Court Rejects Another Disclosure Challenge, Siding with Campaign Legal Center Again

An as applied challenge to the constitutionality of disclosure provisions for groups running “electioneering communications” was turned away by the U.S. District Court for the Eastern District of Virginia in Hispanic Leadership Fund (HLF) v. the Federal Election Commission (FEC). The organization is seeking to air television advertisements criticizing President Obama without complying with “electioneering communication” disclosure requirements. The court upheld the constitutionality of the requirements and rejected HLF’s argument that references to “the White House” and “the Administration” in three of the group’s ads do not constitute unambiguous references to a clearly identified federal candidate—part of the legal definition of “electioneering communication.” The court, however, ruled that two of HLF’s five proposed ads would not meet the definition.

“While we do not agree with the court’s opinion that the use of the President’s recorded voice in an ad would not constitute a reference to a clearly identified candidate to any hearing American with a television set, the court did recognize most of the ads for the bald-faced attempts to evade disclosure that they are,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “It is important to remember that the U.S. Supreme Court has repeatedly and emphatically upheld disclosure laws as vital to the public interest by enabling voters to make informed decisions on Election Day and preventing corruption of elected officials. This case is just one of a string of cases brought by groups attempting to buy influence in Washington while hiding their funders from the public.”

“Electioneering communication” disclosure requirements apply to broadcast ads that refer to a clearly identified candidate in close proximity to an election. The law defines “clearly identified” to include not only ads that explicitly name a candidate, but also ads that make the identity of the candidate “apparent by unambiguous reference.”

The ads proposed by HLF would not mention President Obama by name and instead would use the terms “the White House” and “the Administration” and even audio recordings of the President’s voice. In an attempt to evade the electioneering communication disclosure requirements, HLF argues that its ads do not refer to a clearly identified candidate.

HLF v. FEC was originally filed in federal court in Des Moines, Iowa, but the court dismissed it as an improper venue.

The challenge is based on an advisory opinion request (AOR) filed with the FEC in June by American Future Fund (AFF), asking whether it could run similar ads to those proposed by HLF. The FEC, as it has regularly under the current lineup of commissioners, deadlocked on whether such advertisements constitutedelectioneering communications requiring disclosure reports. The Legal Center, joined by Democracy 21, filed comments arguing that the ads clearly constituted “electioneering communications” subject to disclosure laws.

To read the order of the court, click here. 

To read the court’s memorandum opinion, click here.

To read the brief filed today by the Campaign Legal Center, click here.

To read the comments filed by the Legal Center and Democracy 21, click here.