First Circuit: Secret Campaign Money at Odds With "Informed Decisions"

Last week, the United States Court of Appeals for the First Circuit issued a pair of decisions affirming campaign finance disclosure provisions in Maine and Rhode Island. Though the opinions upholding disclosure were not unexpected, I let out a sigh of relief when I read them — and not just because Demos submitted an amicus curiae brief on behalf of Maine Citizens for Clean Elections. 

In the wake of Citizens United, we are living in a world of ever greater amounts of private money in our political system. The majority of Americans want a system that does not allow concentrated wealth to dominate but rather that honors the equal voices of all. The First Circuit rightly recognized the need for the citizenry to have the tools to assess the credibility and motives behind political messages received during a political campaign.

As anyone who follows campaign finance issues knows, the last few years -- since 2006, when Justice Samuel Alito replaced Justice Sandra Day O’Connor on the Supreme Court -- have not been kind to those of us who want to reduce the role of concentrated wealth in the political system. The string of opinions that the Court has issued in this time has chipped away at, struck down, or limited many of the tools advocates have employed to raise up the voice of every-day people.

In Randall v. Sorrell, the Supreme Court struck down Vermont’s law limiting the amount of money a campaign could spend during an election and also its contribution limits law, holding that the contribution limits --scaled to the size of Vermont campaigns-- were too low.

In Wisconsin Right to Life v. FEC, the Court decided that Congress could not ban the use of corporate treasury funds for political advertisements in the 60 days before an election if the paid-for advertisements could reasonably be interpreted as anything other than an ad urging the support or defeat of a candidate.

In Davis v. FEC, the Court struck down Congress’ asymmetrical contribution limits, enacted to give assistance to candidates facing wealthy self-funded candidates.

In Citizens United v. FEC, the Court overturned longstanding precedent that prevented corporations from using market-generated general treasury money (rather than money specifically donated by corporation-related individuals) for independent political expenditures, i.e. political purposes not coordinated with a candidate’s campaign. 

In Arizona Free Enterprise Club v. FEC, the Court struck down a provision of Arizona’s public financing system that allowed the state to scale the amount of money provided to a participating candidate based on the competitiveness of the election.

Yet, through all this bad news, disclosure has remained intact. Disclosure laws require political candidates and organizations to report how they raise and spend their money, including the identity of donors and recipients. Indeed, in earlier years, disclosure was extolled even by those who challenged other campaign finance regulations.

Nevertheless, and perhaps emboldened by the vigor with which the current Supreme Court has taken an ax to the regulation of big money in politics, those who challenge campaign finance laws have now decided to take on disclosure as well. Thus, in addition to Maine and Rhode Island, lawsuits challenging state disclosure laws have been brought in Florida and New York.

Given the coordinated campaign to eliminate all regulation of money in politics, it was therefore a great relief (though no surprise) that the First Circuit continued to recognize the important role played by campaign finance disclosure regulations in informing the citizenry to make political choices. As the First Circuit stated, disclosure laws “do not directly limit speech.” 

Thankfully, the First Circuit also explained in quite a bit of detail why it is so important for the citizenry to have information about the source of political money and how it is to be spent. This will be very useful if these cases ever get to the Supreme Court. 

In an age characterized by the rapid multiplication of media outlets and the rise of internet reporting, the 'marketplace of ideas' has become flooded with a profusion of information and political messages. Citizens rely ever more on a message's source as a proxy for reliability and a barometer of political spin. Disclosing the identity and constituency of a speaker engaged in political speech thus 'enables the electorate to make informed decisions and give proper weight to different speakers and messages. . . Additionally, in the case of corporate or organizational speakers, disclosure allows shareholders and members to 'hold them accountable for their positions.' . . . In short, 'the First Amendment protects political speech; and disclosure permits citizens and shareholders to react to that speech in a proper way.'

Happily, the district court in Florida appears to see the issue similarly to the First Circuit.  The court in New York dismissed the case on jurisdictional grounds and an appeal to the Second Circuit is pending.