Lawyers make mistakes. Sarcastic readers may retort that merely attending law school proves the point, and I agree, but I digress. Recently, in our brief for the Tenth Circuit Court of Appeals in the Free Speech v. Federal Election Commission (FEC) case, I mis-cited a previous case, stating it was a decision of the D.C. Circuit Court of Appeals when it was instead a decision of a district court in D.C. (The case is FEC v. GOPAC.) Despite the fact that the principle of this case that we rely on in our argument has endured in the D.C. Circuit (and elsewhere), district court decisions don’t have the same persuasive oomph of court of appeals decisions, so opposing counsel at the FEC got in a worthwhile zing by pointing out my error in their brief.
We are certainly all fallible (feel free to insert another lawyer joke here). That said, my error did not portray glaring irony, which is the subject of today’s post. Another error in our case once again reveals that proponents of campaign finance disclosure often trip over themselves in support of complex regulatory regimes aimed at exposing the political speech of every grassroots group across our fair land.
A few days ago, the dynamic duo of the Campaign Legal Center (CLC) and Democracy 21 (D21) filed a friend-of-the-court brief in the Free Speech case in support of the FEC. In the brief, they argue, among other things:
While [political committee, or] PAC requirements and electioneering communications requirements are not identical, compare 2 U.S.C. §§ 432, 433, 434(a)(4) and 2 U.S.C. § 434(f), this is a distinction without a difference. Both “regimes” consist only of disclosure obligations, and as such, are subject to “‘exacting scrutiny,’ which requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.’” Citizens United, 130 S. Ct. at 914, quoting Buckley, 424 U.S. at 64, 66 (internal citations omitted).
In short: c’mon, it’s just disclosure. On one hand (electioneering communications), a group must file a single report with the FEC after spending $10,000 or more on a broadcast advertisement that mentions a political candidate and airs within 60 days of the general election (or 30 days of the primary). (There are other factors that narrow the definition of an electioneering communication even further, but that’s the gist of it.) On the other hand (PAC status), speakers must file regular reports with the FEC after spending only $1,000 on ads the FEC decides are “express advocacy” (it’s impossible to predict what they’ll think in advance, and expensive and time-consuming to get an advisory opinion), and must continue filing these reports until the FEC decides it’s okay to stop.
Don’t get me wrong: I believe electioneering communications disclosure is bad enough for grassroots groups, but it’s a far cry from the “disclosure” required by PAC status. On this, we and our clients will simply have to agree to disagree with CLC and D21. Unfortunately for these reformers, in their haste to support the regulatory morass of the Federal Election Campaign Act, they forgot to follow all of the requirements of the Federal Rules of Appellate Procedure (FRAP):
Because CLC and D21 forgot to include an FRAP 29(c)(5) statement in their brief, they had to re-file it with the statement included. The rule requires the statement to indicate whether main counsel in the case helped author the brief, whether any party or main counsel in the case helped pay for the brief, and whether any other group besides those listed helped pay for the brief.
In short: the reformers forgot their disclosure statement. C’mon, guys!
It’s ironic, but, unlike the CLC’s last trip-up, it’s not very funny. If trained attorneys make occasional mistakes over simple requirements (FRAP’s friend-of-the-court rules are all of two pages), it should be no surprise that grassroots speakers frequently trip up over complex regulations. This is the burden at issue in our case. Although the government is no longer banning political speech thanks to the Citizens United case, its red tape serves as just an effective muzzle, and courts should scrutinize these regulations as closely as outright bans.
As burdensome as complex regulations are on political speech, the penalties for noncompliance are even worse. Unlike CLC and D21 at the Tenth Circuit, if our clients did not properly “disclose” to the FEC, they would not get a do-over; they would be subject to civil and possibly criminal penalties just for engaging in the democratic process.
It’s doubly ironic, then, that “Democracy 21” sides with the FEC.