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Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues

sufficient relationship to the important governmental interest of ‘shedding the light of publicity’ on campaign financing.” 24

Similarly, in Citizens United v. FEC, by a vote of 8 to 1, the Court upheld the disclaimer requirement in Section 311 as applied to a movie that Citizens United produced regarding a presidential candidate and the broadcast advertisements it planned to run promoting the movie.25 According to the Court, while they may burden the ability to speak, disclaimer and disclosure requirements “impose no ceiling on campaign-related activities,”26 and “do not prevent anyone from speaking.”27 According to the Court, the disclaimer requirements in Section 311 of BCRA “provid[e] the electorate with information,”28 and “insure that the voters are fully informed” about who is speaking.29 Moreover, they facilitate the ability of a listener or viewer to “evaluate the arguments to which they are being subjected.”30 At a minimum, the Court announced, disclaimers make clear that an advertisement is not financed by a candidate or a political party.

As a result, it appears likely that enactment of increased disclaimer requirements for corporate- financed political advertisements would survive facial challenges to their constitutionality. However, if a disclaimer requirement was so burdensome that it impeded the ability of a corporation to speak—for example, a requirement that a disclaimer comprise an unreasonable amount of time—a court might conclude that it is a violation of a corporation’s free speech rights under Citizens United. 31

Disclosure of Donors to § 501(c) Organizations32

Some have proposed amending FECA or the Internal Revenue Code (IRC) to require the identities of certain donors to § 501(c) organizations be publicly disclosed, either through traditional disclosure mechanisms or the disclaimer provisions discussed above. The organizations described in IRC § 501(c) have federal tax-exempt status. They include § 501(c)(4) social welfare organizations, § 501(c)(5) labor unions, and § 501(c)(6) trade associations. 33

24 Id. at 231 (quoting Buckley, 424 U.S. at 81). Citizens United, slip. op. at 50-57. 26 Id. at 51 (quoting Buckley, 424 U.S. at 64). Id. (quoting McConnell v. FEC, 540 U.S. at 201). Id. (quoting McConnell at 196). Id. at 52-53 (quoting Buckley, 424 U.S. at 76). 30 Id. at 53 (quoting First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 792 n. 32 (1978)). 25 27 28 29

31 Note, as discussed below, if a disclaimer proposal required that donors to a corporation – such as a tax-exempt corporation – be disclosed in a public communication, the Supreme Court’s analysis of the constitutionality of disclosure requirements would apply. According to the Court, such requirements would be unconstitutional as applied to an organization if there were a reasonable probability that its donors would be subject to threats, harassment, or reprisals. See id. at 54-55; National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449, 462-63 (1958).

32 This portion of the report discussing increased disclosure for tax-exempt organizations was written by Erika K. Lunder.

33 For more information on § 501(c) organizations, see CRS Report RL33377, Tax-Exempt Organizations: Political Activity Restrictions and Disclosure Requirements, by Erika K. Lunder. For purposes of this report, it is assumed that § 501(c)(3) organizations would not be subject to the proposed donor disclosure requirements since such organizations are not permitted to engage in campaign intervention under federal tax law.

Congressional Research Service

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