Today, Democracy 21 joined the Campaign Legal Center in filing an amici brief with the U.S. Court of Appeals for the Tenth Circuit in the latest of a long line of challenges to federal disclosure laws.  Free Speech v. FEC is a challenge to the “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the Federal Election Commission’s (FEC) methodology for determining when a group has campaign activity as its “major purpose,” an important step in the larger determination of political committee status.

The subpart (b) definition of express advocacy is crucial because it captures sham issue ads that do not say “vote for” or “vote against” a candidate, but “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”

“The Tenth Circuit should clearly affirm the lower court decision to throw this case out of court.  The plaintiffs choose to ignore multiple Supreme Court cases and the decisions of other Circuits which have rejected their arguments,” said Democracy 21 President Fred Wertheimer. “Their case comes down to an attack on disclosure, which the Supreme Court in the Citizens United case said is an essential protection for citizens to know who is spending money to influence their vote.”

This case is part of a flood of litigation nationwide challenging state, local and federal disclosure laws in an attempt to undermine transparency in the political process.  Most recently, the Fourth Circuit Court of Appeals rejected a similar challenge to the same regulations in Real Truth About Abortion v. FEC.

Free Speech began its challenge in March of 2012, by submitting an advisory opinion request to the FEC proposing to run a series of attack ads without registering as a political committee or complying with the disclosure requirements for political committees.  Not getting the answer it wanted, the group filed suit against the regulations in the U.S. District Court for the District of Wyoming.  Democracy 21 joined the Campaign Legal Center in filing comments with the FEC and an amici brief with the court in opposition.  In October 2012, the District Court refused to grant the injunction citing a “wall of precedent” upholding disclosure laws.

The Legal Center and Democracy 21 were aided in this litigation by Larry B. Jones of Simpson, Kepler & Edwards, LLC, the Cody, Wyoming Division of Burg Simpson Eldredge Hersh & Jardine, P.C.


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