.

Independence Institute says that 501(c)(3) nonprofit organizations possess a First Amendment right to air issue advertisements without disclosing their donors. Independence Institute therefore sued the FEC, arguing that BCRA's disclosure ...


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