Court Upholds Delaware’s Reply to Citizens United

PHILADELPHIA (CN) - For Delaware electioneers, it's what you say, not who you are.

That's the ruling a three-judge panel with the Third Circuit handed down Thursday against Delaware Safe Families, a nonprofit that planned to distribute an "informational" voter guide in the 2014 election.

The group had sued for an injunction to avoid complying with disclosure requirements for third-party advertisers that Delaware passed in 2013.

The Delaware Elections Disclosure Act compels groups hit a $500 spending trigger to identify donors who contributed more than $100.

Delaware had appealed to the Third Circuit after a federal judge sided with DSF, telling a three-judge panel last year that its law did not conflict with Citizens United v. Federal Election Commission, the landmark campaign-finance decision that the Supreme Court released in 2010.

Though DSF's attorney Allen Dickerson argued that the voter guide was created as a general education tool, Chief Judge Theodore McKee emphasized that the guide's narrow focuses on specific issues is "more than just academic interest and education."

"Otherwise, why not tell voters about the polar bear population?" McKee asked "How does the voter guide not fall smack within the definition?"

McKee also invoked sea mammals when questioning Delaware's attorney, Jonathan Cederbaum of WilmerHale.

"Why can't I contribute to an organization that wants to obliterate the walrus without disclosing to my neighbors that I don't like walruses?" the chief judge asked.

McKee joined a unanimous reversal of the injunction Thursday, with Judge Joseph Greenaway Jr. writing "that it is the conduct of an organization, rather than an organization's status with the Internal Revenue Service, that determines whether it makes communications subject to" the Delaware Elections Disclosure Act.

A $500 spending threshold is reasonable for a small state like Delaware, the court found, adding that the trigger need not be as large national legislation that require groups spending more than $10,000 to disclose donors of $1,000 or more.

Indeed $500 is enough money to purchase a robocall campaign that reaches every household within a congressional district in Delaware.

Rejecting DSF's claim that the law relied on an overly broad definition of "communications media" to be regulated, Judge Greenaway noted Delaware "does not have its own major-network television station and campaign television advertisements on nearby Pennsylvania and Maryland stations are both expensive and 'generally a poor investment, given that they reach primarily non-Delaware voters.'"

"Statewide campaigns use radio advertising, but this 'is typically too expensive for most legislative or local races,'" the ruling continues.

"Had the legislature limited 'electioneering communication' to media not actually utilized in Delaware elections, the disclosure requirements would fail to serve the state's interest in a well-informed electorate thereby resulting in a weaker fit between the two," Greenaway wrote. "Accordingly, we find that the media covered by the act is sufficiently tailored to Delaware's interest."

DSF's voter guide falls short of express advocacy, but its electioneering falls into the law's ambit, the court found.

"Any possibility that the Constitution limits the reach of disclosure to express advocacy or its functional equivalent is surely repudiated by Citizens United v. FEC," Greenaway wrote.

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