In Free Speech v. Federal Election Commission, the Tenth Circuit rejected a First Amendment challenge to several FEC regulations defining what groups must disclose information about their donors.

A federal statute, 2 U.S.C. § 434(c) requires anyone who makes “independent expenditures” of over $250 in a calendar year to file certain reports. The FEC has enacted a regulation, 101 C.F.R. § 100.22(b), defines “independent expenditure” as including any expenditure “expressly advocating the election or defeat of a clearly identified candidate.”

In turn, the FEC has defined “expressly advocating” not just by reference to the use of certain words (e.g. “vote for,” “defeat,” “Smith for Congress”), but also “more contextually” as including  any communication that, taken as a whole, ” could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s)….”

Free Speech, an unincorporated association made up of three Wyoming residents, challenged this latter, “contextual” definition as unconstitutionally vague, because it “offers no clear guidelines for speakers to tailor their constitutionally protected conduct and speech,” and “fail[s] to limit its application to expenditures for communications that in ‘express terms’ advocate the election or defeat of a clearly identified candidate for federal office.” Continue reading →