Stop This Insanity, Inc., et al. v. FEC (New litigation)

On July 10, 2012, Stop This Insanity, Inc. (STI), its separate segregated fund (SSF) and potential contributors filed suit in U.S. District Court for the District of Columbia challenging the Commission’s application of the Federal Election Campaign Act (the Act) and its response to the organization’s recent advisory opinion request (AOR).

In its AOR, STI asked if it could set up a new non-contribution account (a “Carey account”) associated with its existing SSF — Stop This Insanity, Inc. Employee Leadership Fund (ELF). ELF would then solicit unlimited contributions for the Carey account from members of its restricted class, as well as other individuals, political committees, corporations and labor organizations. The contributions received would be used to fund independent expenditures. The Commission could not reach a consensus response. See AO 2012-01.

The plaintiffs contend that the Commission’s application of the Act abridges their First Amendment rights of freedom of speech and association. They seek preliminary and permanent injunctive relief and a declaratory judgment that the relevant provisions of the Act are unconstitutional, as applied.

The challenged provisions include the limits on contributions to political committees, the individual biennial contribution limit, the ban on corporate contributions and the prohibition against an SSF soliciting outside its restricted class. See 2 U.S.C. §§ 441a(a)(1)(C), 441a(a)(3), 441b(a) and 441b(b)(4)(A)(i).

According to the court filing, those provisions prohibit ELF from opening a Carey account to solicit and accept contributions exceeding the $5,000 per year cap, and limit the source of those funds to the restricted class — i.e., STI’s executive and administrative personnel and their families. See 2 U.S.C. § 441b(a) and (b)(4).

Constitutional challenge

The plaintiffs’ constitutional challenge is predicated on several recent court decisions that they believe have created precedents allowing STI’s proposed political activity.

They cite the decision in Carey v. FEC (791 F. Supp. 2d 121 (D. D.C. 2011)) as a precedent to allow ELF to open a separate non-contribution account and to solicit and accept unlimited contributions from individuals, political committees, corporations and labor organizations to finance independent expenditures. The plaintiffs also cite the Supreme Court’s decision in Citizens United v. FEC (130 S. Ct. 876 (2010)) and the D.C. Circuit’s decisions in SpeechNow.org v. FEC (599 F.3d 686 D.C. Cir. (2010)) and EMILY’s List v. FEC (581 F.3d 18 D.C. Cir. (2009)) for the proposition that ELF can solicit and receive unlimited contributions from within and outside of its restricted class to a Carey account, since all are constitutionally entitled to spend unlimited sums on independent expenditures themselves and "in conjunction with others."

Resources:

• Stop This Insanity, Inc., et al. v. FEC litigation page