Independence Inst. v. Fed. Election Comm'n

• Citation: 816 F.3d 113
• Decision Date: 01 March 2016
• Docket Number: No. 14–5249.,14–5249.
• Parties: INDEPENDENCE INSTITUTE, a Colorado Nonprofit Corporation, Appellant v. FEDERAL ELECTION COMMISSION, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

816 F.3d 113

INDEPENDENCE INSTITUTE, a Colorado Nonprofit Corporation, Appellant

v.FEDERAL ELECTION COMMISSION, Appellee.

No. 14–5249.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 22, 2015.

Decided March 1, 2016.

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 for the Court filed by Circuit Judge KAVANAUGH

, with whom Circuit Judge GRIFFITH joins.

Dissenting opinion filed by Circuit Judge WILKINS

.

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 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 requirement was unconstitutional as applied to this situation.

The Institute asked the District Court to convene a three-judge district court pursuant to the statutory provision that requires three-judge district courts for constitutional challenges to BCRA. See 52 U.S.C. § 30110

note. But the District Court denied the Institute's request for a three-judge district court. On the merits, the District Court held that Independence Institute's claim was unavailing under McConnell v. FEC, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) and Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), which respectively upheld BCRA's disclosure requirement against a facial challenge and against one particular as-applied challenge. See Independence Institute v. FEC, 70 F.Supp.3d 502, 506–15 (D.D.C.2014).

On appeal, Independence Institute argues that the District Court erred in denying the request for a three-judge district court. Our review of that question is de novo. See LaRouche v. Fowler, 152 F.3d 974, 981–86 (D.C.Cir.1998)

.

* * *

On its face, BCRA requires that a three-judge district court adjudicate Independence Institute's First Amendment claim. The Act states that a constitutional challenge to one of BCRA's provisions "shall be heard by a 3–judge court convened pursuant to section 2284 of title 28

." 52 U.S.C. § 30110 note. Section 2284 also says "shall": A three-judge district court "shall be convened when otherwise required by Act of Congress," such as BCRA. 28 U.S.C. § 2284.^*

To be sure, Section 2284

is not absolute. It requires a three-judge district court "unless" the single district court judge "determines that three judges are not required." Id. But in its recent decision in Shapiro v. McManus, the Supreme Court interpreted that language to mean that the single district court judge should determine only "whether the ‘request for three judges' is made in a case covered by § 2284(a) —no more, no less." ––– U.S. ––––, 136 S.Ct. 450, 455, 193 L.Ed.2d 279 (2015).

Because Independence Institute's complaint raises a First Amendment challenge to a provision of BCRA, Section 2284(a)

entitles it to a three-judge district court.

The only remaining barrier to Independence Institute's request for a three-judge district court is the general jurisdictional requirement that a suit must raise a substantial federal question. As the Supreme Court explained in Shapiro: "Absent a substantial federal question, even a single-judge district court lacks jurisdiction, and a three-judge court is not required where the district court itself lacks jurisdiction of the complaint or the complaint is not justiciable in the federal courts." Id. at 455

(internal quotation marks omitted).

But as the Shapiro Court stressed, the exception for insubstantial claims is narrow. It applies only when the case is "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit." Id. at 456 (quoting Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973)

) (internal quotation marks omitted). The Supreme Court has emphasized, moreover, that "the adverbs" are "no mere throwaways": The "limiting words ‘wholly’ and ‘obviously’ have cogent legal significance." Id. (quoting Goosby, 409 U.S. at 518, 93 S.Ct. 854 ) (internal quotation marks omitted).

The bar that a complaint must clear is "low." Id. at 456. "Constitutional claims will not lightly be found insubstantial for purposes of the three-judge-court statute." Id. at 455 (alterations and internal quotation marks omitted).

The FEC argues that Independence Institute's case fails to clear even that low bar because, according to the FEC, McConnell and Citizens United render Independence Institute's First Amendment claim "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit." Id. at 456; see McConnell v. FEC, 540 U.S. 93, 196–99, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003)

; Citizens United v. FEC, 558 U.S. 310, 366–69, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). We disagree.

BCRA requires speakers who make electioneering communications to disclose some of their donors. 52 U.S.C. § 30104

. In McConnell, the Supreme Court rejected a facial challenge to BCRA's disclosure requirement. See McConnell, 540 U.S. at 196–99, 124 S.Ct. 619. But the Court allowed future as-applied challenges. Id. at 199, 124 S.Ct. 619. In Citizens United, the Supreme Court rejected one such as-applied challenge, which attempted to limit BCRA's disclosure requirement to those electioneering communications that constitute express advocacy or the functional equivalent of express advocacy for a candidate. See Citizens United, 558 U.S. at 368–69, 130 S.Ct. 876.

In this case, Independence Institute says that it is raising a different as-applied challenge to BCRA, and it asserts that Citizens United therefore is not controlling here. Independence Institute seeks to distinguish Citizens United on the ground that Independence Institute is a 501(c)(3) charitable nonprofit organization, whereas Citizens United was a 501(c)(4) advocacy organization. According to Independence Institute, 501(c)(3) charitable groups serve different purposes and have greater interests in privacy than do 501(c)(4) advocacy groups. It argues, moreover, that the Government has less of an interest in publicly identifying the donors to 501(c)(3) groups. Independence Institute contends that the First Amendment therefore protects it against BCRA's disclosure requirement.

In Citizens United, the Supreme Court did not address whether a speaker's tax status or the nature of the nonprofit organization affects the constitutional analysis of BCRA's disclosure requirement. See 558 U.S. at 369, 130 S.Ct. 876

. And the FEC cites no precedent from the Supreme Court (or any other court) rejecting the argument advanced here by Independence Institute. The nature of our system of legal precedent is that later cases often distinguish prior cases based on sometimes slight differences. See, e.g., Arizona Christian School Tuition Org. v. Winn, 563 U.S. 125, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011) ; Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) ; see generally Richard M. Re, Narrowing Precedent in the Supreme Court, 114 COLUM. L.REV. 1861 (2014). Here, we cannot say that Independence Institute's attempt to advance its as-applied First Amendment challenge is "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit." Shapiro, 136 S.Ct. at 456. That is not to suggest that Independence Institute's argument is a winner. Independence Institute's 501(c)(3) argument may or may not prevail on the merits, but Section 2284"entitles" the Institute to make its case "before a three-judge district court." Id.

Independence Institute also contends that the First Amendment bars compelled disclosure of donors unless the electioneering communication is unambiguously campaign-related. The FEC responds that McConnell and Citizens United squarely rejected that argument. Cf. Republican National Committee v. FEC, 561 U.S. 1040, 130 S.Ct. 3544, 177 L.Ed.2d 1119 (2010)

, affirming Republican National Committee v. FEC, 698 F.Supp.2d 150, 156–58 (D.D.C.2010) (rejecting this distinction of McConnell and Citizens United ). We do not address that argument. Because Independence Institute has advanced at least one argument—the 501(c)(3...