Tenth Circuit rejects First Amendment challenge to FEC disclosure requirements

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.”

In other words, Free Speech was arguing that the disclosure requirement should only apply to groups or persons who advocate the election or defeat of federal candidates in “express  terms,” not to those who do everything but use “express terms,” but whose opposition or support for a federal candidate is nevertheless obvious.

Judge Michael Murphy‘s opinion adopted the District Court’s opinion as the Tenth Circuit’s own. The District Court’s opinion rejected Free Speech’s argument because previous Supreme Court decisions (including McConnell v. FEC, FEC v. Wisconsin Right to Life, and Citizens United) have previously held that not just express words, but also their “functional equivalent,” may constitutionally trigger a disclosure requirement. And the fact that this standard involves some line-drawing, and does not provide a crystal clear answer in every case, does not make it unconstitutionally vague.

I’m not an election law expert, so I don’t know how sound this decision is.  What do you think? Did the Tenth Circuit get it right? If you have an opinion to share, please leave a comment below.

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