Independence Institute v. FEC - Supplemental Amicus Brief

Abstract

At issue in Independence Institute v. FEC, No. 16-743, 580 U.S. ____, 137 S. Ct. ____ (U.S. Feb. 27, 2017) (mem.), was whether government may regulate genuine-issue speech with Track 2, non-political-committee disclosure requirements. On January 4, 2017, the author filed an amicus brief in support of Plaintiff-Appellant Independence Institute at the jurisdictional-statement stage. That brief is on the Internet sites of Scotusblog, the Federal Election Commission, and the Center for Competitive Politics, which represented Plaintiff-Appellant. On February 27, 2017, the Supreme Court summarily affirmed the three-judge district-court order holding against Plaintiff-Appellant. This affirms the judgment, not the reasoning, of the three-judge district court. Fusari v. Steinberg, 419 U.S. 379, 391 & n.* (1975) (Burger, C.J., concurring), adopted in Mandel v. Bradley, 432 U.S. 173, 176 (1977). This leaves for another day in the Supreme Court the issue of whether government may regulate genuine-issue speech with Track 2, non-political-committee disclosure requirements. Attached is a copyrighted draft of a supplemental amicus brief that the author would have sought the consent of the parties to file -- as indicated on page 1, footnote 4 -- if the Supreme Court had permitted the appeal to proceed. The redlining in the copyrighted draft indicates changes from the January 4, 2017, amicus brief. For the reasons explained in the brief and the copyrighted draft, government may not regulate genuine-issue speech with Track 2, non-political-committee disclosure requirements.