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Independence Inst. v. FEC amicus 16-743

Independence Inst. v. FEC amicus 16-743

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No. 16-743 The Supreme Court the United States
_________
INDEPENDENCE INSTITUTE,
Appellant,
FEDERAL ELECTION COMMISSION,
Appellee.
_________ Appeal from the United States District
Court for the District Columbia
_________
BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT APPELLANT
_________ Russell Nobile
WISE CARTER CHILD
CARAWAY, P.A.
1105 30th Avenue
Gulfport, 39501
(228) 385-9390
trn@wisecarter.com
Dated: January 2017
Robert Popper
Paul Orfanedes
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street,
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
TABLE CONTENTS
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................1
ARGUMENT ...............................................................4
Given the Potential Infringement First
Amendment Rights and Harm
Informed Society, the Court has Required
Compelling Interest, Subject Exacting
Scrutiny, Justify the Forced Disclosure Donor Records...............................................4
II.
Amici Have Firsthand Knowledge that
Fear Public Disclosure Donations and Consequent Harassment Diminishes
Individuals Willingness Donate
Join Conservative Organizations. ...................7
CONCLUSION ..........................................................17
TABLE AUTHORITIES
CASES
Bates City Little Rock,
361 U.S. 516 (1960).......................................5,
Buckley Valeo, 424 U.S. (1976) ............................5
Cantwell Connecticut, 310 U.S. 296 (1940) ............5
Citizens United Fed. Election Commn,
558 U.S. 310 (2010).........................................5,
First National Bank Boston Bellotti,
435 U.S. 765 (1978)...............................................4
Gibson Fla. Legis. Investigation Comm.,
372 U.S. 539 (1963)...............................................4
Indep. Inst. Fed. Election Commn,
No. 14-CV-1500, 2016 6560396
(D.D.C. Nov. 2016) ........................................ 1-2
NAACP Alabama, 357 U.S. 449 (1958) ..............5,
Nat Ass for Advancement Colored People
Button, 371 U.S. 415 (1963) .............................4,
NorCal Tea Party Patriots, al. I.R.S., al.,
No. 1:13-CV-341 (S.D. Ohio May 24, 2016) .......13
Pac. Gas Elec. Co. Pub. Utilities Comm
California, 475 U.S. (1986) ...............................4
iii
Talley State California,
362 U.S. (1960).................................................6
Thornhill Alabama, 310 U.S. (1940) ...........4,
True the Vote, Inc. Internal Revenue Serv.,
831 F.3d 551 (D.C. Cir. 2016) .............................12
U.S. NorCal Tea Party Patriots (In United
States), 817 F.3d 953 (6th Cir. 2016) .................12
STATUTES U.S.C. 30104 ....................................................1,
OTHER AUTHORITIES
Alistair Barr,
Mozilla CEO Brendan Eich Steps Down, WALL
ST. J., April 2014, https://goo.gl/6cevCo .........10
Don Edwards,
WATERGATE HEARINGS, BOOK 31, 33. Book VIII,
Vol. Alleged Efforts White House Officials Acquire Information from the Internal
Revenue Service and Direct Certain IRS
Activities (1974), https://goo.gl/rnsjPk .............15
FAQ CEO Resignation,
MOZILLA.ORG, https://goo.gl/MgyaDg ...................9
Judicial Watch,
ABCs IRS Mess; Justice Dept. Tainted Too
https://goo.gl/rtDGoS ..........................................11
Kimberley Strassel,
Obama Enemies List Part II, WALL ST. J.,
July 19, 2012, https://goo.gl/WtBiq3 ..................10
Patricia Sullivan,
IRS Chief Successfully Fought Efforts Use
Tax Audits Against Nixon Foes, WASH. POST,
Feb. 2009, https://goo.gl/XYJxnd....................15
The IRS Targeting Investigation: What the
Administration Doing?
Hearing Before Subcomm. Econ. Growth, Job
Creation and Regulatory Affairs the Comm Oversight and Govt Reform,
113th Cong. 2-3 (Feb. 2014) .....................13,
Thomas Messner,
The Price Prop THE HERITAGE FOUNDATION,
(Dec. 31, 2016), https://goo.gl/KV7Dbv ................9
Tom Fitton,
THE CORRUPTION CHRONICLES (Simon
Schuster, 2014) ...................................................14
U.S. Treas. Insp. Gen. for Tax Admin.,
Ref. No. 2013-10-053, Inappropriate Criteria
Were Used Identify Tax-Exempt Applications
for Review (May 14, 2013) ......................11,
INTERESTS THE AMICI CURIAE
Judicial Watch, Inc. Judicial Watch
nonpartisan, nonprofit 501(c)(3) educational
foundation that seeks promote transparency,
integrity, and accountability government and
fidelity the rule law. Judicial Watch regularly
files amicus curiae briefs means advance its
public interest mission and has appeared amicus
curiae this Court number occasions.
The Allied Educational Foundation AEF
501(c)(3) nonprofit charitable and educational
foundation based Englewood, New Jersey.
Founded 1964, AEF dedicated promoting
education diverse areas study. AEF regularly
files amicus curiae briefs means advance its
purpose and has appeared amicus curiae
this Court number occasions.
The three-judge panel the U.S. District Court
for the District Columbia held that issue
advertisement triggered the disclosure requirements
under the Bipartisan Campaign Reform Act BCRA U.S.C. 30104(f), the ground that
named State two sitting U.S. Senators and
directed the audience contact their offices
express their support for proposed legislation. Indep.
Amici state that counsel for party this case
authored this brief whole part; and person entity,
other than Amici and their counsel, made monetary
contribution intended fund the preparation and submission this brief. All parties were asked and consented the filing this Amici Curiae brief.
Inst. Fed. Election Comm No. 14-CV-1500, 2016 6560396 (D.D.C. Nov. 2016). Because one
the named Senators was also candidate for
reelection, the panel determined that the issue
advertisement
constituted
electioneering
communication defined U.S.C.
30104(f)(3)(i). The Court reached this conclusion
even though the advertisement made reference
the Senator candidacy, did not advocate the
election defeat the Senator (expressly
otherwise), and referenced the State other U.S.
Senator, who was not then for reelection.
result this decision, organizations that are not
engaged any express advocacy could subject
the
BCRA
disclosure
requirements.
organization would required report the names
and addresses all donors giving more than $1,000
whenever the organization produced issue
advertisement simply naming elected official
during covered time period.
Amici submit that the district court decision
raises important issues constitutional law, and
that will have substantial adverse effects
nonprofit, 501(c)(3) organizations only concerned
with policy issues, not the outcome elections. The
Court long has recognized that there vital
relationship between freedom associate and
privacy one associations. Amici submit that
organizations engaged issue advocacy play
critical role preserving and facilitating this vital
relationship. allowed stand this decision will
chill and deter speech. set forth below, Amici
know firsthand that disclosure, even the threat
disclosure, may impair the ability organizations particular, conservative organizations
conduct issue advocacy. Accordingly, Amici
respectfully submit that the Court should note
probable jurisdiction and set the case for oral
argument.
ARGUMENT
Given the Potential Infringement First
Amendment Rights and Harm
Informed Society, the Court Has Required Compelling Interest, Subject Exacting
Scrutiny, Justify the Forced Disclosure Donor Records.
The rights free speech and free association are
fundamental and highly prized. Gibson Fla. Legis.
Investigation Comm., 372 U.S. 539, 544 (1963), citing
Nat Ass for Advancement Colored People
Button, 371 U.S. 415, 433 (1963). The Court has
recognized, moreover, that the constitutional
guarantee free speech serves significant societal
interests wholly apart from the speaker interest
self-expression. Pac. Gas Elec. Co. Pub.
Utilities Comm California, 475 U.S. (1986),
citing First National Bank Boston Bellotti, 435
U.S. 765, 776 (1978). Freedom discussion,
would fulfill its historic function this nation, must
embrace all issues about which information
needed appropriate enable the members
society cope with the exigencies their period.
Thornhill Alabama, 310 U.S. 88, 102 (1940).
protecting those who wish enter the marketplace ideas from government attack, the First
Amendment protects the public interest
receiving information. Pac. Gas Elec. Co., 475
U.S. (citations omitted).
Organizations play critical role this process preserving the right associate and
facilitating speech, popular otherwise. Effective
advocacy both public and private points view,
particularly controversial ones, undeniably
enhanced group association. NAACP Alabama,
357 U.S. 449, 460 (1958) (citations omitted). These
groups facilitate the speech many individual
Americans, who have associated common cause,
giving the leadership the [organization] the right speak their behalf. Citizens United Fed.
Election Commn, 558 U.S. 310, 392 (2010) (Scalia,
J., dissenting).
Because First Amendment freedoms need
breathing space survive, government may
regulate the area only with narrow specificity.
Button, 371 U.S. 433 (1963), citing Cantwell
Connecticut, 310 U.S. 296, 311 (1940). particular, warrant public disclosure organization
members, government actor must demonstrate[] cogent interest obtaining and making public
the membership lists these organizations
justify the substantial abridgment associational
freedom which such disclosures will effect. Bates
City Little Rock, 361 U.S. 516, 524 (1960). Such
significant encroachment upon personal liberty
may only justified showing subordinating
interest which compelling. Id. (citations omitted).
Since NAACP Alabama have required that the
subordinating interests the State must survive
exacting scrutiny. Buckley Valeo, 424 U.S.
(1976). evaluating the burdens imposed the forced
disclosure donor lists, the Bates Court noted the
harassment and fear community hostility and
economic reprisals that followed public disclosure the membership lists, all which discouraged
new members from joining the organizations and
induced former members withdraw. 361 U.S.
524; see Talley State California, 362 U.S. 60,
(1960) (fear reprisal might deter perfectly
peaceful discussions public matters
importance Even where this repressive effect
was part the result private attitudes and
pressures, was brought bear only after the
exercise governmental power had threatened
force disclosure the members names. Bates, 361
U.S. 524, citing NAACP, 357 U.S. 463.
II.
Amici Have Firsthand Knowledge that
Fear Public Disclosure Donations
and
Consequent
Harassment
Diminishes Individuals Willingness
Donate
Join
Conservative
Organizations.
Amici are both nonpartisan, nonprofit 501(c)(3)
foundations, with conservative orientation
regarding public policy issues. Amici scrupulously
avoid engaging any type electioneering
communications other election advocacy, but
know well the fear harassment and community
hostility and economic reprisals that afflicts
potential donors conservative organizations
regardless whether those organizations are
engaged issue advocacy electioneering. Bates,
361 U.S. 524. consequence, amici are acutely
aware the chilling effect that expanding
compelled,
public
disclosure
tax-exempt
organizations donors may have organizations
activities.
Amici firsthand experience indicates that donors
may materially reduce their support there
greater risk government-ordered disclosure.
begin with, donors and potential donors Amici
care about their privacy, indicated the fact that
they routinely inquire whether their
contributions will remain confidential. Further, both
current and prospective donors routinely express
concerns about possible retaliation for contributing Amici. For example, contributors Judicial
Watch often tell its fundraisers that they expect audited for contributing the organization.
Potential contributors have told the organization
that they would like contribute, but have chosen
not because fear retaliation. Other
contributors choose donate anonymously. And
some contributors choose forego available tax
deductions for their contributions. substantial portion Amici yearly income
comes from donations excess $1,000. Any rule
that potentially deterred such givers would threaten
Amici with significant loss income. Moreover,
charitable and 501(c)(3) foundations almost
invariably receive most their donations from
relatively
small
proportion
their
total
membership. While Judicial Watch receives
relatively wide range contribution amounts each
year, Amici know that most 501(c)(3) organizations
rely few, large contributors. Any rule that
deters larger givers will threaten the continued
viability such institutions.
The fear negative consequences arising from
public disclosure expressed those contemplating
donations conservative organizations are founded recent events. has been widely reported,
monetary support for conservative causes, when
disclosed pursuant campaign finance laws, can
subject individuals and organizations attack and
retaliation. Such targeting has been carried out
governmental and non-governmental sources.
One particularly vivid example the targeting
California citizens who supported Proposition
2008. Proposition which defined marriage
between one man and one woman under California
law, received majority votes the November
2008 election. that time, the traditional view
marriage adopted that law was also the publiclyexpressed view President Obama, who also was
the ballot 2008 and received majority
California voters support.
During the election
campaign, however, opponents Proposition
developed online database the names,
addresses (with maps), and places employment
all individuals who had donated more than $100
support Proposition 8.2 The opponents obtained
this information through the State campaign
finance disclosure laws. During the campaign,
supporters were subjected various kinds
harassment, including intimidation, vandalism, and
loss income employment. This harassment was
the direct result targeting facilitated the
State campaign disclosure laws.
The targeting Proposition supporters even
continued years after the election. April 2014,
Mozilla Chief Executive Officer Brendan Eich
resigned following boycotts, protests, and intense
public scrutiny Eich 2008 financial support for
Proposition 8.3 When Mozilla announced that Eich
would become the company new CEO March
2014 firestorm erupted almost immediately over
Thomas Messner The Price Prop THE HERITAGE
FOUNDATION, (Dec. 31, 2016), https://goo.gl/KV7Dbv.
FAQ
CEO
Resignation,
MOZILLA.ORG,
https://goo.gl/MgyaDg (last visited Dec. 31, 2016).
Eich six-year old $1,000 donation.4 Despite Eich
attempts address his critics concerns, was was
forced resign two weeks later. The Mozilla affair
illustrates
that
even
where
positions
controversial issues enjoy majority support, public
disclosure donations may affect individual
personal and professional interests. For Mozilla
CEO, led him resign and leave from the
company co-founded sixteen years earlier. similar kind story occurred during the 2012
general election campaign. After Idaho businessman
Frank VanderSloot contributed PAC supporting
Mitt Romney, and seven other private
contributors were publicly identified name and
occupation. Within days, investigator for
opposition research firm was researching Mr.
VanderSloot divorce records. subsequently was
audited the IRS for the first time his career.
And within days being notified the audit, Mr.
VanderSloot was informed the Department
Labor that would auditing his employees under federal visa program for temporary agriculture
workers.5
More recently, shortly after the Court ruling
Citizens United Federal Election Com 558 U.S.
310 (2010), staff inside the Internal Revenue Service
began targeting applications for tax-exempt status
Alistair Barr, Mozilla CEO Brendan Eich Steps Down,
WALL ST. J., April 2014, https://goo.gl/6cevCo.
Kimberley Strassel, Obama Enemies List Part II,
WALL ST. J., July 19, 2012, https://goo.gl/WtBiq3.
filed conservative non-profit groups.6 What
followed was one the most troubling instances
recent memory public officials using government
resources try silence political opponents.
After widespread reports and Congressional
inquiries
regarding
selective
targeting
conservative organizations, the U.S. Treasury
Inspector General for Tax Administration TIGTA
audited the unit responsible for processing
applications organizations seeking tax-exempt
status under I.R.C. 501(c)(3) and 501(c)(4). Id. TIGTA report the matter showed that there
had been deliberate, systematic targeting
conservative groups. U.S. Treas. Insp. Gen. for Tax
Admin., Ref. No. 2013-10-053, Inappropriate Criteria
Were Used Identify Tax-Exempt Applications for
Review (May 14, 2013). The audit focused
allegations that the IRS targeted specific groups,
delayed the processing certain applications, and
requested unnecessary information from certain
applicants. Id. TIGTA found that the IRS unit
responsible for processing tax-exempt applications
used inappropriate criteria for selecting and
referring applications for additional scrutiny the
IRS. Id. Initially, IRS staff conducted hoc
application reviews looking for conservative terms
such Tea Party, Patriots, 9/12, the
People, Take Back the Country. Id. few
weeks later, the IRS systematized this process,
developing formal the Look Out list
buzzwords staff should search for identify
Judicial Watch, ABCs IRS Mess; Justice Dept.
Tainted Too (last visited Dec. 29, 2016), https://goo.gl/rtDGoS.
conservative organizations. Id. Applications
containing these buzzwords were referred for further
scrutiny. Id. Further, the IRS ordered additional
scrutiny for applications based political views
such concern with issues government spending,
government debt, taxes, that were generally
critical with how the country was being run. Id.
and 35. result, conservative organizations seeking
tax exempt status experienced delays receiving
final IRS determinations ranging from more than
two years over 1,000 days. Id. 11, 14. These
delays caused some applicants withdraw their
applications abandon their constitutionally
protected activities. Id. Many targeted applicants
were subjected highly-invasive requests for
additional information. Id. 18-20. TIGTA
determined that several the questions sent
targeted groups were unnecessary and may have
caused donors withhold donations grants. Id.
18-20. Among its several invasive, irrelevant
requests, the IRS sought the names the
applicant donors. Id. 20.
TIGTA findings have been reported widely.
However, the IRS has not shown the type
contrition one would expect from Executive
Agency found targeting citizens based their
political views. U.S. NorCal Tea Party Patriots (In United States), 817 F.3d 953, 955 (6th Cir. 2016);
True the Vote, Inc. Internal Revenue Serv., 831
F.3d 551, 561 (D.C. Cir. 2016). Newly discovered
information shows that the IRS targeting was even
more pervasive than TIGTA reported.7
The victims this targeting have come forward
speak publicly about their ordeals. Catherine
Engelbrecht testified about how the IRS, and
possibly several other federal agencies, targeted her,
her family, and their business after her organization
filed application for tax-exempt status. The IRS
Targeting Investigation: What the Administration
Doing? Hearing Before Subcomm. Econ. Growth,
Job Creation and Regulatory Affairs the Comm Oversight and Govt Reform, 113th Cong. 2-3
(Feb. 2014) (statement Catherine Engelbrecht,
Founder and President True the Vote and King
Street Patriots). Ms. Engelbrecht, former client
Judicial Watch, testified that she and her family
experienced different instances audit inquiry
into their affairs various federal agencies.8 Id.
Previously, neither Ms. Engelbrecht nor her family
business had ever experienced similar audits
inquiries federal agencies. Leaders other
conservative organizations have testified about the
See Notice Compliance With Courts Order, Ex. 110, NorCal Tea Party Patriots, al. I.R.S., al., No. 1:13CV-341 (S.D. Ohio May 24, 2016), ECF No. 265-2.
These included IRS audits her personal and business
tax
returns,
unscheduled
OSHA
inspections,
two
comprehensive audits the ATF back back years, and
several calls the FBI requesting access her
organizations membership information facilitate unspecified
domestic terrorism investigations. Id.
scrutiny they received after submitting applications
for tax-exempt status.9
Amicus Judicial Watch has itself been the target IRS scrutiny its tax-exempt status the
Clinton administration 1998.10 Documents
obtained several years later through the Freedom
Information Act confirmed that the IRS targeted
Judicial Watch within week receiving
information from the White House. Id. During the
audit, the IRS requested the names and addresses
Judicial Watch directors and its relationship with
political parties and political groups. Id.
Nor such abusive political targeting the
Executive Branch restricted one party. 1973,
the IRS Commissioner needed intervene
prevent the Nixon administration from using IRS
staff target individuals hostile the
Becky Gerritson described how her organization received
request for additional information from the IRS response
its application for tax-exempt status. The IRS Targeting
Investigation: What the Administration Doing? Hearing
Before Subcomm. Econ. Growth, Job Creation and
Regulatory Affairs the Comm Oversight and Govt
Reform, 113th Cong. 2-3 (Feb. 2014) (statement Becky
Gerritson, Founder and President, Wetumpka TEA Party, Inc).
Among other things, the IRS requested detailed information
about her organization donors. Id.
Tom Fitton, THE CORRUPTION CHRONICLES (Simon
Schuster, 2014).
Administration and the Vietnam War.11 Just
TIGTA reported 2013, IRS staff 1973 was using
the available federal machinery target political
opposition the government.12
Donors are often aware instances political
targeting harassment, shown the fact that
they have raised the foregoing examples with Amici. Amici experience, any rule that expands the
definition electioneering communication
require additional disclosure donor data has the
real potential chill speech non-electioneering
contexts. The intimidating effect the district
court ruling only enhanced the fact that the
rule approves apparently arbitrary and
unrelated any true intention favor one
candidate over another.
Naturally,
expanding
the
definition
electioneering communication for disclosure
purposes does not affect only donors. also
influences Amici issue advocacy. Because the
possibility compelled disclosure, even remote,
affects the willingness donors give, Amici must
accommodate their donors concerns. What this
means, practical matter, that Amici must
much more circumspect mentioning the names
Patricia Sullivan, IRS Chief Successfully Fought Efforts
Use Tax Audits Against Nixon Foes, WASH. POST, Feb. 2009,
https://goo.gl/XYJxnd.
Don Edwards, WATERGATE HEARINGS, BOOK 31, 33. Book
VIII, Vol. Alleged Efforts White House Officials Acquire
Information from the Internal Revenue Service and Direct
Certain IRS Activities (1974), https://goo.gl/rnsjPk.
both candidates for public office and elected public
officials their issue advocacy. This circumspection
directly affects Amici current plans educate the
public the issues about which Amici are
concerned through broadcast and other media. short, the District Court ruling makes Amici
wary about how they fulfill their public interest
missions. Other issue advocacy groups would well
advised follow suit. The resultant public
atmosphere antithetical true [f]reedom
discussion, which must embrace all issues about
which information needed. Thornhill, 310 U.S.
102.
CONCLUSION
For the foregoing reasons, Amici respectfully
request that the Court note probable jurisdiction and
set this matter for oral argument.
Respectfully submitted, Russell Nobile
WISE CARTER CHILD
Caraway, P.A.
1105 30th Avenue
Gulfport, 39501
(228) 385-9390
trn@wisecarter.com
Robert Popper
Paul Orfanedes
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street,
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
January 2017