First Amendment - Campaign Finance Disclosure - Eighth Circuit Grants Injunction against Minnesota Reporting Requirement for Independent Corporate Political Expenditures

Harvard Law Review, April 2013 | Go to article overview

First Amendment - Campaign Finance Disclosure - Eighth Circuit Grants Injunction against Minnesota Reporting Requirement for Independent Corporate Political Expenditures


The Supreme Court reviews the constitutionality of campaign finance disclosure requirements under the intermediate standard known as exacting scrutiny, which requires "a 'substantial relation' between the disclosure requirement and a 'sufficiently important' governmental interest." (1) Recently, in Minnesota Citizens Concerned for Life, Inc. v. Swanson, (2) the Eighth Circuit, sitting en banc, reversed a district court's denial of a preliminary injunction against a Minnesota disclosure law, holding that the burdens the law placed on free speech were likely unconstitutional. (3) The Eighth Circuit questioned whether the Supreme Court intended laws like the one under review to be subject to exacting--rather than strict--scrutiny, but held that the law would fail under either standard. (4) However, by closely examining the legislature's choice of specific disclosure requirements, the Eighth Circuit effectively transformed exacting scrutiny into strict scrutiny--an alchemy facilitated by the Supreme Court's own ambiguous approach to exacting scrutiny. The Supreme Court should resolve this vagueness so that legislators drafting disclosure laws clearly understand the scrutiny that courts will apply in the future.

The provisions at issue in Minnesota Citizens were portions of Minnesota's Campaign Finance and Public Disclosure law (5) and Fair Campaign Practices law. (6) These laws were amended after a ruling by the U.S. District Court for the District of Minnesota that certain provisions were unconstitutional under the Supreme Court's decision in Citizens United v. FEC. (7) The amended statutes prohibited associations from making direct or indirect political contributions, but allowed such organizations to make independent political expenditures by either contributing to an existing political fund or political action committee (PAC), or by registering their own "independent expenditure political fund." (8) The formation of a political fund required naming a treasurer, ensuring that the fund's contents were not commingled with other funds, and filing a report once a year in years without a general election and five times a year in general election years. (9)

Three organizations--Minnesota Citizens Concerned for Life, The Taxpayers League of Minnesota, and Coastal Travel Enterprises--challenged these provisions as unconstitutional. They sought a preliminary injunction, asserting that the laws violated their First and Fourteenth Amendment rights to engage in political speech through both independent expenditures and corporate political contributions. (10) The district court denied their motion for a preliminary injunction on both counts, and a divided panel of the Eighth Circuit affirmed. (11) The Eighth Circuit granted rehearing en banc to review the decision.

Writing for the court, Chief Judge Riley (12) ruled that Minnesota's disclosure laws for independent corporate political expenditures were presumptively unconstitutional, but upheld the ban on corporate political contributions. (13) Chief Judge Riley began by noting that, in order to issue a preliminary injunction against a state statute, Eighth Circuit precedent required that the court find that the plaintiff "is likely to prevail on the merits." (14) Looking initially to the issue of independent expenditures, the court found that Minnesota imposed similar burdens upon corporations and PACs, and viewed this as problematic given Citizens United's characterization of PACs as "burdensome alternatives" to direct corporate speech. (15) The court found the requirement that political funds continue to file reports at state-mandated intervals, even when they did not engage in speech for the given period, particularly troublesome. (16)

Although the court recognized that disclosure laws are subject to exacting scrutiny, (17) it questioned whether the Supreme Court intended to allow legislatures to escape the harsher standard of strict scrutiny for laws like the one at issue--which place "substantial and ongoing burdens" upon organizations seeking to exercise their First Amendment rights--merely by labeling them disclosure laws. …

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