U.S. Congress: Campaign Legal Center & Democracy 21 Document Repeated Rejection by Courts of Attempted Legal Assault on Disclosure Laws in Letter to Members of Congress

In a letter sent today to members of the Senate and House, the Campaign Legal Center and Democracy 21 challenged the claims by disclosure opponents that campaign finance disclosure laws are unconstitutional violations of First Amendment free speech rights.

The letter documented the fact that since the Citizens United decision upholding disclosure laws, courts throughout the country repeatedly have upheld the constitutionality of laws requiring disclosure by outside groups that make expenditures in candidate elections.

“Despite a concerted disinformation campaign by disclosure opponents, there is simply no way to get around the fact that the U.S. Supreme Court has repeatedly upheld disclosure laws by an overwhelming margin,” said Campaign Legal Center President Trevor Potter. “No number of hostile quotes and columns from opponents can obscure the fact that the courts--most recently the Supreme Court in the Citizens United case--have recognized the importance to voters and to our democracy of transparency of the funding of campaign advertising. The courts have held that required disclosure of the sources of money for such campaign ads does not violate the first amendment. It is important that Members understand the courts’ support of disclosure as Congress considers how to tackle the flood of dark money that is being spent against Republicans and Democrats alike by secret political hit squads seeking to dominate the political system without public accountability.”

"Ever since the Citizens United decision, supporters of allowing secret contributions to influence our elections have cloaked their opposition to disclosure in claims of 'First Amendment free speech' rights," said Democracy 21 President Fred Wertheimer. “These claims have no validity and were rejected by the Supreme Court in the Citizens United decision. Since then the “free speech” claims have been overwhelmingly rejected by federal district courts and courts of appeals in numerous cases which have upheld disclosure laws against a concerted legal assault undertaken to strike them down. The Campaign Legal Center and Democracy 21 have filed amicus briefs defending the disclosure laws in many of these cases and the results represent a major legal success story in the courts for campaign finance disclosure laws."

According to the letter sent today:

In the 2010 Citizens United decision, the Supreme Court by an 8 to 1 vote made crystal clear that campaign finance disclosure requirements for groups making expenditures to influence candidate elections are constitutional and provide citizens with necessary information to make voting decisions.

The letter stated:

The Citizens United case involved disclosure of contributions to and expenditures by a nonprofit corporation that did not have a major purpose to influence elections and that was sponsoring communications that referred to candidates, some of which did not contain “express advocacy” or its functional equivalent.

The Supreme Court in Citizens United flatly rejected claims that these disclosure requirements violate First Amendment free speech rights. In doing so, the Court cited its decision in Buckley v. Valeo (1976) which upheld campaign finance disclosure laws on the grounds that they deter corruption and provide voters with information to aid them in evaluating candidates.

The letter said:

Despite the Supreme Court’s 35-year record of consistently upholding campaign finance disclosure laws, opponents have been conducting a nationwide legal assault on the constitutionality of such laws.

Opponents argue that disclosure requirements for groups that make expenditures to influence elections violate First Amendment free speech rights and subject donors to harassment and reprisals. In so doing, they are presenting arguments that the Supreme Court has repeatedly rejected in upholding disclosure requirements.

The letter documented that federal district courts and courts of appeal throughout the country repeatedly have upheld the constitutionality of disclosure laws applicable to outside groups that spend money in candidate elections.

According to the letter:

Since the Citizens United decision, strong disclosure laws applicable to groups making independent expenditures in state candidate elections have been upheld as constitutional in more than 20 cases decided by federal district courts and courts of appeal. This has included decisions by the First, Fourth, Seventh, Ninth and Eleventh U.S. Circuit Courts of Appeal.

The Campaign Legal Center and Democracy 21 have filed amicus briefs in many of these cases defending the disclosure laws.

Only a handful of cases have run counter to this trend and those decisions have mostly been concerned with ballot measure disclosure laws which involve different considerations and where legal precedent is somewhat less clear.

According to the letter:

The Campaign Legal Center and Democracy 21 are aware of only two cases since the Citizens United decision in which laws requiring the disclosure by outside spending groups in candidate elections have been invalidated.

The Tenth Circuit Court of Appeals is the principal outlier and has taken the position that disclosure requirements can extend only to communications containing “express advocacy” and the functional equivalent of “express advocacy,” and to political committees whose major purpose was to influence elections.

In so doing, however, the Tenth Circuit has misinterpreted the Supreme Court ruling in Citizens United. The Supreme Court upheld disclosure requirements for organizations that did not have a major purpose to influence elections and that did not apply to “express advocacy” communications or their functional equivalent.

The letter further stated:

Beyond the more than 20 decisions upholding disclosure laws without qualification, in four additional cases, the courts have upheld basic disclosure requirements while rejecting a narrow aspect of such laws.

For example, the Fourth Circuit upheld most aspects of West Virginia’s disclosure law but found that the state “electioneering communications” disclosure requirement could not include print media, a form of media that is not covered by the Citizens United decision. Similarly, the Eighth Circuit Court of Appeals upheld the state laws in Minnesota and Iowa requiring disclosure by outside spending groups in candidate elections, but rejected some provisions of these laws that extended beyond the parameters of federal disclosure laws.

Overall, however, federal courts at the district, court of appeals and Supreme Court level have overwhelmingly upheld the constitutionality of disclosure laws applicable to groups making independent expenditures in candidate elections.

The letter also noted that “some disclosure opponents also have been creating the misleading impression that courts around the country are rejecting disclosure laws.” According to the letter:

For example, a recent column by George Will (October 30, 2013), said “Brick by brick, judges are dismantling the wall of separation that legislators have built between political activity and the First Amendment’s protections of free speech and association.”

Mr. Will cited for this proposition cases in Mississippi and Alabama that are still working their way through the appeals process. Notably, both cases involve spending in ballot measure campaigns, not candidate campaigns.

Will’s “brick by brick” analysis, furthermore, is wrong and ignores the fact that since the Citizens United decision, the vast majority of federal district courts and courts of appeal throughout the country have been followingCitizens United’s lead to uphold the constitutionality of laws requiring disclosure by outside groups that spend money in candidate elections.

The letter stated:

The reality is that in the nearly three years since the Citizens Uniteddecision, courts throughout the country have repeatedly rejected arguments that disclosure laws applicable to outside groups making expenditures in candidate elections violate First Amendment free speech rights.

Furthermore, although critics often claim that disclosure triggers donor harassment, we are aware of no court decision post-Citizens United that has found that any alleged instances of donor harassment warranted an exemption from the applicable disclosure statute.

The letter concluded:

The repeated rulings by the courts that disclosure requirements are constitutional represent a major legal success story in the courts for campaign finance disclosure laws

The nation, however, is still left with gaping loopholes in federal disclosure laws that have resulted in hundreds of millions of dollars in secret contributions being spent to influence federal elections. These problems must be solved by enacting new disclosure requirements for outside spending groups and by ensuring that existing laws applicable to disclosure are implemented by proper regulations.

We urge you and your colleagues to find a bipartisan path to legislation that closes the disclosure loopholes that are allowing hundreds of millions of dollars of secret contributions to be spent against candidates of both parties. Effective new disclosure requirements are essential to provide voters with the information they need, as the Supreme Court said inCitizens United, to make “informed choices in the political marketplace.”

Federal courts at all levels have made it clear that disclosure laws for outside groups making expenditures in candidate elections are constitutional and do not violate First Amendment free speech rights.

To read the full letter, click here.