By Peg Perl*
Over the last 10 years, the U.S. Supreme Court has repeatedly struck down campaign finance spending bans and contribution limits while keeping disclosure requirements intact. According to the Brennan Center, the Roberts Court has invalidated six different major provisions in federal and state laws and “significantly reshaped the legal landscape dictating how much big money can flow into political races.”
However, even the Citizens United case almost unanimously (8-1) reiterated the constitutionality of the public disclosure requirements when individuals or corporations run advertisements during the final weeks of the campaign season naming a candidate (“electioneering communications”). As Professor Rick Hasen notes in his 2011 analysis of Citizens United, the Court re-emphasized that the voting public has an “informational interest” in knowing who is speaking about candidates even when those ads avoid specific calls to vote for or against the candidate.
Political spending by ideological corporations continues to be the battleground for campaign finance cases as groups seek to push the limits of Citizens United. As the 2016 election looms, the Tenth Circuit Court of Appeals is considering two major challenges to Colorado campaign finance law.
The cases argued last week challenge Colorado state disclosure laws as applied to political ads run by nonprofit corporations: Independence Institute v. Williams and Coalition for Secular Government v. Williams. In both cases the groups objecting to disclosure are represented by the Center for Competitive Politics, founded by former Republican FEC Chair Bradley Smith to roll back campaign finance regulation at the state and federal level.
Although the cases were heard by two different panels, questioning in both centered on the extent to which voters have an “informational interest” that justifies disclosure of the amount raised and spent on the political ads and whether the standards for regulation first articulated in Buckley v. Valeo (1976) still govern our 21st century political landscape.
The Independence Institute challenge picks up where Citizens United left off; the group wanted to run “electioneering communications” in 2014 without filing required disclosure of money raised and spent for those ads. Senior Judge Michael Murphy noted that a 10th Circuit reversal of the District Court opinion upholding the disclosure requirements would create a circuit-split with other post-Citizens United cases. Independence Institute argues that other Circuits erred by not applying language from Buckley and limiting modern disclosure rules to only ads that are “unambiguously campaign related.” The group is also pursuing a companion challenge to be heard later this month at the D.C. Circuit, where the District Court similarly rejected these same arguments against the federal “electioneering communications” disclosures pursuant to Citizens United.
In Coalition for Secular Government, Colorado is appealing a District Court ruling striking down the state “issue committee” registration and reporting requirements which are triggered by spending more than $200 in ballot measure elections. Here, the group raised and spent money to publish a research paper online and buy ads specifically urging voters to vote no on a state initiative. In this argument, the 10th Circuit judges struggled with prior circuit precedent holding that the “informational interest” of voters in ballot measure elections was minimal compared with candidate elections. Newly confirmed Judge Carolyn McHugh suggested a reexamination of that position since all other Circuits have not found such voter interest lacking in ballot measure elections.
Both panels should issue decisions in time to define the scope of information that will be available to Colorado voters in 2016. As a swing-state saturated with political ads, this is not a theoretical concern. The right to vote loses meaning if voters are denied information about the candidates and issues on which they need to decide. This is especially apparent in Colorado where the voters themselves enacted these disclosure requirements as a popular initiative, overwhelmingly stating that they do have an informational interest in knowing what money interests are trying to influence their vote. If the 10th Circuit strikes down those provisions then voters will be left in the dark when making their choices in 2016.
* Peg Perl is Senior Counsel at Colorado Ethics Watch, a nonpartisan nonprofit organization. Ethics Watch filed Amici briefs together with other organizations in the cases discussed above.