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Court Backs FEC on Disclosure

A federal judge on Thursday ruled in favor of the Federal Election Commission on the issue of disclosure in a case similar to the landmark Citizens United campaign finance ruling.

The case was brought by Real Truth About Obama, a nonprofit organization that wanted to run ads to educate the public about then-Sen. Barack Obama’s policy positions before the 2008 presidential election.

The FEC said a group spending and raising more than $1,000 would be considered a political action committee and thus would have to file forms disclosing its finances for independent expenditures.

Real Truth About Obama — with legal representation from James Bopp Jr., the lawyer who launched the Citizens United case — challenged the FEC’s authority in court, saying that its ads would be educational and would not use the “magic words” that ask the viewers and listeners to vote for or against a candidate.

The group argued that the government’s definition of political action committees and disclosure requirements could stifle the group’s freedom of speech and thus are unconstitutional.

But U.S. District Judge James R. Spencer denied a preliminary injunction and a summary judgment brought by the nonprofit group.

“Having concluded that Citizens United v. Federal Election Commission has not changed the posture of RTAO’s challenges, the Court grants summary judgment in favor of the FEC and [the Department of Justice] and accordingly denies both of RTAO’s motions,” Spencer wrote in his opinion.

Bopp wanted the court to take the Supreme Court’s Citizens United decision into account when issuing an opinion.

“I am a little stunned,” Bopp said shortly after the decision was released. “If nothing has changed since Citizens United, then the question would be why did the U.S. Supreme Court reverse” a similar decision.

Bopp said Citizens United faced similar obstacles before the Supreme Court overturned the lower court’s decision, allowing corporations, unions and other groups to run campaign ads in the crucial days before an election.

Asked whether he plans to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit and possibly the Supreme Court, Bopp said, “Oh yeah, definitely.“

While Bopp is considering his options, the campaign finance reform community applauded the ruling.

“This is a well-reasoned decision that will aid in the enforcement of federal campaign finance law,” wrote Tara Malloy, an associate counsel at the Campaign Legal Center. “The ruling means that the federal independent expenditure disclosure requirements are not limited to ‘magic words’ express advocacy, and that the FEC is permitted to do a multi-factored analysis of a group’s activities in determining its ‘major purpose.’”

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