PORTLAND, Ore. (CN) – Attorneys debated the constitutionality of Washington’s public disclosure law before the 9th Circuit last week. A conservative political action committee claims the law banning PACs from contributing more than $5,000 in the three weeks before an election is unconstitutional.
Nancy Krier, speaking for defendant Washington State Public Disclosure Committee, said the challenged law is “well-settled” and justified.
The three-judge panel grilled Krier on the requirements of the law, which requires political donors who contribute more than $25 to disclose their names and addresses, requires donors of more than $100 to disclose the name of their employer, and bans contributions of more than $5,000 by PACs in the 21 days before an election.
Judge Raymond Fisher Krier asked why Washington requires donors of more than $25 to disclose their name and address.
“At some point you get down so low in the level of what you are requiring to be reported that it begins to lose touch with the purpose of the disclosure,” Fisher said.
Krier said that the law, passed in 1972, allows voters to “follow the money,” and the Public Disclosure Committee allows anyone to look up where the money comes from that supports or opposes political campaigns and ballot measures.
“If I make a $26 donation to some ballot committee, I only have to reveal my name and address?” Judge Richard Paez asked. “If it’s so important to have all this disclosure, why isn’t it equally important to have a $25 level with the employer’s name?”
Krier said the Washington Supreme Court has described the public disclosure law as a “mosaic that the people themselves designed.”
“You start taking out chunks of the mosaic, and you create loopholes for non-disclosure and non-transparency, which is completely the opposite of the intent of the initiative,” Krier said.
Judge Fisher asked why the law bans contributions of more than $5,000 in the 21 days before an election.
“Disclosure is one thing, but restricting the giving of money is quite a different matter,” Fisher said. “Three weeks before an election is one heck of an important time period, is it not?”
Krier said political campaigns plan around that time period, which is “well-known” and “has provided absolutely no impediment” to ballot measures.
She said there are alternatives to donating more than $5,000 to a PAC in the weeks before an election, including making an independent expenditure which is a “viable alternative to speech.”
Attorney Jim Bopp then argued for the plaintiff, Family PAC, a conservative committee that rallied to ban gay marriage in Washington.
Bopp said his clients were unable to make contributions of $60,000 and $20,000 because of the prohibition on $5,000-and-up contributions in the 21 days before the election.
Bopp said the Public Disclosure Commission was “ignoring the direct effect” of the time-related contribution cap, which “limits speech.”
“Disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities,” Bopp said, quoting the U.S. Supreme Court ruling in Citizens United.
“[The Public Disclosure Commission] seem[s] to think they have total and absolute discretion whenever they do anything in the name of disclosure,” Bopp said of the disclosure requirements for political contributions of $25, $100 and more.
“The Supreme Court does seem to suggest that disclosure is the quid pro quo for the restrictions on the state’s ability to put caps on contributions,” Judge Fisher said.
Bopp replied: “You have to connect the rationale with the limit in order for it to be upheld,” adding that that is what he urged the court to do.
“The only thing that [Krier] has now said about the purpose of the $25 reporting is geographic patterns of contributions,” Bopp said.
The problem with the name-and-address disclosure requirement, Bopp said, is that “people are discouraged from making contributions because that private information is revealed.”
He cited a study that found “60 percent of people would think twice about making a contribution if they knew their name and address would be revealed” and that “only 23 percent thought it was OK that their employer would be disclosed” if they contributed more than $100.
“What level is permissible?” Judge Fisher asked. “Isn’t there an enforcement interest?”
Bopp answered: “We are not saying categorically that this information cannot be required. What we’re saying is the level at which the information is being required is too low.”
Bopp said that $1,000 would be a fair threshold to require disclosure of names, addresses, and employers.
Here is a link to an audiotape of the arguments.