Amicus Brief filed in US Court of Appeals for the First Circuit on behalf of Maine Citizens for Clean Elections

Amicus Brief filed in US Court of Appeals for the First Circuit on behalf of Maine Citizens for Clean Elections

December 21, 2010

Democracy Program Counsel Lisa Danetz and Director Brenda Wright co-authored (with John Brautigam) the following amicus brief.  It was filed in December 2010.

Amicus Brief in National Organization for Marriage v. Walter F. McKee, et al. 

The people of Maine have enacted a series of campaign finance reforms designed to ensure a high degree of transparency and minimize the potential threats of corruption and the appearance of corruption that can result from reliance on private financing. The Maine Legislature ensured transparency in campaign financing by enacting reporting provisions requiring candidates and Political Action Committees (PACs) to provide information regarding their expenditures and donors. See 21-A.M.R.S. §§ 1011 et seq. (2010); 21-A M.R.S. §§ 1051 et seq. The MCEA, a public election funding program adopted by a citizen’s initiative, modernized disclosure and reporting requirements by providing for electronic filing.

The campaign finance laws challenged here, pertaining to PAC registration, attribution of political communications, and disclosure of contributions, donor identities, and campaign expenditures, are constitutional under established precedent. The provisions are not vague because a person “of ordinary intelligence” can understand the conduct regulated. Hill v. Colorado, 530 U.S. 703, 732 (2000).  Nor are the provisions at issue overbroad. Through PAC registration, expenditure disclosure, and attribution requirements, Maine may regulate entities that make substantial campaign-related expenditures, even if such entities’ major purpose is not “promoting, defeating or influencing candidate elections,” see § 1052(5)(A)(5).

Finally, the challenged provisions clearly satisfy the prevailing First Amendment test of “exacting scrutiny” because they serve the important governmental interests in providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and in gathering the data necessary to enforce other campaign finance regulations.

The transparency fostered by the MCEA and Maine’s campaign finance laws creates an environment where public debate is encouraged and accountability is the rule. Where a speaker’s identity is clear to the public, accountability follows – statements can be evaluated in the marketplace of ideas. See McConnell, 540 U.S. at 197. Individuals and organizations that might have concealed or disguised their sponsorship of critical campaign expenditures are instead seen in the light of day. Maine’s voters know the sources of a candidate’s support, whether from the state or private individuals and organizations, and Maine is able to administer its landmark public funding system. To ensure the continued success of Maine’s electoral system and the characteristic rigor and openness of its debate, these provisions should be upheld.

  • Maine’s laws regarding PAC registration, record keeping, disclosure, attribution, and disclaimer are not unconstitutionally vague.
  • A law is not vague where a person of ordinary intelligence has adequate notice of what conduct is prohibited or authorized.
  • The challenged provisions clearly notify the public what is included within their purview.
  • Maine’s provisions regarding PAC registration, record keeping, disclosure, attribution, and disclaimer are not unconstitutionally overbroad. 
  • Maine’s independent expenditure definition and the PAC registration, disclosure, and attribution provisions regulate only those who make substantial campaign-related expenditures. 
  • The National Organization for Marriage (NOM) fails to show any instance in which protected speech is unconstitutionally brought within the purview of Maine’s statute, let alone the substantial amount of overbreadth required to show unconstitutionality. 
  • Nor is the law overbroad as applied to NOM, because NOM’s proposed speech – exhortation to vote for or against a candidate – is well within Maine’s power to regulate.
  • The PAC registration, record keeping, disclosure, attribution, and disclaimer requirements are substantially related to important state interests and thus satisfy First Amendment scrutiny.
  • The challenged provisions serve important governmental interests.
  • The challenged provisions pose little burden and are substantially related to those government interests.