Illinois Beats Challenge on Campaign Disclosures

     (CN) – The 7th Circuit upheld a law that requires large political supporters in Illinois to disclose their contributions with the Federal Election Commission.
     The Center for Individual Freedom, a Virginia-based nonprofit, has historically advocated conservative viewpoints during election seasons, but it claimed that concerns over newly amended campaign finance laws in Illinois caused it to skip that election cycle in 2010.
     Borrowing from federal law, the state defines “electioneering communication” as “a radio, television, or Internet broadcast that (1) refers to a ‘clearly identified’ candidate, political party, or ballot issue; (2) is made within two months of a general election or one month of a primary election, (3) is ‘targeted to the relevant electorate,’ and (4) is unambiguously an ‘appeal to vote’ for or against a candidate, party, or ballot issue.”
     If an organization spends funds on electioneering communications that are coordinated with a political committee, Illinois treats it as a contribution to that committee. Uncoordinated electioneering communications qualify as independent expenditures.
     In 2010, the center sued the state attorney general and elections board, arguing that the definitions of “electioneering communications,” “political committee,” “contribution,” “expenditure,” and “independent expenditure” are facially vague and overbroad.
     After federal judge refused to enter a preliminary injunction and dismissed the group’s amended complaint, the 7th Circuit affirmed.
     Noting that there is a “sufficiently important governmental interest to support Illinois’s disclosure requirements,” the panel said that it is equally important to educate Illinois voters.
     “When Illinois citizens ‘act as legislators’ during initiative campaigns, the state requires those who ‘attempt to influence legislation’ being considered on the ballot to disclose a ‘modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose’ – namely, ‘who is putting up the money, and how much,'” Judge David Hamilton wrote for a three-judge panel. “This ‘enables the electorate to make informed decisions and give proper weight to different speakers and messages.’ Such regulation is substantially related to Illinois’s interest in preserving an informed electorate.”
     Disclosure laws may burden First Amendment rights by deterring contributions from donors who would prefer to remain anonymous or fear retaliation when their names are made public, but the state has a legitimate interest to justify the burden, according to the ruling.
     The center’s “broad ‘interest in anonymity’ does not justify invalidating disclosure laws in a facial challenge brought by a national political advocacy organization that seeks to use the mass media in Illinois to spread its political messages on a broad scale,” Hamilton wrote. “That is exactly the sort of campaign-related advertising about which Illinois has a substantial interest in providing information to its public.
     “Similarly, the record in this facial challenge does not support any prospect of retaliation that could bar application of [Illinois’s law],” the court added.
     Though the center also claimed that the First Amendment exempts interest groups, rather than candidate supporters, from disclosure requirements, the court disagreed here too.
     “Limiting disclosure requirements to groups with the major purpose of influencing elections would allow even those very groups to circumvent the law with ease,” the 80-page ruling states. “Any organization dedicated primarily to electing candidates or promoting ballot measures could easily dilute that major purpose by just increasing its nonelectioneering activities or better yet by merging with a sympathetic organization that engaged in activities unrelated to campaigning.”
     “It is easy to imagine how implementing the kind of major-purpose test the Center advances could devolve into an administrative nightmare,” Hamilton added. “The First Amendment does not require a state to build such an escape hatch into reasonable disclosure laws.”
     Outside spending in the 2012 federal elections has already approached $300 million nationwide, the ruling states.
     “Amidst this cacophony of political voices – super PACs, corporations, unions, advocacy groups, and individuals, not to mention the parties and candidates themselves – campaign finance data can help busy voters sift through the information and make informed political judgments,” Hamilton wrote.
     “Although ‘disclosure is a less restrictive alternative to more comprehensive regulations of speech,’ we are not unmindful of the costs it may generate in foregone speech from those who wish to remain anonymous, in the loss of privacy, and from social friction,” he added, citing the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. “Campaign finance disclosure laws must strike a balance between protecting individual speakers from invasions of privacy and harassment on the one hand, and enabling transparency and accountability in political campaigns on the other. Illinois’s laws do so sufficiently to survive this facial challenge.”
     In a partial dissent, Judge Richard Posner said several provisions in the Illinois law are too burdensome on free speech.
     “Speech can have all sorts of connections to an election: it may mention an election, describe a candidate and his positions, or simply refer to a policy that is at issue in the campaign,” Posner wrote. “A dry discussion of economic indicators might be seen as being ‘in connection with’ an election in which the main issue was economic policy.”
     “Because disclosure requirements are not constitutionally limited to express advocacy for a candidate, there is no telling how far Illinois’s definition reaches into the realm of issue advocacy,” he added. “Once again, to be sure of not having to register, an organization like CIF might decide to avoid speaking about any policy issues during election campaigns. It might go silent during campaigns.”
     “That is the vice of vagueness – that it causes an organization or an individual to give a law a wide berth, in this instance by forgoing constitutionally protected speech,” the dissent concludes. “We should insist, in the name of the First Amendment, that the Illinois legislature speak with greater clarity.”
     The majority opinion notes that every federal appeals court to hear challenges to disclosure requirements has upheld the regulations, but it makes no mention of the 8th Circuit decision published days earlier that strikes down Minnesota’s disclosure requirements.

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