Citing Obama IRS Abuses, Judicial Watch and Allied Educational Foundation File Amici Curiae Opposing Federal Attempt to Force Public Disclosure of Nonprofit Donors

(Washington, DC) – Judicial Watch announced today it joined with the Allied Educational Foundation (AEF) in filing an amici curiae brief with the U.S. Supreme Court arguing against a lower court’s decision requiring the Independence Institute to report the names and addresses of donors after the organization ran an advertisement the Federal Election Commission (FEC) deemed “electioneering” under the Bipartisan Campaign Reform Act (Independence Inst. v. Federal Election Commission (No. 16-743)).

Judicial Watch and AEF argue that the forced disclosure of supporter names will “chill and deter speech”:

If allowed to stand this decision will chill and deter speech. As set forth below, Amici know firsthand that disclosure, or even the threat of disclosure, may impair the ability of organizations – in particular, of conservative organizations – to conduct issue advocacy….

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The fear of negative consequences arising from public disclosure expressed by those contemplating donations to conservative organizations are founded on recent events. As has been widely reported, monetary support for conservative causes, when disclosed, can subject individuals and organizations to attack and retaliation.

The amici brief was filed after a three-judge panel in the U.S. District Court for the District of Columbia ruled in favor of the FEC, which had charged the Independence Institute, a 501(c)(3) nonprofit that sponsors in-depth studies of critical social and economic issues, with running a radio ad supporting federal sentencing reform and encouraging citizens to contact their representative, Senator Mark Udall (D-CO).

At the time, Udall was running for re-election.  The FEC deemed the ad an “electioneering communication,” which meant that the organization making it had to report the names and addresses of all donors giving more than $1,000 – simply because it had produced an issue advertisement naming an elected official. The three-judge panel said the ad triggered the disclosure requirements under BRCA, on the grounds that the ad directed the audience to contact their Senators to express support for proposed legislation.

In their amici brief, Judicial Watch and AEF strongly countered the FEC’s charge and subsequent District Court ruling designating the material an “electioneering communication”:

The Court reached this conclusion even though the advertisement made no reference to the Senator’s candidacy, did not advocate the election or defeat of the Senator (expressly or otherwise), and referenced the State’s other U.S. Senator, who was not then up for reelection. As a result of this decision, organizations that are not engaged in any express advocacy could be subject to the BCRA’s disclosure requirements….

Amici submit that the district court’s decision raises important issues of constitutional law, and that it will have substantial adverse effects on nonprofit, 501(c)(3) organizations only concerned with policy issues, not the outcome of elections.

Citing their own “firsthand knowledge” concerning the harassment of conservative contributors, Judicial Watch and AEF specifically pointed to the recent activities of the IRS in its targeting of conservative organizations applying for tax-exempt status:

[S]taff inside the Internal Revenue Service began targeting applications for tax-exempt status filed by conservative non-profit groups. What followed was one of the most troubling instances in recent memory of public officials using government resources to try to silence political opponents.

After widespread reports and Congressional inquiries regarding selective targeting of conservative organizations, the U.S. Treasury Inspector General for Tax Administration (“TIGTA”) audited the unit responsible for processing applications by organizations seeking tax-exempt status under I.R.C. §§ 501(c)(3) and 501(c)(4). TIGTA’s report on the matter showed that there had been a deliberate, systematic targeting of conservative groups.

“To be clear, Congress can’t pass a law that trumps the First Amendment,” said Judicial Watch President Tom Fitton.  “Politicians who control government want to suppress Americans from even uttering their names around election time.  No matter whether it is the FEC or the IRS, the government should stop trying to intimidate Americans.  This might be good politics but it strikes at the heart of the First Amendment and government accountability.”

The Allied Educational Foundation is a charitable and educational foundation dedicated to improving quality of life through education.  In furtherance of that goal, the Foundation has engaged in a number of projects, which include, but are not limited to, educational and health conferences domestically and abroad.  AEF has frequently partnered with Judicial Watch to fight government and judicial corruption, and to promote a return to ethics and morality in the nation’s public life.

Assisting Judicial Watch is T. Russell Nobile of Wise Carter Child & Caraway, P.A. in Jackson, MS.

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