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Feb 23, 2011 -- Supreme Court Declines to Review Important Ninth Circuit Decision Upholding Washington State Ballot Measure Disclosure Laws

 The U.S. Supreme Court on Tuesday denied certiorari in Human Life of Washington v. Brumsickle, the latest in a string of challenges to disclosure laws across the country to appeal to the High Court.  The denial leaves standing the well-reasoned and important decision of the U.S. Court of Appeals for the Ninth Circuit upholding Washington state disclosure laws that require ballot measure advocacy groups like Human Life of Washington to register and report their financial activities as “political committees.”

 “The Supreme Court’s denial of certiorari in Human Life of Washington is a strong blow to anti-disclosure efforts nationwide and signals a sentiment among a majority of the Supreme Court’s justices that the Ninth Circuit, and other courts following it, are correctly applying Supreme Court precedent in upholding effective campaign finance disclosure laws,” said Campaign Legal Center Executive Director J. Gerald Hebert.

 The Campaign Legal Center filed an amicus brief in the Ninth Circuit supporting the State of Washington’s defense of its disclosure laws and applauds the hard work of the state’s Attorney General and his staff.

 Both the Ninth Circuit and the U.S. District Court for the Western District of Washington had rejected arguments made by attorney James Bopp, on behalf of Human Life of Washington, that Washington state laws violated his client’s First Amendment rights.  Bopp has brought other lawsuits around the United States making similar arguments, with courts rejecting Bopp’s arguments and citing the Ninth Circuit’s decision in Human Life of Washington.  For example, federal district courts in Iowa Right to Life Committee, Inc. v. Smithson and Yamada v. Kuramoto cited Human Life of Washington in rejecting Bopp’s motions to enjoin enforcement of disclosure laws in Iowa and Hawaii, respectively.

 The Ninth Circuit began its decision in Human Life of Washington by quoting the U.S. Supreme Court’s 1978 decision in First National Bank v. Bellotti: “[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.  They may consider, in making their judgment, the source and credibility of the advocate.”  The Ninth Circuit then went on to cite the Supreme Court’s 2010 decision in Citizens United, in which the Court upheld federal disclosure requirements by an 8-1 vote, for the proposition that government “may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”

 Specifically, the Supreme Court’s decision not to revisit the Ninth Circuit’s decision in Human Life of Washington leaves standing two very important pronouncements of law.

 First, applying 30+ years of Supreme Court precedent, the Ninth Circuit held that disclosure laws such as those at issue in Human Life of Washington, are subject to “exacting scrutiny”—not the “strict scrutiny” that Bopp sought—and are constitutional if they are “substantially related to a sufficiently important governmental interest.”  The Ninth Circuit concluded that Washington’s disclosure laws, like the many disclosure laws upheld by the Supreme Court over the past three decades, are constitutional because they are substantially related to the “vital” government interest of providing information to the electorate.  Importantly, the court noted that “these considerations ‘apply just as forcefully, if not more so, for voter-decided ballot measures.’”

 Second, again citing the 2010 Supreme Court decision in Citizens United, the Ninth Circuit rejected Bopp’s argument that only “express advocacy” can be subject to disclosure requirements and that Washington’s laws were unconstitutionally vague and overbroad because they encompassed so-called “issue advocacy.”  The Ninth Circuit upheld Washington’s disclosure law defining “independent expenditure” in terms of money spent “in support of or opposition to” a candidate or ballot initiative, as well as its disclosure law defining “political advertising” as mass communications “used for the purpose of appealing, directly or indirectly,” for support in any election campaign.  The Ninth Circuit, citing the Supreme Court’s decision in Citizens United, explained:

 [E]ven if Human Life’s proposed communications constitute unadulterated issue advocacy, its argument has been foreclosed by the Supreme Court’s opinion in Citizens United.  Considering the possibility of a bright-line rule distinguishing express and issue advocacy, the Court stated, “[W]e reject Citizen United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.”

 The Supreme Court’s denial of certiorari in Human Life of Washington gives the green light to advocates of effective campaign finance disclosure to aggressively defend existing disclosure laws under challenge by Bopp and other opponents of transparency in government, and to legislators to enact stronger disclosure laws to shine light on the recent flood of corporate dollars into U.S. elections that are being laundered through intermediaries like the U.S. Chamber of Commerce and increasingly-prevalent fly-by-night 501(c)(4) organizations formed solely for the purpose of hiding the identities of special interests trying to buy our elections. 

 
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