Academic journal article Harvard Law Review

Constitutional Law - First Amendment - Ninth Circuit Holds Montana Election Contribution Disclosure Requirements Unconstitutional as Applied to De Minimis Contributions

Academic journal article Harvard Law Review

Constitutional Law - First Amendment - Ninth Circuit Holds Montana Election Contribution Disclosure Requirements Unconstitutional as Applied to De Minimis Contributions

Article excerpt

CONSTITUTIONAL LAW--FIRST AMENDMENT--NINTH CIRCUIT HOLDS MONTANA ELECTION CONTRIBUTION DISCLOSURE REQUIREMENTS UNCONSTITUTIONAL AS APPLIED TO DE MINIMIS CONTRIBUTIONS.--Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021 (9th Cir. 2009).

As political campaigns have become more expensive (1) and sophisticated, (2) Congress has increasingly regulated them, (3) yet the Supreme Court has declared many aspects of that regulation unconstitutional. (4) Recently, in Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, (5) the Ninth Circuit continued this deregulatory trend by holding that Montana's election contribution disclosure requirements were unconstitutional as applied to de minimis campaign expenditures. (6) Though the bureaucratic disclosure requirements of the regulation at issue may chill speech, an effect that the court correctly recognized, (7) another feature of the regulation may chill speech even more: its third-party enforcement mechanism. Because the regulation allows third parties to bring complaints of campaign rulebreaking, (8) enforcement against minor parties may spring from questionable motives, result in disproportionate burdens, and ultimately militate against the public interest. Legislatures crafting campaign law and judges applying it should be cognizant of these difficulties.

In the spring of 2004, supporters of Constitutional Initiative No. 96 (CI-96), which would amend the Montana Constitution to define marriage as between one man and one woman, sought the signatures necessary to place the initiative on the November ballot. (9) Wishing to help, the pastor of the Canyon Ferry Road Baptist Church, Berthold Gotlieb Stumberg III, held a Sunday evening service focused on the issue of marriage. (10) To prepare for the service, Stumberg placed free public service announcements on radio stations encouraging attendance. He also allowed a member of his congregation to use her own paper and the church's copier to make copies of the CI-96 petition and place the copies in the church foyer. (11) At the Sunday evening event, the church aired a simulcast titled The Battle for Marriage, (12) after which Stumberg spoke briefly in support of marriage as between one man and one woman and encouraged attendees to sign the CI-96 petitions in the church's foyer. (13) Over the next several weeks, ninety-two church members and six others signed the petition. (14)

One of the Sunday attendees was an employee of the Montana Human Rights Network (15) charged with monitoring the event. His report of the evening service came to Robert Hill, the political leader of the opponents of CI-96. (16) Hill filed a complaint against the church with Montana's Commission of Political Practices. (17) After investigating, the Commission concluded that the church's activities made the church an incidental political committee, (18) which required it to disclose certain donor information. (19)

The church sought declaratory relief and nominal damages from the Commission in Montana's federal district court. (20) The church argued that the compliance requirements chilled its speech; violated its rights of free speech, free exercise of religion, and freedom of association; and were vague and overbroad. (21) The district court granted summary judgment to the Commission. (22) The court rejected the church's contention that Montana's regulation chilled the church's speech, holding instead that the state's "reporting requirements serve a compelling state interest [of providing information to voters] and are narrowly tailored to achieve that interest." (23) The court rejected the church's free exercise claim on the same grounds. (24) The court also rejected the church's freedom of association claim, reasoning that the recordkeeping and reporting burdens placed on incidental political committees were not severe. (25) Finally, the court rejected the church's vagueness claim, finding the disclosure regulation at issue provided "fair notice . …

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