The case brought by the Independence Institute against the “electioneering communication” disclosure requirement enacted by McCain-Feingold could prove to be highly significant.  This is an as-applied challenge; it contests the mandatory reporting of a “pure” issue ad if, within specified days prior to an election, it refers to a public official who is also a candidate for federal office. Some believe that this claim was foreclosed by McConnell v. FEC and Citizens United.  Independence Institute disagrees, arguing that the Court has never held that issue speech loses constitutional protection against disclosure, including donor disclosure, just because it airs during an election season.

What may stand in the way are summary comments the Court has made, most notably in Citizens United, where the Justices suggested that it did not matter to the application of the electioneering communication requirement whether a communication contained the “functional equivalent of express advocacy.”  558 U.S. 310, 369.  One reading is that the Court had no patience with disclosure objections, end of story. Even a “pure” issue ad—even such an ad run with no apparent electioneering interest or motive –is subject to disclosure if it includes a reference to a public official who was a candidate.

Perhaps this is what the Court intended to say, but this interpretation puts considerable weight on general statements and very little or none at all on the line of authority established by Buckley that campaign finance law could not override the distinction in the constitutional law between campaign and issues speech.

For this reason, the Independence Institute insists that any standard of doctrinal coherence requires that the reporting requirements turn on an “unambiguous” relationship of the speech to a political campaign.  An organization with a major purpose of influencing election would meet that requirement, as would advertisements that contained express advocacy or its functional equivalence.  But assume an ad run by organization without such purpose—in the Independence Institute case, a 501(3) barred by tax law from electioneering—or ad content lacking either express advocacy or its functional equivalence.  Would such an ad be subject to disclosure invariably, in all cases, only because of the timing of its broadcast?  It is not clear that the Court in Citizens United meant any such thing.

To date, the Court has left room for doubt on this point because it has not dealt at length or in any depth with disclosure doctrine, and it has not been confronted with well argued as-applied challenges that force its engagement with the harder questions that a suit like Independence Institute raises.  It may sidestep this engagement, or it may not, but whatever the view taken of how the Court should eventually rule, it would be a mistake to assume we know how it will.

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