Citizens for Responsibility and Ethics in Washington et al. v. FEC (New Models) - Amicus Brief for the D.C. Circuit

Abstract

At issue in Citizens for Responsibility and Ethics in Washington et al. v. FEC, No. 19-5161 (D.C. Cir.), is whether government may trigger Track 1, political-committee(-like) burdens for a particular organization. Attached is a copyrighted amicus brief that the author filed with the parties' consent, as indicated on page 1, footnote 5. The Supreme Court has applied constitutional scrutiny and established the two-track system under which government may regulate—i.e., require disclosure of—political speech. E.g., Buckley v. Valeo, 424 U.S. 1, 63-64, 79-82 (1976) (per curiam); Randy Elf, The Constitutionality of State Law Triggering Burdens on Political Speech and the Current Circuit Splits, 29 Regent U.L. Rev. 35, 35-37 & nn.1-12 (2016) (“Triggering”). This action does not address Track 2, non-political-committee disclosure requirements. Instead, this action addresses law triggering Track 1, political-committee(-like) burdens. Government may trigger such burdens only for “organizations” that are “under the control of” candidates in their capacities as candidates, or for “organizations” having “the major purpose” under Buckley, 424 U.S. at 79; Triggering at 48 & n.84, and engaging in more than small-scale speech, Sampson v. Buescher, 625 F.3d 1247, 1249, 1251, 1261 (10th Cir. 2010); Triggering at 62-64 & nn.153-54. One method of determining the Buckley major purpose asks whether an organization devotes the majority of its spending to contributions to, or independent expenditures for, candidates or ballot measures, Triggering at 60-61 & nn.147-50, with “independent expenditure” meaning Buckley express advocacy that is not coordinated with a candidate, id. at 36 n.9, 61 n.150, 67 & nn.168-71. No constitutional method of determining the Buckley major purpose includes contributions other than contributions to candidates or ballot measures, or independent spending other than independent expenditures properly understood. Id. at 60-61 & nn.147-50. This excludes contributions to others. This also excludes the appeal-to-vote test. Id. at 60 n.148, 70 & n.184. Indeed, “the appeal-to-vote test—once known as the ‘functional equivalent of express advocacy’—no longer affects whether government may ban, otherwise limit, or regulate speech, and the appeal-to-vote test is vague. It has no place in law.” Id. at 77. The last page of the attached copyrighted brief is a newspaper column by the author. It summarizes Triggering and is cited in Triggering at 85 n.278.