Brief Urges Supreme Court to Review Florida PAC Regulations

$600 of citizen-funded radio ads blocked by state’s red tape

For Release: October 17, 2013   Contact: Joe Trotter   Phone: 210-352-0055 (Cell)

Alexandria, Va.— Can Florida use red tape to block citizens from running a small radio ad buy?  The Center for Competitive Politics (CCP) and Cato Institute filed a friend of the court brief late yesterday urging the US Supreme Court to review an appeals court ruling that upheld a complex Florida law that generates excessive red tape for small groups of speakers.

The case is Worley v. Florida Secretary of State, and involves Floridian Andrew Worley who, along with three other individuals, wanted to spend $600 on radio ads opposing a proposed amendment to his state’s constitution. Under Florida law, individuals cannot speak out in this way unless they form a political committee—a separate entity which must, among other things, organize, register with the state, name a treasurer, submit to random audits, file detailed reports at regular intervals, and comply with various other burdens.  Worley and his friends found the red tape too much to untangle in order to run a few simple radio ads in his community.

Worley has appealed a decision by the Eleventh Circuit to convert the as-applied challenged to Florida’s PAC registration and reporting requirements into a facial challenge of the law based upon a hypothetical question asked at oral argument.  By converting the as-applied challenge into a facial challenge, the Court unfairly shifted the burden of demonstrating that the burdens of Florida’s PAC laws are unconstitutional in all possible cases to the plaintiff, Mr. Worley.

“That an appellate court may simply transform a case from a narrow, as-applied challenge into a facial attack is very troubling, especially since the Eleventh Circuit did so without any reference to the record before it,” CCP Legal Director Allen Dickerson said. “The Worley plaintiffs spent a good deal of time developing that record. It should not have been set aside on the basis of a foundationless hypothetical.”

“A few years ago, the Tenth Circuit considered this same issue: whether the government can impose these burdensome PAC requirements on a small group of citizens who raise a little bit of money to talk about an issue. Rather than abdicating their constitutional role, that court reviewed the as-applied challenge and ruled for the plaintiffs,” said CCP Staff Attorney Anne Marie Mackin. “While it is unfortunate that the Eleventh Circuit has not done the same thing here, we hope the Supreme Court will grant Mr. Worley’s petition, if only to remind the lower courts how important it is to consider the effect of these burdensome laws on individual citizens.”

The brief argues that, “This Court should grant the petition for certiorari to address the Judiciary’s duty to meaningfully review as-applied challenges to laws burdening fundamental First Amendment rights” particularly because “PAC status burdens speech more fundamentally than does mere ‘disclosure,’ and the Eleventh Circuit below failed to consider this burden in assessing the Florida law’s constitutionality.”

Further, despite claiming that the Florida law would be reviewed under “exacting scrutiny”, the Eleventh Circuit deferred to the government’s description of the law as “mere disclosure” and refused to require the government to show that the law bore a “substantial relation” to a “sufficiently important interest.” Unsurprisingly, after rewriting Mr. Worley’s case, the Eleventh Circuit found the law constitutional.

The CCP-Cato brief urges the Court to hear Worley because the Court of Appeals did not review these requirements as carefully as the Constitution requires. The Worley challenge represents an important opportunity for the Supreme Court to consider how much states can require of small groups of people intending to spend remarkably modest sums speaking about local issues.

A copy of the CCP-Cato brief is available here. A copy of the Worley plaintiffs’ petition for certiorari is available here.

The Center for Competitive Politics promotes and defends the First Amendment’s protection of the political rights of speech, assembly, and petition. It is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

The Center for Competitive Politics is now the Institute for Free Speech.