Independence Institute v. Federal Election Commission

Michael Harless Constitutional Law, Election Law, U. S. Supreme Court

Today we filed an amicus brief urging the U.S. Supreme Court to review an appeal filed by the Independent Institute challenging the disclosure requirements imposed by the Bipartisan Campaign Reform Act (“BCRA”) as applied to genuine issue ads.  BCRA compels the disclosure of donors to such ads over $1,000, with substantial civil and criminal penalties for failure to report this information publicly.

We argue that the three-judge court below misapplied its line of federal campaign finance cases to this case which involved issue ads.  We explain that Congress devised the term “electioneering communications” to give the appearance that these issue ads are campaign ads, even though they only mention the name of an incumbent Congressman.  We argue that the Supreme Court should apply the McIntyre v. Ohio (1995), Miami Herald v. Tornillo (1974), and Talley v. California (1960) line of authorities, which protect the anonymity of those sponsoring such advertisements.  Lastly, we explain that the Congressional motive in imposing such regulations is suspect, designed to discourage public criticism, and enhance the reelection prospects of the incumbents who passed it.

This is the third brief we have filed in support of this challenge by the Independent Institute.

Link to brief