PHILADELPHIA (CN) - If Delaware election guides are merely educational, "why not tell voters about the polar bear population," the 3rd Circuit's chief judge quipped.
Chief Judge Theodore McKee made the remark in a Wednesday hearing before the 3rd Circuit on a sweeping Delaware law that requires donor disclosure of election material, regardless of whether that material expressly supports any candidate.
Like so many others, the case falls in the gray area of the Supreme Court's 2010 decision in Citizens United v. Federal Election Commission.
The case reached the federal appeals court after U.S. District Judge Sue Robinson granted the conservative nonprofit Delaware Strong Families an injunction against the law.
Delaware Strong Families had claimed that the law would improperly restrict its distribution of a voting guide that lists how Delaware Senate candidates fall on issues such as supporting Planned Parenthood, approving the Keystone Pipeline, and amending the Constitution to define marriage as between a man and a woman.
"DSF does not endorse or oppose candidates for office," the guide says.
Delaware Strong Families describes itself on its website as "uniquely designed to equip Pastors and churches to speak truth."
Robinson had called the law, which requires any group that spends more than $500 on election material fewer than 60 days before an election to disclose its third-party supporters, "so broadly worded as to include within the scope of its disclosure requirements virtually every communication made during the critical time period, no matter how indirect and unrelated it is to the electoral process."
In Delaware Strong Families' case, the voting guide was not sufficiently orientated toward support for particular candidates to require the disclosure, Robinson said.
Jonathan Cederbaum, a partner at WilmerHale representing Delaware, told the 3rd Circuit that that the voting guide fell into the exception allowed for disclosure under Citizens United because it was "intended to influence voters at the ballot box."
The Supreme Court majority had found that "express advocacy" of candidates could be subject to disclosure requirements, Cederbaum noted.
Though the nonprofit's attorney Allen Dickerson argued that the voter guide was created as a general education tool, Chief Judge 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?"
If "the point of the organization is to advocate for Purpose A," McKee said, "I'm not sure the distinction you're drawing is very valid."
Dickerson called the $500 trigger overly burdensome and said it could chill free speech. Delaware had argued that $150 could be used to robocall an entire House district in the state.
Citizens United removed limits on third-party election communications, but the decision left no firm holding on whether states could require that donors to election communications be disclosed. It did, however, reaffirm previous standards holding it unconstitutional to require disclosure if doing so would cause "threats, harassment or reprisals" from the government or other parties.
McKee moved from polar bears to sea mammals in Cederbaum's rebuttal. "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.
Cederbaum replied that such disclosure requirements "may have some deterrent effect there."
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