Speechnow.org v. Federal Election Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 27, 2010 Decided March 26, 2010

No. 08-5223

SPEECHNOW.ORG, ET AL.,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00248-JR)

No. 09-5342

DAVID KEATING, ET AL.,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

2

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00248-JR)

Steven M. Simpson argued the cause for appellants. With

him on the brief were William H. Mellor, Robert W. Gall,

Robert P. Frommer, Paul M. Sherman, and Stephen M.

Hoersting.

Heidi K. Abegg and Alan P. Dye were on the briefs for

amici curiae Alliance for Justice, et al. in support of appellants.

David B. Kolker, Associate General Counsel, Federal

Election Commission, argued the cause for appellee. With him

on the briefs was Vivien Clair, Attorney.

Joseph G. Hebert, Donald J. Simon, Scott L. Nelson, Fred

Wertheimer were on the briefs for amici curiae Campaign Legal

Center and Democracy 21.

Howard R. Rubin was on the briefs for amici curiae The

Brennan Center for Justice and Professor Richard Briffault in

support of appellee.

Before: SENTELLE, Chief Judge, GINSBURG, HENDERSON,

ROGERS, TATEL, GARLAND, BROWN, GRIFFITH, and

KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: David Keating is president of an

unincorporated nonprofit association, SpeechNow.org

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(SpeechNow), that intends to engage in express advocacy1

supporting candidates for federal office who share his views on

First Amendment rights of free speech and freedom to assemble.

In January 2008, the Federal Election Committee (FEC) issued

a draft advisory opinion concluding that under the Federal

Election Campaign Act (FECA), SpeechNow would be required

to organize as a “political committee” as defined by 2 U.S.C.

§ 431(4) and would be subject to all the requirements and

restrictions concomitant with that designation. Keating and four

other individuals availed themselves of 2 U.S.C. § 437h, under

which an individual may seek declaratory judgment to construe

the constitutionality of any provision of FECA. As required by

that provision, the district court certified the constitutional

questions directly to this court for en banc determination.

Thereafter, the Supreme Court decided Citizens United v. FEC,

130 S. Ct. 876 (2010), which resolves this appeal. In accordance

with that decision, we hold that the contribution limits of 2

U.S.C. § 441a(a)(1)(C) and 441a(a)(3) are unconstitutional as

applied to individuals’ contributions to SpeechNow. However,

we also hold that the reporting requirements of 2 U.S.C. §§ 432,

433, and 434(a) and the organizational requirements of 2 U.S.C.

§ 431(4) and 431(8) can constitutionally be applied to

SpeechNow. In this action the district court also denied the

plaintiffs’ motion to enjoin FEC enforcement of FECA’s

contribution limits against SpeechNow. Because we hold that

those provisions cannot be constitutionally applied, we vacate

1

“Express advocacy” is regulated more strictly by the FEC than so-

called “issue ads” or other political advocacy that is not related to a

specific campaign. In order to preserve the FEC’s regulations from

invalidation for being too vague, the Supreme Court has defined

express advocacy as “communications containing express words of

advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’

‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’

‘reject.’” Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976).

4

the order denying that injunction and remand the matter to the

district court for further proceedings consistent with our

decision.

I. Background

SpeechNow is an unincorporated nonprofit association

registered as a “political organization” under § 527 of the

Internal Revenue Code. Its purpose is to promote the First

Amendment rights of free speech and freedom to assemble by

expressly advocating for federal candidates whom it views as

supporting those rights and against those whom it sees as

insufficiently committed to those rights. It intends to acquire

funds solely through donations by individuals. SpeechNow

further intends to operate exclusively through “independent

expenditures.” FECA defines “independent expenditures” as

expenditures “expressly advocating the election or defeat of a

clearly identified candidate” that are “not made in concert or

cooperation with or at the request or suggestion of such

candidate, the candidate’s authorized political committee, or

their agents, or a political party committee or its agents.” 2

U.S.C. § 431(17). SpeechNow has five members, two of whom

are plaintiffs in this case: David Keating, who is also

SpeechNow’s president and treasurer, and Edward Crane.

Keating makes the operational decisions for SpeechNow,

including in which election campaigns to run advertisements,

which candidates to support or oppose, and all administrative

decisions.

Though it has not yet begun operations, SpeechNow has

made plans both for fundraising and for making independent

expenditures. All five of the individual plaintiffs – Keating,

Crane, Fred Young, Brad Russo, and Scott Burkhardt – are

prepared to donate to SpeechNow. Keating proposes to donate

$5500. Crane proposes to donate $6000. Young, who is

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otherwise unaffiliated with SpeechNow, proposes to donate

$110,000. Russo and Burkhardt want to make donations of

$100 each. In addition, as of August 2008, seventy-five other

individuals had indicated on SpeechNow’s website that they

were interested in making donations. As for expenditures,

SpeechNow planned ads for the 2008 election cycle against two

incumbent candidates for federal office who, in the opinion of

SpeechNow, did not sufficiently support First Amendment

rights. These ads would have cost around $12,000 to produce.

Keating intended to place the ads so that the target audience

would view the ads at least ten times, which would have cost

around $400,000. As SpeechNow never accepted any donations,

it never produced or ran these ads. However, SpeechNow

intends to run similar ads for the 2010 election cycle if it is not

subject to the contribution limits of § 441a(a) at issue in this

case.

On November 19, 2007, SpeechNow filed with the FEC

a request for an advisory opinion, asking whether it must

register as a political committee and if donations to SpeechNow

qualify as “contributions” limited by § 441a(a)(1)(C) and

441a(a)(3). At the time, the FEC did not have enough

commissioners to issue an opinion, but it did issue a draft

advisory opinion stating that SpeechNow would be a political

committee and contributions to it would be subject to the

political committee contribution limits. Believing that

subjecting SpeechNow to all the restrictions imposed on

political committees would be unconstitutional, SpeechNow and

the five individual plaintiffs filed a complaint in the district

court requesting declaratory relief against the FEC under 2

U.S.C. § 437h. Because § 437h allows only the FEC, political

parties, or individuals the right to bring such actions, this court

removed SpeechNow from the § 437h proceedings. SpeechNow

remains in the caption for this case because it, along with the

individual plaintiffs, also sought a preliminary injunction

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prohibiting the FEC from enforcing the political committee

contribution limits with respect to contributions to SpeechNow,

and the denial of that injunction is also on appeal before this

court. Because this court was already scheduled to hear the

constitutional issues en banc, we consolidated the appeal with

the en banc proceeding.

Section 437h provides that a “district court immediately

shall certify all questions of constitutionality of this Act [FECA]

to the United States court of appeals for the circuit involved,

which shall hear the matter sitting en banc.” The district court

made findings of fact, and certified to this court five questions:

1. Whether the contribution limits contained in 2 U.S.C.

§§ 441a(a)(1)(C) and 441a(a)(3) violate the First

Amendment by preventing David Keating,

SpeechNow.org’s president and treasurer, from

accepting contributions to SpeechNow.org in excess of

the limits contained in §§ 441a(a)(1)(C) and 441a(a)(3).

2. Whether the contribution limit mandated by 2 U.S.C.

§ 441a(a)(1)(C) violates the First Amendment by

preventing the individual plaintiffs from making

contributions to SpeechNow.org in excess of $5000 per

calendar year.

3. Whether the biennial aggregate contribution limit

mandated by 2 U.S.C. § 441a(a)(3) violates the First

Amendment by preventing Fred Young from making

contributions to SpeechNow.org that would exceed his

individual biennial aggregate limit.

4. Whether the organizational, administrative, and

continuous reporting requirements set forth in 2 U.S.C.

§§ 432, 433, and 434(a) violate the First Amendment by

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requiring David Keating, SpeechNow.org’s president

and treasurer, to register SpeechNow.org as a political

committee, to adopt the organizational structure of a

political committee, and to comply with the continuous

reporting requirements that apply to political

committees.

5. Whether 2 U.S.C. §§ 431(4) and 431(8) violate the

First Amendment by requiring David Keating,

SpeechNow.org’s president and treasurer, to register

SpeechNow.org as a political committee and comply

with the organizational and continuous reporting

requirements for political committees before

SpeechNow.org has made any expenditures or broadcast

any advertisements.

SpeechNow.org v. FEC, No. 08-0248 (D.D.C. Sept. 28, 2009).

Under FECA, a political committee is “any committee,

club, association, or other group of persons” that receives

contributions of more than $1000 in a year or makes

expenditures of more than $1000 in a year. 2 U.S.C. § 431(4).

Once a group is so designated, contributions to the committee

are restricted by 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3). The

first provision limits an individual’s contribution to a political

committee to $5000 per calendar year; the second limits an

individual’s total contributions to all political committees to

$69,900 biennially.2 See Price Index Increases for Contribution

2

Subject to exceptions not here relevant, FECA defines

“contributions” as “any gift, subscription, loan, advance, or deposit of

money or anything of value made by any person for the purpose of

influencing any election for Federal office.” 2 U.S.C. § 431(8)(A)(i).

Again subject to exceptions, the Act defines “expenditure” as “any

purchase, payment, distribution, loan, advance, deposit, or gift of

money or anything of value, made by any person for the purpose of

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and Expenditure Limitations, 74 Fed. Reg. 7437 (Feb. 17, 2009)

(increasing § 441a(a)(3)(B)’s limit from $57,500 to $69,900).

A political committee also must comply with all applicable

recordkeeping and reporting requirements of 2 U.S.C. §§ 432,

433, and 434(a). Under those sections, if the FEC regulates

SpeechNow as a political committee, SpeechNow would be

required to, among other things: appoint a treasurer, § 432(a);

maintain a separately designated bank account, § 432(b), 432(h);

keep records for three years that include the name and address

of any person who makes a contribution in excess of $50,

§ 432(c)(1)-(2), 432(d); keep records for three years that include

the date, amount, and purpose of any disbursement and the name

and address of the recipient, § 432(c)(5), 432(d); register with

the FEC within ten days of becoming a political committee,

§ 433(a); file with the FEC quarterly or monthly reports during

the calendar year of a general election detailing cash on hand,

total contributions, the identification of each person who

contributes an annual aggregate amount of more than $200,

independent expenditures, donations to other political

committees, any other disbursements, and any outstanding debts

or obligations, § 434(a)(4), 434(b); file a pre-election report and

a post-election report detailing the same, id.; file semiannual or

monthly reports with the same information during years without

a general election, id.; and file a written statement in order to

terminate the committee, § 433(d).

II. Analysis

A. Contribution Limits (Certified Questions 1-3)

The First Amendment mandates that “Congress shall make

no law . . . abridging the freedom of speech.” In Buckley v.

influencing any election for Federal office; and [ ] a written contract,

promise, or agreement to make an expenditure.” 2 U.S.C. §

431(9)(A)(i)-(ii).

9

Valeo, 424 U.S. 1 (1976), the Supreme Court held that, although

contribution limits do encroach upon First Amendment interests,

they do not encroach upon First Amendment interests to as great

a degree as expenditure limits. In Buckley, the Supreme Court

first delineated the differing treatments afforded contribution

and expenditure limits. In that case, the Court struck down

limits on an individual’s expenditures for political advocacy, but

upheld limits on contributions to political candidates and

campaigns. In making the distinction, the Court emphasized

that in “contrast with a limitation upon expenditures for political

expression, a limitation upon the amount that any one person or

group may contribute to a candidate or political committee

entails only a marginal restriction upon the contributor’s ability

to engage in free communication.” Id. at 20-21. However,

contribution limits still do implicate fundamental First

Amendment interests. Id. at 23.

When the government attempts to regulate the financing of

political campaigns and express advocacy through contribution

limits, therefore, it must have a countervailing interest that

outweighs the limit’s burden on the exercise of First

Amendment rights. Thus a “contribution limit involving

significant interference with associational rights must be closely

drawn to serve a sufficiently important interest.” Davis v. FEC,

128 S. Ct. 2759, 2772 n.7 (2008) (quoting McConnell v. FEC,

540 U.S. 93, 136 (2003)) (internal quotation marks omitted).

The Supreme Court has recognized only one interest sufficiently

important to outweigh the First Amendment interests implicated

by contributions for political speech: preventing corruption or

the appearance of corruption. Id. at 2773; FEC v. Nat’l

Conservative Political Action Comm., 470 U.S. 480, 496-97

(1985) (“NCPAC”). The Court has rejected each of the few

other interests the government has, at one point or another,

suggested as a justification for contribution or expenditure

limits. Equalization of differing viewpoints is not a legitimate

10

government objective. Davis, 128 S. Ct. at 2773. An

informational interest in “identifying the sources of support for

and opposition to” a political position or candidate is not enough

to justify the First Amendment burden. Citizens Against Rent

Control v. City of Berkeley, 454 U.S. 290, 298 (1981). And,

though this rationale would not affect an unincorporated

association such as SpeechNow, the Court has also refused to

find a sufficiently compelling governmental interest in

preventing “the corrosive and distorting effects of immense

aggregations of wealth that are accumulated with the help of the

corporate form.” Citizens United v. FEC, 130 S. Ct. 876, 902,

905 (2010) (quoting Austin v. Mich. Chamber of Commerce, 494

U.S. 652, 660 (1990), and rejecting Austin’s and subsequent

cases’ reliance on that interest).

Given this precedent, the only interest we may evaluate to

determine whether the government can justify contribution

limits as applied to SpeechNow is the government’s anti-

corruption interest. Because of the Supreme Court’s recent

decision in Citizens United v. FEC, the analysis is

straightforward. There, the Court held that the government has

no anti-corruption interest in limiting independent expenditures.3

Citizens United involved a nonprofit corporation that in

January 2008 produced a film that was highly critical of then-

Senator Hillary Clinton, a candidate in the Democratic Party’s

2008 Presidential primary elections. The film was, “in essence,

. . . a feature-length negative advertisement that urges viewers

to vote against Senator Clinton for President.” Citizens United,

130 S. Ct. at 890. As such, the film was subject to the

restrictions of 2 U.S.C. § 441b. That provision made it unlawful

for any corporation or union to use general treasury funds to

3

Of course, the government still has an interest in preventing quid pro

quo corruption. However, after Citizens United, independent

expenditures do not implicate that interest.

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make independent expenditures as defined by 2 U.S.C. §

431(17) or expenditures for speech defined as “electioneering

communications,” which are certain types of political ads aired

shortly before an election or primary, 2 U.S.C. § 434(f)(3). The

Supreme Court declared this expenditure ban unconstitutional,

holding that corporations may not be prohibited from spending

money for express political advocacy when those expenditures

are independent from candidates and uncoordinated with their

campaigns. 130 S. Ct. at 913.

The independence of independent expenditures was a

central consideration in the Court’s decision. By definition,

independent expenditures are “not made in concert or

cooperation with or at the request or suggestion of such

candidate, the candidate’s authorized political committee, or

their agents, or a political party committee or its agents.” 2

U.S.C. § 431(17). As the Buckley Court explained when it

struck down a limit on independent expenditures, “[t]he absence

of prearrangement and coordination of an expenditure with the

candidate or his agent . . . alleviates the danger that expenditures

will be given as a quid pro quo for improper commitments from

the candidate.” Citizens United, 130 S. Ct. at 908 (quoting

Buckley, 424 U.S. at 47). However, the Buckley Court left open

the possibility that the future might bring data linking

independent expenditures to corruption or the appearance of

corruption. The Court merely concluded that independent

expenditures “do[] not presently appear to pose dangers of real

or apparent corruption comparable to those identified with large

campaign contributions.” 424 U.S. at 46.

Over the next several decades, Congress and the Court gave

little further guidance respecting Buckley’s reasoning that a lack

of coordination diminishes the possibility of corruption. Just a

few months after Buckley, Congress codified a ban on

corporations’ independent expenditures at 2 U.S.C. § 441b. In

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1978, in First National Bank of Boston v. Bellotti, 435 U.S. 765

(1978), the Court “struck down a state-law prohibition on

corporate independent expenditures related to referenda,” but

did not “address the constitutionality of the State’s ban on

corporate independent expenditures to support candidates.”

Citizens United, 130 S. Ct. at 902, 903. Though the Bellotti

Court sweepingly rejected “the proposition that speech that

otherwise would be within the protection of the First

Amendment loses that protection simply because its source is a

corporation,” 435 U.S. at 784, it limited the implications of that

rejection by opining in a footnote that “Congress might well be

able to demonstrate the existence of a danger of real or apparent

corruption in independent expenditures by corporations to

influence candidate elections,” 435 U.S. at 788 n.26. Then, in

Austin, the Court expressly upheld a Michigan law that

prohibited corporate independent expenditures. 494 U.S. at 654-

55. And in McConnell, the Court relied on Austin to uphold the

Bipartisan Campaign Reform Act of 2002’s (BCRA’s) extension

of § 441b’s ban on corporate expenditures to electioneering

communications. 540 U.S. at 203-09.

The Citizens United Court reevaluated this line of cases and

found them to be incompatible with Buckley’s original

reasoning. The Court overruled Austin and the part of

McConnell that upheld BCRA’s amendments to § 441b. More

important for this case, the Court did so by expressly deciding

the question left open by the footnoted caveat in Bellotti. The

Court stated, “[W]e now conclude that independent

expenditures, including those made by corporations, do not give

rise to corruption or the appearance of corruption.” Citizens

United, 130 S. Ct. at 909.

The Court came to this conclusion by looking to the

definition of corruption and the appearance of corruption. For

several decades after Buckley, the Court’s analysis of the

13

government’s anti-corruption interest revolved largely around

the “hallmark of corruption,” “financial quid pro quo: dollars for

political favors,” NCPAC, 470 U.S. at 497. However, in a series

of cases culminating in McConnell, the Court expanded the

definition to include “the appearance of undue influence”

created by large donations given for the purpose of “buying

access,” 540 U.S. at 144, 148. See also FEC v. Colo.

Republican Fed. Campaign Comm., 533 U.S. 431, 441 (2001);

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 389 (2000). The

McConnell Court concluded that limiting the government’s anti-

corruption interest to preventing quid pro quo was a “crabbed

view of corruption, and particularly of the appearance of

corruption” that “ignores precedent, common sense, and the

realities of political fundraising.” 540 U.S. at 152. The Citizens

United Court retracted this view of the government’s interest,

saying that “[t]he fact that speakers may have influence over or

access to elected officials does not mean that these officials are

corrupt.” 130 S. Ct. at 910. The Court returned to its older

definition of corruption that focused on quid pro quo, saying

that “[i]ngratiation and access . . . are not corruption.” Id.

Therefore, without any evidence that independent expenditures

“lead to, or create the appearance of, quid pro quo corruption,”

and only “scant evidence” that they even ingratiate, id., the

Court concluded that independent expenditures do not corrupt

or create the appearance of corruption.

In its briefs in this case, the FEC relied heavily on

McConnell, arguing that independent expenditures by groups

like SpeechNow benefit candidates and that those candidates are

accordingly grateful to the groups and to their donors. The

FEC’s argument was that large contributions to independent

expenditure groups “lead to preferential access for donors and

undue influence over officeholders.” Appellee’s Br. in Keating

v. FEC, at 16. Whatever the merits of those arguments before

Citizens United, they plainly have no merit after Citizens United.

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In light of the Court’s holding as a matter of law that

independent expenditures do not corrupt or create the

appearance of quid pro quo corruption, contributions to groups

that make only independent expenditures also cannot corrupt or

create the appearance of corruption. The Court has effectively

held that there is no corrupting “quid” for which a candidate

might in exchange offer a corrupt “quo.”

Given this analysis from Citizens United, we must conclude

that the government has no anti-corruption interest in limiting

contributions to an independent expenditure group such as

SpeechNow. This simplifies the task of weighing the First

Amendment interests implicated by contributions to SpeechNow

against the government’s interest in limiting such contributions.

As we have observed in other contexts, “something

. . . outweighs nothing every time.” Nat’l Ass’n of Retired Fed.

Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).

Thus, we do not need to quantify to what extent contributions to

SpeechNow are an expression of core political speech. We do

not need to answer whether giving money is speech per se, or if

contributions are merely symbolic expressions of general

support, or if it matters in this case that just one person, David

Keating, decides what the group will say. All that matters is that

the First Amendment cannot be encroached upon for naught.

At oral argument, the FEC insisted that Citizens United

does not disrupt Buckley’s longstanding decision upholding

contribution limits. This is literally true. But, as Citizens United

emphasized, the limits upheld in Buckley were limits on

contributions made directly to candidates. Limits on direct

contributions to candidates, “unlike limits on independent

expenditures, have been an accepted means to prevent quid pro

quo corruption.” Citizens United, 130 S. Ct. at 909 (citing

McConnell, 540 U.S. at 136-38 & n.40).

15

The FEC also argues that we must look to the discussion

about the potential for independent expenditures to corrupt in

Colorado Republican Federal Campaign Committee v. FEC,

518 U.S. 604 (1996). This, too, is unavailing. In Colorado

Republican, the Court considered the constitutionality of FECA

provisions that exempted political party committees from the

general political committee contribution limits, but imposed

limitations on political party committees’ independent

expenditures. Id. at 611-13. A majority of the Court agreed that

the independent expenditure limitations were unconstitutional,

but no more than three Justices joined any single opinion. It is

true that the opinion of Justice Breyer did discuss the potential

for corruption or the appearance of corruption potentially arising

from independent expenditures, saying that “[t]he greatest

danger of corruption . . . appears to be from the ability of donors

to give sums up to $20,000 to a party which may be used for

independent party expenditures for the benefit of a particular

candidate,” thus evading the limits on direct contributions to

candidates. Id. at 617 (opinion of Breyer, J.). But Colorado

Republican concerned expenditures by political parties, which

are wholly distinct from “independent expenditures” as defined

by 2 U.S.C. § 431(17). Moreover, a discussion in a 1996

opinion joined by only three Justices cannot control our analysis

when the more recent opinion of the Court in Citizens United

clearly states as a matter of law that independent expenditures

do not pose a danger of corruption or the appearance of

corruption.

The FEC argues that the analysis of Citizens United does

not apply because that case involved an expenditure limit while

this case involves a contribution limit. [Oral Tr. at 30, 31.]

Alluding to the divide between expenditure limits and

contribution limits established by Buckley, the FEC insists that

contribution limits are subject to a lower standard of review than

expenditure limits, so that “what may be insufficient to justify

16

an expenditure limit may be sufficient to justify a contribution

limit.” Oral Arg. Tr. at 39. Plaintiffs, on the other hand, argue

that Citizens United stands for the proposition that “burdensome

laws trigger strict scrutiny.” Oral Arg. Tr. at 58. We do not find

it necessary to decide whether the logic of Citizens United has

any effect on the standard of review generally afforded

contribution limits. The Citizens United Court avoided

“reconsider[ing] whether contribution limits should be subjected

to rigorous First Amendment scrutiny,” 130 S. Ct. at 909, and so

do we. Instead, we return to what we have said before: because

Citizens United holds that independent expenditures do not

corrupt or give the appearance of corruption as a matter of law,

then the government can have no anti-corruption interest in

limiting contributions to independent expenditure–only

organizations. No matter which standard of review governs

contribution limits, the limits on contributions to SpeechNow

cannot stand.

We therefore answer in the affirmative each of the first

three questions certified to this Court. The contribution limits

of 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) violate the First

Amendment by preventing plaintiffs from donating to

SpeechNow in excess of the limits and by prohibiting

SpeechNow from accepting donations in excess of the limits.

We should be clear, however, that we only decide these

questions as applied to contributions to SpeechNow, an

independent expenditure–only group. Our holding does not

affect, for example, § 441a(a)(3)’s limits on direct contributions

to candidates.

B. Organizational and Reporting Requirements (Certified

Questions 4 & 5)

Disclosure requirements also burden First Amendment

interests because “compelled disclosure, in itself, can seriously

17

infringe on privacy of association and belief.” Buckley, 424

U.S. at 64. However, in contrast with limiting a person’s ability

to spend money on political speech, disclosure requirements

“impose no ceiling on campaign-related activities,” id., and “do

not prevent anyone from speaking,” McConnell, 540 U.S. at 201

(internal quotation marks and alteration omitted). Because

disclosure requirements inhibit speech less than do contribution

and expenditure limits, the Supreme Court has not limited the

government’s acceptable interests to anti-corruption alone.

Instead, the government may point to any “sufficiently

important” governmental interest that bears a “substantial

relation” to the disclosure requirement. Citizens United, 130 S.

Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66, and citing

McConnell, 540 U.S. at 231-32). Indeed, the Court has

approvingly noted that “disclosure is a less restrictive alternative

to more comprehensive regulations of speech.” Citizens United,

130 S. Ct. at 915 (citing FEC v. Mass. Citizens for Life, Inc., 479

U.S. 238, 262 (1986)).

The Supreme Court has consistently upheld organizational

and reporting requirements against facial challenges. In

Buckley, the Court upheld FECA’s disclosure requirements,

including the requirements of §§ 432, 433, and 434(a) at issue

here, based on a governmental interest in “provid[ing] the

electorate with information” about the sources of political

campaign funds, not just the interest in deterring corruption and

enforcing anti-corruption measures. 424 U.S. at 66. In

McConnell, the Court upheld similar requirements for

organizations engaging in electioneering communications for the

same reasons. 540 U.S. at 196. Citizens United upheld

disclaimer and disclosure requirements for electioneering

communications as applied to Citizens United, again citing the

government’s interest in providing the electorate with

information. 130 S. Ct. at 913-14. And while the Court in

Davis v. FEC found that a certain disclosure requirement

18

violated the First Amendment, it only did so because that

disclosure triggered the application of an unconstitutional

provision which imposed asymmetrical contribution limits on

candidates based on how much of their personal funds they

planned to spend. Because the asymmetrical limits were

unconstitutional, there was no justification for the disclosure

requirement. 128 S. Ct. at 2775.

Plaintiffs do not disagree that the government may

constitutionally impose reporting requirements, and SpeechNow

intends to comply with the disclosure requirements that would

apply even if it were not a political committee. See 2 U.S.C. §

434(c) (reporting requirements for individuals or groups that are

not political committees that make independent expenditures);

§ 441d (disclaimer requirements for independent expenditures

and electioneering communications). Instead, plaintiffs argue

that the additional burden that would be imposed on SpeechNow

if it were required to comply with the organizational and

reporting requirements applicable to political committees is too

much for the First Amendment to bear. We disagree.

SpeechNow, as we have said, intends to comply with the

disclosure requirements applicable to those who make

independent expenditures but are not organized as political

committees. Those disclosure requirements include, for

example, reporting much of the same data on contributors that

is required of political committees, 2 U.S.C. § 434(c);

information about each independent expenditure, such as which

candidate the expenditure supports or opposes, id.; reporting

within 24 hours expenditures of $1000 or more made in the

twenty days before an election, § 434(g)(1); and reporting within

48 hours any expenditures or contracts for expenditures of

$10,000 or more made at any other time, § 434(g)(2).

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Because SpeechNow intends only to make independent

expenditures, the additional reporting requirements that the FEC

would impose on SpeechNow if it were a political committee are

minimal. Indeed, at oral argument, plaintiffs conceded that “the

reporting is not really going to impose an additional burden” on

SpeechNow. Oral Arg. Tr. at 14 (“Judge Sentelle: So, just

calling you a [PAC] and not making you do anything except the

reporting is not really going to impose an additional burden on

you right? . . . Mr. Simpson: I think that’s true. Yes.”). Nor do

the organizational requirements that SpeechNow protests, such

as designating a treasurer and retaining records, impose much of

an additional burden upon SpeechNow, especially given the

relative simplicity with which SpeechNow intends to operate.

Neither can SpeechNow claim to be burdened by the

requirement to organize as a political committee as soon as it

receives $1000, as required by the definition of “political

committee,” 2 U.S.C. § 431(4), 431(8), rather than waiting until

it expends $1000. Plaintiffs argue that such a requirement

forces SpeechNow to comply with the burdens of political

committees without knowing if it is going to have enough

money to make its independent expenditures. This is a specious

interpretation of the facts before us. As the district court found,

SpeechNow already has $121,700 in planned contributions from

plaintiffs alone, with dozens more individuals claiming to want

to donate. SpeechNow can hardly compare itself to “ad hoc

groups that want to create themselves on the spur of the

moment,” as plaintiffs attempted at oral argument. Oral Arg. Tr.

at 17. In addition, plaintiffs concede that in practice the burden

is substantially the same to any group whether the FEC imposes

reporting requirements at the point of the money’s receipt or at

the point of its expenditure. Oral Arg. Tr. at 15-16. A group

raising money for political speech will, we presume, always

hope to raise enough to make it worthwhile to spend it.

Therefore, groups would need to collect and keep the necessary

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data on contributions even before an expenditure is made; it

makes little difference to the burden of compliance when the

group must comply as long as it anticipates complying at some

point.

We cannot hold that the organizational and reporting

requirements are unconstitutional. If SpeechNow were not a

political committee, it would not have to report contributions

made exclusively for administrative expenses. See 2 U.S.C.

§ 434(c)(2)(C) (requiring only the reporting of contributions

“made for the purpose of furthering an independent

expenditure”). But the public has an interest in knowing who is

speaking about a candidate and who is funding that speech, no

matter whether the contributions were made towards

administrative expenses or independent expenditures. Further,

requiring disclosure of such information deters and helps expose

violations of other campaign finance restrictions, such as those

barring contributions from foreign corporations or individuals.

These are sufficiently important governmental interests to justify

requiring SpeechNow to organize and report to the FEC as a

political committee.

We therefore answer the last two certified questions in the

negative. The FEC may constitutionally require SpeechNow to

comply with 2 U.S.C. §§ 432, 433, and 434(a), and it may

require SpeechNow to start complying with those requirements

as soon as it becomes a political committee under the current

definition of § 431(4).

Conclusion

We conclude that the contribution limits set forth in

certified questions 1, 2, and 3 cannot be constitutionally applied

against SpeechNow and the individual plaintiffs. We further

conclude that there is no constitutional infirmity in the

21

application of the organizational, administrative, and reporting

requirements set forth in certified questions 4 and 5. We further

conclude that because of our decision today, as guided by

Citizens United, which intervened since the entry of the district

court’s denial of plaintiffs’ petition for injunctive relief, the

district court’s order denying injunctive relief is vacated and

remanded for further proceedings consistent with our decision.

So ordered.