Eighth Circuit muffs it in Minnesota Citizens Concerned for Life v. Swanson

The Eight Circuit today upheld a lower court decision denying a preliminary injunction against enforcement of Minnesota’s PAC requirements in Minnesota Citizens Concerned for Life v. Swanson. A quick first reaction:

Basically, despite the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, which held that corporations could not be forced to limit their political speech to a PAC, the 8th Circuit upheld Minnesota’s law requiring corporations to limit their political speech to a PAC.  The Court reasoned that the Minnesota law did not limit the ability of a corporation to contribute to its own PAC, and the other requirements were basically about disclosure, which can be constitutionally mandated, so what’s the problem?

What the Court forgot to ask is whether the Minnesota law serves any purpose at all.  While the majority is correct that it doesn’t limit corporate political spending, the registration and disclosure requirements provide no information to the public that serves a government interest, beyond that that would be required by Minnesota law if the PAC requirement were abolished. In other words, the law doesn’t even pass what we in the law biz call the “rational basis” test, since independent corporate expenditures have to be disclosed anyway, with or without the added burdens Minnesota creates by forcing corporations to use PACs to speak. The law’s sole remaining purpose seems to be to harass corporate speakers. Is there any other purpose? If, on the other hand, the majority is incorrect and the law does limit corporate spending, then it runs afoul of Citizens United.


The majority doesn’t really address what interest the state has in this scheme.  Oh, it says that it provides the public with information, but so would a much simpler system that would not require termination reports, separate accounting, and so on.  In other words, while the burden may be minor, it’s hard to see that the state has any interest in its specific regulatory scheme. In this respect, the majority is also simply factually wrong in saying that the system is not more burdensome than the federal regulations.


If the decision stands (and we should also note it is only at the preliminary injunction stage), it will add years more litigation as states, egged on by those who simply want to limit speech, test how far they can go in still requiring the establishment and use of PACs. 


This was an easy case, a routine ground ball to second base.  And the court threw it over the first baseman’s head and into the stands. Let’s hope an en banc panel straightens it out.



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