DSF v. Biden: Order Granting Motion for Preliminary Injunction

PDF of Order Granting MPI

Plaintiff Delaware Strong Families (“DSF”) has filed a verified complaint seeking a judgment to prevent enforcement of certain provisions of the Delaware Election Disclosures Act (“the Act”), 15 Del. C.§ 8001, et seq., which became law on January 1, 2013. Prior to its enactment, Delaware’s election laws did not regulate nonprofit corporations like DSF. In 2012, DSF distributed a voter guide1 over the Internet within 60 days of Delaware’s general election. DSF plans to engage in similar activity before the 2014 general election, and expects to incur costs over $500 in doing so. Under the Act, DSF’s activities, including the publication of its voter guide, will be within the regulatory purview of the State Commissioner of Elections (“the Commissioner”) and the Attorney General of the State of Delaware, defendants at bar.

More specifically, § 8031 (a) of the Act requires that “[a]ny person . . . who makes an expenditure for any third-party advertisement that causes the aggregate amount of expenditures for third-party advertisements made by such person to exceed $500 during an election period shall file a third-party advertisement report with the Commissioner.” 15 Del. C. § 8031 (a). The report includes, inter alia, the names and addresses of each person who has made contributions to the “person” in excess of $100 during the election period. “Person” includes “any individual, corporation, company, incorporated or unincorporated association, general or limited partnership, society, joint stock company, and any other organization or institution of any nature.”

15 Del. C. § 8002(17). “Third-party advertisement” means “an independent expenditure or an electioneering communication.” 15 Del. C. § 8002(27). “Electioneering communication” means “a communication by any individual or other person (other than a candidate committee or a political party) that: (1) Refers to a clearly identified candidate; and (2) Is publicly distributed within 30 days before a primary election or special election, or 60 days before a general election to an audience that includes members of the electorate for the office sought by such candidate.” 15 Del. C. § 8002(1 O)a.

According to the legislative history of the Act, its focus was on “clos[ing] loopholes about the transparency of third-party ads” by “better regulat[ing] electioneering communications by third-parties,” particularly as to “how the third party receives funding and where that money goes.” (D.I. 30, ex. 1, Del. House Admin. Comm. Minutes, House Bill No. 300 (May 2, 2012)) Also apparent from the legislative history is a concern about the power vested in the Commissioner “to make an exemption without any stipulations or guidelines as to how [she] can make exemptions. As a result, the state is delegating broad authority to a single person, and this could result in potential long-term problems.” (/d.) In this regard, 15 Del. C. § 8041 (1 )c gives the Commissioner the power to “adopt[ ] any amendments or modifications to the statements required under§ 8021 of this title, or exemptions from the requirements thereunder.” 15 Del. C. § 8041 (1 )c.

The court has jurisdiction over the matter pursuant to 28 U.S.C. § 1331, as the action arises under the First and Fourteenth Amendments to the United States Constitution. Venue in this court is proper under 28 U.S.C. § 1391(b)(1) and (b)(2).

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