Citizens for Responsibility and Ethics in Washington v. FEC - Amicus Brief

Abstract

At issue in Citizens for Responsibility and Ethics in Washington v. FEC, No. 18-5136 (D.C. Cir.), was whether government may trigger Track 1, political-committee(-like) burdens for an organization. Attached is a copyrighted draft—dated February 20, 2019—of the amicus brief that the author would have filed with the parties' consent—as indicated on page 1, footnote 5—in this second appeal in this challenge if the court had not dismissed the second appeal as premature on September 19, 2018, just as it dismissed the first appeal as premature on April 4, 2017. 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 independent spending other than independent expenditures properly understood. Id. at 60-61 & nn.149-50. This excludes Federal Election Campaign Act electioneering communications, id. at 68 & nn.176-78, and 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 draft is a newspaper column by the author. It summarizes Triggering and is cited in Triggering at 85 n.278.