[00:00:02] Speaker 00:
case number 14-6249, Independence Institute, a Colorado non-profit corporation appellate versus federal election commission.

[00:00:10] Speaker 00:
Mr. Dickerson for the appellate, Mr. Mueller for the appellate.

[00:00:54] Speaker 01:
Good morning.

[00:00:55] Speaker 01:
Good morning, Your Honors.

[00:00:57] Speaker 01:
May it please the Court, my name is Alan Dickerson.

[00:00:59] Speaker 01:
I appear today on behalf of the Independence Institute.

[00:01:02] Speaker 01:
I'm joined by my colleague, Tyler Martinez.

[00:01:05] Speaker 01:
When Congress amended the Federal Election Campaign Act of 2002, it recognized the possibility that the courts would consider portions of that law unconstitutional.

[00:01:15] Speaker 01:
Consequently, it took steps to ensure the swift and orderly consideration of those cases.

[00:01:20] Speaker 01:
In particular, it stated that cases must be brought in the district court for this circuit, and that they must be heard by a three-judge court with review only by the U.S.

[00:01:29] Speaker 01:
Supreme Court.

[00:01:30] Speaker 01:
The statutory language is clear and unambiguous.

[00:01:33] Speaker 01:
But the courts have created a slight exception.

[00:01:36] Speaker 01:
Where a constitutional claim has been foreclosed by the Supreme Court, a single district judge may dismiss the case without first convening the three-judge court.

[00:01:44] Speaker 01:
Here, the FEC argues, and the district court agreed, that a small portion of the Citizens United decision forecloses the Institute's claims.

[00:01:51] Speaker 01:
This is incorrect for two reasons.

[00:01:53] Speaker 02:
First, why do you call it a small portion of the Citizens United?

[00:01:57] Speaker 02:
Well, disclosure, it's a big deal, right?

[00:02:00] Speaker 02:
Well, Citizens United taking up the disclosure issue.

[00:02:04] Speaker 01:
It's not a small portion that was... Well, I'd respectfully disagree in two senses.

[00:02:08] Speaker 01:
It's not what got all the headlines, but... Disclosure overall, and disclosure and disclaimer, which are two separate issues, you know, it's on the face of the ad, which is not an issue here, and the scope of the underlying donor disclosure is going on, or a small... I would argue a small portion of the case, but that's not what I mean when I say a small portion of Citizens United.

[00:02:26] Speaker 01:
What I mean is that the Citizens United plaintiff asked for any ad that was not the functional equivalent of express advocacy to be excluded.

[00:02:34] Speaker 01:
And it's true that Justice Kennedy spends time discussing why that standard does not apply.

[00:02:38] Speaker 01:
But that's not what we're asking for.

[00:02:39] Speaker 01:
We're saying that there's still a remnant of the Buckley decision that says the cases that simply have no connection to an election are excluded from registration and reporting requirements.

[00:02:49] Speaker 01:
That portion, that argument is addressed, if at all, only in one paragraph of the Citizens United opinion, where there's no authority whatsoever, and where Justice Kennedy appears to say – well, does say the sentence sort of generally – that there's an informational interest in knowing who is speaking about a candidate before an election.

[00:03:06] Speaker 01:
In some senses, that sentence is the heart of this case.

[00:03:10] Speaker 01:
The question is whether that sentence, which again... Which sentence, again?

[00:03:13] Speaker 01:
That even if the advertisements, and I'm paraphrasing, but even if the advertisements that issue in Citizens United were merely commercial speech, that there's nonetheless an informational interest in knowing who is speaking about a candidate.

[00:03:26] Speaker 01:
Yeah, the public has an interest in knowing who is speaking about a candidate shortly before an election.

[00:03:30] Speaker 01:
Yes.

[00:03:31] Speaker 01:
So to dissect that, because I do agree that that's the center of what's at stake here, or at least on the first prong of our argument.

[00:03:40] Speaker 01:
First of all, I mean, to the extent that Justice Kennedy is announcing a new standard of the informational interest from the one that was announced in Buckley, which is the constituencies of candidates knowing who stands behind an elected official,

[00:03:51] Speaker 01:
It's strange that he was so drastically narrow the Buckley decision without any citation to it or any reference whatsoever to the fact he was doing so.

[00:04:00] Speaker 01:
The Seventh Circuit, for this reason among others, considered this passage dicta in the Barland decision.

[00:04:06] Speaker 01:
First of all, that.

[00:04:07] Speaker 01:
Second of all, even if it is true that the court has announced a new informational interest, which I think is the most generous interpretation that can be given to the FEC, that section says nothing about tailoring, which is part of an exacting scrutiny analysis.

[00:04:20] Speaker 01:
Even if there is now a generalized interest in who's speaking shortly before an election, under exacting scrutiny, the state must still show some connection between the disclosures requesting and that new interest.

[00:04:31] Speaker 01:
And I think if you were to diagram that sentence, who is speaking shortly before an election?

[00:04:35] Speaker 01:
Well, everyone knows who's speaking shortly before an election.

[00:04:38] Speaker 01:
It's the Independence Institute.

[00:04:39] Speaker 01:
that's stated on the face of the ad.

[00:04:41] Speaker 01:
These sort of considerations haven't been considered by the court because the court was asked to apply a functional equivalent of express advocacy standard and not an unambiguously campaign related standard.

[00:04:50] Speaker 01:
That standard hasn't been applied since Buckley and therefore can't be proposed.

[00:04:52] Speaker 01:
And the difference between those two standards is?

[00:04:55] Speaker 01:
The difference between the two standards is whether or not something says the equivalent of vote for this person or vote against this person or instead is more like our speech where there's simply no connection whatsoever to an election.

[00:05:06] Speaker 01:
This goes back to the McConnell decision.

[00:05:09] Speaker 01:
What's the difference between the two standards?

[00:05:11] Speaker 01:
The difference between the two standards is, and I think in some ways this is a sign of how the insular campaign finance law has become, is the vast gulf between

[00:05:19] Speaker 01:
a communication that can only be understood as asking someone to vote for or against a candidate.

[00:05:24] Speaker 01:
Okay, that's functional.

[00:05:26] Speaker 01:
That's the functional equivalent of expressed advocacy.

[00:05:27] Speaker 01:
And what's unambiguously campaign related?

[00:05:29] Speaker 01:
Unambiguously campaign related would be something which is related to the campaign.

[00:05:34] Speaker 01:
So take the asset issue in Hillary, or the ads for the Hillary movement in Citizens United.

[00:05:38] Speaker 01:
You know, each of those ads was related only to the fact that Hillary Clinton was running for president.

[00:05:43] Speaker 01:
They're related to the campaign, if not to which side you should vote for.

[00:05:47] Speaker 01:
They were a speech about the fact this woman was running for president.

[00:05:50] Speaker 01:
That's different from an incidental mention of an office holder in the context of a very different communication, a communication about pending legislation in the Senate.

[00:05:58] Speaker 01:
That's our argument, that genuine issue speech and political speech have been different ever since Buckley, and that one sentence by Justice Kennedy can't change that fact without saying so, and that even if he did change the fact as regards to the underlying standard, that nonetheless does not change the fact that the government was demonstrate tailoring, and it has never done so under that separate, that second standard, the unenviable campaign-related standard.

[00:06:22] Speaker 01:
The second point I'd make is that the court has never reviewed a policy, which is the current policy.

[00:06:30] Speaker 04:
I thought unambiguously campaign-related was something akin to functional equivalent of express advocacy.

[00:06:40] Speaker 01:
And it may be, Your Honor.

[00:06:41] Speaker 04:
And if it is, then by rejecting this in Citizens United, the court, it wasn't just Justice Kennedy, the court rejected

[00:06:53] Speaker 04:
your argument here.

[00:06:56] Speaker 04:
I realize you might dispute the premise, but if you accept the premise that the two things are essentially the same, then Citizens United resolve it.

[00:07:05] Speaker 04:
And you can, of course, ask the Supreme Court to refine that precedent, but I'm not sure that the district court here or we can.

[00:07:17] Speaker 01:
And I take the point.

[00:07:19] Speaker 01:
I think the response is that we're sitting here on a jurisdictional statute for interpretation question.

[00:07:25] Speaker 01:
This isn't a merits hearing.

[00:07:27] Speaker 01:
And the fact that that might be a correct merits determination, correct merits analysis.

[00:07:32] Speaker 01:
But the gloss on the jurisdictional statute is foreclosed by precedent.

[00:07:37] Speaker 01:
Well, not just foreclosed by precedent, so foreclosed that there can be no honest disciplines of opinion.

[00:07:43] Speaker 01:
And I would suggest that going back and reading Buckley, this idea that disclosure intrudes on civil society's ability to discuss issues, and that that's the entire reason for these various standards, it would be strange if the Supreme Court had walked that back without explanation.

[00:07:59] Speaker 01:
And that's honestly the position the FEC is taking.

[00:08:02] Speaker 04:
Don't you think the Supreme Court here was considering issue ads and disclosure of donors behind issue ads?

[00:08:12] Speaker 04:
That seems to be what they were.

[00:08:15] Speaker 04:
It was the whole case in some respects, right?

[00:08:17] Speaker 04:
Citizens United?

[00:08:18] Speaker 04:
I mean, not the whole case, but that was one of the big issues that was in it.

[00:08:23] Speaker 01:
I don't dispute that the issue is before the court.

[00:08:25] Speaker 01:
The difference is that the standard we're asking for is a different standard than the one Citizens United asked for.

[00:08:31] Speaker 01:
So in that sense, almost by definition, it was dicta.

[00:08:35] Speaker 01:
And that was the position of the Seventh Circuit.

[00:08:36] Speaker 01:
The Seventh Circuit said, this is dicta because you'd already decided these were the functional equivalent of express advocacy.

[00:08:42] Speaker 01:
And if the Seventh Circuit thinks that, I think that there is a good faith disagreement on whether this question has been fully foreclosed by the Supreme Court.

[00:08:49] Speaker 01:
And if that's the standard, then absolutely we should have this discussion, but we should have it in front of the Three Judge District Court as Congress required.

[00:08:55] Speaker 04:
You don't dispute, though, that the gloss that the courts have put on the statute, we have to take that as a given, because the Supreme Court itself has in similar three-judge district court statutes.

[00:09:07] Speaker 04:
The gloss.

[00:09:08] Speaker 04:
To a point.

[00:09:10] Speaker 04:
Because actually, if you look at the statutory language, at least I wouldn't have put the gloss on there.

[00:09:16] Speaker 04:
I would have just said you automatically referred to a three-judge district court.

[00:09:19] Speaker 04:
But that seems long since established, that there is a gloss on those statutes.

[00:09:24] Speaker 01:
I think that's true, but I think there's a disagreement on what that gloss is.

[00:09:27] Speaker 01:
Our position is, again, that there can't be a good-faith disagreement about whether the issues foreclose.

[00:09:32] Speaker 01:
The FEC has cited authority from the 70s coming out of a statute that was repealed in 1976 saying that there's this policy of judicial, of keeping cases out of the Supreme Court's required appellate jurisdiction.

[00:09:43] Speaker 01:
I mean, that was a statute that required all requests for injunctive relief on constitutional grounds against state and federal statutes to be heard by a three-judge court.

[00:09:52] Speaker 04:
It created... It was 2281.

[00:09:54] Speaker 04:
It referred to 2284.

[00:09:55] Speaker 04:
This statute refers to 2284.

[00:09:59] Speaker 04:
Put it all in the stew together, and it seems like those same considerations would apply to this statute.

[00:10:05] Speaker 04:
You can challenge me on that, but that's... I would suggest otherwise.

[00:10:07] Speaker 01:
And that's... I think the district court for our disagreements with this decision did correctly state the standard.

[00:10:13] Speaker 01:
And that this sort of... this policy of trying to keep these cases out of the Supreme Court is not supported by anything the Supreme Court has said on this statute, on this required reveal.

[00:10:23] Speaker 02:
So let me get you right.

[00:10:24] Speaker 02:
You're saying there's a substantial issue here that should have gone to the three-judge district court because

[00:10:31] Speaker 02:
the phrase unambiguously campaign-related is not the same as express advocacy.

[00:10:38] Speaker 01:
Correct.

[00:10:38] Speaker 01:
And also because, in light of the Van Hollen decision, there's now greater donor disclosure for speech that merely mentions a candidate for office, as our ad does, than for speech that actually says vote for or vote against, which is irrational and suggests that it might fail exacting scrutiny.

[00:10:54] Speaker 01:
And the court has never considered that question.

[00:10:57] Speaker 01:
I see my time has expired.

[00:10:59] Speaker 01:
Thank you.

[00:11:08] Speaker 02:
Good morning.

[00:11:09] Speaker 05:
Good morning.

[00:11:10] Speaker 05:
They please the court, Greg Mueller, for the Appalooe Federal Election Commission.

[00:11:14] Speaker 05:
With me today are Kevin Dealey and Aaron Klopak.

[00:11:17] Speaker 05:
The district court's decision should be affirmed in its entirety.

[00:11:21] Speaker 05:
An eight-justice majority of the Supreme Court in two cases has upheld the electioneering communication disclosure provision addressing the issues presented here.

[00:11:31] Speaker 02:
I mean, you'll acknowledge, won't you, that the ad here is different than the ad in Citizens United, right?

[00:11:39] Speaker 02:
There's something qualitatively different about this ad.

[00:11:42] Speaker 05:
I don't think there's anything qualitatively different about the ad.

[00:11:45] Speaker 02:
In your argument, it may fit in the same box for electioneering communications, but I'm just saying there is something different about it, right?

[00:11:53] Speaker 05:
Not with respect to what the analysis of the Supreme Court in the Citizens United case, it focused on the broad criteria of what an electioneering communication is, meaning run in the right time frame, directed at the relevant broadcast market.

[00:12:10] Speaker 02:
This ad had not mentioned Senator Udall and just said, call your Colorado senators.

[00:12:15] Speaker 02:
Would that be a distinction that makes a difference here?

[00:12:20] Speaker 05:
The court's focus, I think if it didn't fall within the scope of the electionary communication provision, it wouldn't be here.

[00:12:30] Speaker 02:
Would that keep it outside the scope if you just say call your elected representatives instead of saying call Senator Udall?

[00:12:36] Speaker 05:
It has to identify a candidate.

[00:12:38] Speaker 05:
And it did in this instance, and the court's focus was

[00:12:46] Speaker 05:
Because the interest that the court found was a public interest, an important public interest, in identifying the source or the funders of electioneering communications to provide the voters with information during that time period.

[00:13:01] Speaker 02:
What's your answer to your opponent's argument that there's a significant difference between unambiguously campaign-related and express advocacy?

[00:13:10] Speaker 05:
Well, there isn't a difference that matters here.

[00:13:13] Speaker 05:
And let me explain why.

[00:13:15] Speaker 05:
He places great weight on Buckley v. Vallejo as a decision.

[00:13:20] Speaker 05:
Our position is that Citizens United squarely addresses the circumstances here.

[00:13:25] Speaker 05:
And importing those standards, that discussion from Buckley v. Vallejo doesn't make any sense here, because what the court was doing there was construing an ambiguous statute and construing it in the face of over-breath.

[00:13:41] Speaker 05:
the court in Citizens United expressly rejected that approach and said, we don't need to do that here because we have a statute that isn't overbroad.

[00:13:49] Speaker 05:
It's quite tailored in a lot of respects.

[00:13:52] Speaker 05:
And so the court didn't head down that Buckley path, and quite intentionally so.

[00:13:59] Speaker 05:
So we're in a really different spot here then, and the reliance on Buckley is in its place.

[00:14:06] Speaker 04:
But do you think there's a difference between those two standards?

[00:14:09] Speaker 05:
Unambiguously?

[00:14:11] Speaker 05:
No.

[00:14:11] Speaker 05:
And in fact, the unambiguously campaign-related was a later description that, when read in context, is referring to the earlier description of the functional equivalent of express advocacy.

[00:14:27] Speaker 05:
So it doesn't make sense to enshrine that as some term of art unto itself.

[00:14:37] Speaker 04:
Your point is that it's the same as functional equivalent of express advocacy, or at least very similar.

[00:14:43] Speaker 04:
Therefore, when Citizens United rejects functional equivalent of express advocacy as a limit on the disclosure requirements, it's necessarily rejecting unambiguously campaign related as well.

[00:14:54] Speaker 05:
Exactly, Your Honor.

[00:14:55] Speaker 05:
And the Supreme Court was very explicit in that.

[00:14:58] Speaker 05:
There was nothing implicit about it.

[00:14:59] Speaker 05:
It said so in so many words.

[00:15:01] Speaker 02:
Explicit in what?

[00:15:03] Speaker 05:
It said we declined to adopt that standard here.

[00:15:07] Speaker 05:
in Citizens United, and instead balanced the important governmental interest in providing information about the funders of pre-election broadcast ads against the burden.

[00:15:18] Speaker 05:
And it noted how tailored the statute was.

[00:15:21] Speaker 05:
For example, the scope of the statute, the scope of disclosure, is limited in a number of respects that limited the burden significantly.

[00:15:30] Speaker 05:
And that was part of the court's description.

[00:15:34] Speaker 05:
Mr. Dickerson referenced the Barland decision and suggested that the Citizens United discussion was dicta, but actually the Barland case did not say that the Citizens United portion was dicta.

[00:15:50] Speaker 05:
And it explicitly embraced the Citizens United standard with respect to federal electioneering communications.

[00:16:00] Speaker 05:
It was talking about a Wisconsin state law statute that was more like the statute that was analyzed in Buckley v. Vallejo and decided that the $300 threshold and the ongoing reporting obligations were too great.

[00:16:16] Speaker 05:
I think Barland has no real application here, and to the extent that it has any application, that circuit, as many others that we listed in our briefs, have embraced the distinction that the Supreme Court made in Citizens United.

[00:16:31] Speaker 04:
It did call a dick to this passage, as I read the Seventh Circuit decision.

[00:16:37] Speaker 05:
Later in the opinion, it talked about the holding with respect to the federal electioneering communications decisions, and it wasn't talking about it as dicta there and embraced it as a standard.

[00:16:53] Speaker 05:
when read in its entirety, the Seventh Circuit wasn't taking on or backing away from what the court could do.

[00:16:59] Speaker 04:
And your point in any event is, well, they interpreted Citizens United the same way.

[00:17:03] Speaker 04:
They might have called it DICTA, and you disagree with that.

[00:17:05] Speaker 04:
But the bottom line is they interpreted the Citizens United the same way.

[00:17:10] Speaker 05:
It was.

[00:17:10] Speaker 05:
And there are a number of other circuits have embraced that holding, including the Third Circuit and Delaware Strong Families we submitted as part of the 28-J letter in this case.

[00:17:23] Speaker 02:
So under the standard you're arguing for, tell me a case in which there's an as-applied challenge to an ad that gets to a three-judge district court.

[00:17:34] Speaker 02:
Do any of them?

[00:17:36] Speaker 02:
Or is the law just

[00:17:37] Speaker 05:
No, and the court laid out those as-applied challenges in providing an exemption.

[00:17:42] Speaker 05:
It had concern about the burden of disclosure and laid out specifically the types of as-applied challenges that could be brought.

[00:17:49] Speaker 05:
And it specifically laid out where donors face a, and it's not the highest of standards, a reasonable probability of threats, harassment, or reprisals as a result of the disclosure.

[00:18:02] Speaker 02:
Anything else besides that?

[00:18:04] Speaker 05:
No, your honor.

[00:18:05] Speaker 02:
So those are the only ones that are going to get to three judge district court.

[00:18:08] Speaker 05:
Well, on this topic, yeah.

[00:18:14] Speaker 05:
We have the ad that this is an as applied challenge with respect to this case.

[00:18:17] Speaker 05:
And so with respect to this ad, so it's clearly not appropriate here.

[00:18:22] Speaker 05:
I can't really speak to, there may well be other as applied challenges.

[00:18:28] Speaker 05:
Plaintiffs can be creative.

[00:18:29] Speaker 04:
I think I know your answer, but I just want to make sure if someone's arguing that a Supreme Court decision should be overruled, can you get a three-judge district court?

[00:18:39] Speaker 05:
If it's, no your honor, if it's foreclosed by precedent, the three-judge district court statute was designed to have new provisions quickly reviewed or novel questions after the Supreme Court has weighed in and addressed it.

[00:18:54] Speaker 05:
And what's particularly important about this case.

[00:18:57] Speaker 04:
And then let's suppose there is true dicta, and we can, true dicta in a Supreme Court opinion that would foreclose the position, but it is,

[00:19:06] Speaker 04:
just accept that it's dicta, would you get a free judge district court to argue that the lower court should not follow that dicta or that dicta is incorrect?

[00:19:17] Speaker 05:
Well, first, I mean, it's important to note that I don't believe it is dictature by accepting your premise.

[00:19:24] Speaker 05:
I think there's authority that says that even dicta of the Supreme Court is entitled to great weight.

[00:19:30] Speaker 05:
If it's not foreclosed by Supreme Court precedent, then under Feinberg, the Feinberg case that is the law of this circuit, I think

[00:19:39] Speaker 04:
to say it's dicta is to say it's not foreclosed by precedent, at least that's one interpretation of dicta.

[00:19:46] Speaker 04:
So that would suggest it would get to a three-judge court if it were truly dicta.

[00:19:50] Speaker 05:
I believe that's right, Your Honor.

[00:19:55] Speaker 05:
Okay.

[00:19:58] Speaker 05:
One of the things that's very important to note about Citizens United is it's not just that the holding encompasses the case.

[00:20:06] Speaker 05:
It's that they brought the very same arguments, and the very same arguments were rejected by the Supreme Court.

[00:20:12] Speaker 05:
So in this case, there's a particularly strong argument that the case is foreclosed because it's the same arguments that were recently rejected

[00:20:22] Speaker 02:
But arguments are based on facts, right?

[00:20:26] Speaker 02:
And I keep coming back to this.

[00:20:28] Speaker 02:
There's something that feels very different about this ad than the ad in Citizens United.

[00:20:34] Speaker 02:
Now, I know your argument is that it fits within the box of what we call electioneering communications.

[00:20:41] Speaker 02:
But nevertheless, it feels different than what they were dealing with.

[00:20:46] Speaker 05:
I understand your group.

[00:20:49] Speaker 05:
Every new advertisement doesn't give you a right to a three-judge district court and direct appeal to the Supreme Court.

[00:20:58] Speaker 05:
I think it's the relevant factors within the ad that make it important.

[00:21:04] Speaker 05:
relevant to the electioneering disclosure, electioneering communication context?

[00:21:10] Speaker 02:
I mean, the purpose of the ads in Citizens United was to persuade people to oppose Senator Clinton's campaign, right?

[00:21:23] Speaker 02:
There's no such purpose involved in – you couldn't tell from this ad whether someone was encouraging a voter to vote for or against Senator Udall.

[00:21:32] Speaker 05:
And that's exactly right.

[00:21:34] Speaker 05:
There isn't a requirement for the court to delve into the subjective purpose or intent of the ad.

[00:21:42] Speaker 05:
It is a objective right-line box that has been set up.

[00:21:47] Speaker 02:
A Procrastine bid, right?

[00:21:50] Speaker 02:
upon which the First Amendment is sometimes placed.

[00:21:53] Speaker 05:
But also the holding of the court addresses that.

[00:21:55] Speaker 05:
It says that the important governmental interest is in the electorate voters knowing who's talking about candidates before the election.

[00:22:04] Speaker 05:
And there's a very close fit to that interest by the statute.

[00:22:07] Speaker 05:
And so we don't have to delve into the intent.

[00:22:12] Speaker 02:
But why are we interested in when people are talking about candidates?

[00:22:17] Speaker 02:
What does that mean?

[00:22:19] Speaker 02:
Talking about candidates triggers this governmental interest, right?

[00:22:22] Speaker 02:
Well, it's in broadcast ads and... But what's the governmental interest that it triggers?

[00:22:29] Speaker 02:
They said that the court was... It's outcome of elections, right?

[00:22:32] Speaker 02:
It's outcome of elections.

[00:22:34] Speaker 02:
And was there anything about this ad that was going to affect the outcome of the election?

[00:22:37] Speaker 05:
They said it was very important for the public to be able to evaluate the information that they were receiving to understand who the funders... It had nothing to do with the election.

[00:22:46] Speaker 05:
Well, I think that regardless of that call Senator, you know, call Senator Bennett, but you kind of need to know who the funders are to make that decision, whether it has anything to do with the election or not.

[00:22:58] Speaker 04:
If the legislation were being considered a couple months earlier, the same ad, you would not have had to disclose the donors.

[00:23:09] Speaker 05:
And the court has reviewed those concerns both.

[00:23:12] Speaker 04:
So to the extent, the flaw in the box arguably set up here assumes legislation ends at one point, and then the election season kicks off.

[00:23:25] Speaker 04:
But as we all know, legislation still is being voted on right up until election.

[00:23:30] Speaker 04:
So to the extent your real concern as an anonymous donor is about legislation,

[00:23:36] Speaker 04:
you're being chilled from expressing your views about that legislation because of the overlap of the election, which you may not care about.

[00:23:43] Speaker 05:
And the court did consider that in CU and McConnell and gave greater weight to the public interest in disclosing the funders.

[00:23:52] Speaker 03:
But even an ad like this communicates, I guess, at least three things.

[00:23:56] Speaker 03:
One, this bill is good policy.

[00:23:58] Speaker 03:
Two, you listeners should agree that this bill is good policy.

[00:24:04] Speaker 03:
And three, Senators Bennett and Udall don't currently support this bill.

[00:24:11] Speaker 03:
And so when you convey those three points of information, you're telling people during the election season that this person who's standing for reelection doesn't currently support something that we think is good policy and that you should think is good policy.

[00:24:29] Speaker 03:
Couldn't that be important to a potential vote?

[00:24:33] Speaker 05:
I believe so, Your Honor, but the statute was – embraced it more broadly so that we don't have to step into analysis like that with respect to every ad.

[00:24:45] Speaker 05:
It presumes the importance of the discussion in the period before the election.

[00:24:53] Speaker 02:
Would you address the midness issue?

[00:24:54] Speaker 02:
You haven't said anything about it.

[00:24:57] Speaker 02:
Do you still think it's moot, in light of the press release?

[00:25:01] Speaker 05:
We don't dispute that they likely fall within the capable of repetition, yet is making reduced standards.

[00:25:11] Speaker 05:
Thank you, Your Honor.

[00:25:12] Speaker 02:
Thank you very much.

[00:25:23] Speaker 01:
Citizens United was an as-applied case.

[00:25:26] Speaker 01:
And by force of that fact, the discussion the court had about over-breath of the statute with regard to some ads, which I think there's been some agreement here, are decisively different from the ad here, suggests that the case cannot foreclose

[00:25:45] Speaker 01:
a case that brings forth precisely the sort of genuine issue speech that motivated the entire Buckley decision.

[00:25:53] Speaker 01:
The reason the Buckley court considered Feek Over Broad was because it reached speech exactly like this.

[00:25:59] Speaker 01:
was precisely because it would make it impossible to discuss issues of public policy shortly before an election.

[00:26:04] Speaker 01:
That's also why this court invalidated the portion of FECA that would have required political community registration if you discussed a candidate in the context of their official duties.

[00:26:15] Speaker 01:
That was declared invalid by this court on Bonk in 1975.

[00:26:18] Speaker 01:
So that's the first point.

[00:26:21] Speaker 01:
The second is,

[00:26:26] Speaker 01:
The fit between the statute and the disclosure interest has been completely changed since Citizens United.

[00:26:34] Speaker 01:
As a result of the Van Hollen decision sitting here right now, the law is that if we run our ad, which doesn't ask you to vote for anyone and has nothing to do with the election, we have to disclose all donors to the organization.

[00:26:45] Speaker 01:
But if we were to run an ad, which we can't because we're a 501c3 and we're barred by federal tax law from doing so, but if we were to run an ad that said, vote against this senator, we would only have to get earmarked contributors to the public.

[00:26:57] Speaker 01:
That makes no sense.

[00:26:59] Speaker 01:
That is not a tailored statute, and that isn't an argument the Supreme Court has ever considered.

[00:27:04] Speaker 01:
That alone is enough to say, no, that the tailoring between this particular disclosure and this particular ad

[00:27:12] Speaker 01:
The as in Citizens United aren't similar enough, and the disclosure at issue in Citizens United aren't similar enough.

[00:27:17] Speaker 01:
And that's enough to suggest that there's an open question here that should go to a three-judge court.

[00:27:21] Speaker 01:
And finally, on the question of the as applied issue, the FEC has authority to give exceptions from disclosure for people who are subject to threats, harassment, or reprisal.

[00:27:29] Speaker 01:
It has done so once for the Socialist Workers Party because the Supreme Court ordered it to do so.

[00:27:34] Speaker 01:
That is the only as applied exception that's been granted in the history of the act.

[00:27:38] Speaker 01:
And so I would suggest that

[00:27:39] Speaker 01:
suggesting that that is the remedy available to the public is a little bit illusory.

[00:27:44] Speaker 01:
Thank you very much.

[00:27:46] Speaker 02:
Thank you very much.

[00:27:46] Speaker 02:
The case is submitted.