The U.S. Court of Appeals for the Tenth Circuit issued an opinion today in Sampson v. Buescher, striking down regulations pertaining to groups advocating for or against ballot initiatives.
The Institute for Justice (IJ) represented the plaintiffs, a group of residents who sought to band together in opposition to a ballot issue involving the annexation of their neighborhood. From the IJ release:
In Sampson v. Buescher, Judge Harris L. Hartz of the 10th U.S. Circuit Court of Appeals, writing for a unanimous court, recognized the severe burden Colorado’s campaign finance laws imposed on grassroots political activists. In his opinion, he wrote, “The average citizen cannot be expected to master on his or her own the many campaign financial-disclosure requirements set forth in Colorado’s constitution, the Campaign Act, and the Secretary of State’s Rules Concerning Campaign and Political Finance.”
…
Plaintiff Becky Cornwell, who had to comply with Colorado’s laws for the Parker North group, said, “Individuals should not have to comply with complicated rules just to speak. As the group’s registered agent, I was constantly worried about making a small error that would lead to another lawsuit and possibly fines. Thanks to this ruling, I finally feel like my neighbors and I can join together to speak out about the issues we care about.”
The 31-page opinion makes a forceful case against burdensome disclosure regimes without regard to a legitimate cost-benefit analysis:
At issue on this appeal is a different type of campaign committee, not one seeking to elect or defeat a candidate, but one seeking to prevail on a ballot initiative. A citizen voting on a ballot initiative is not concerned with the merit, including the corruptibility, of a person running for office, but with the merit of a proposed law or expenditure, such as a bond issue. As a result, the justifications for requiring disclosures in a candidate election may not apply, or may not apply with as much force, to a ballot initiative. Disclosure may facilitate ad hominem arguments-for whatever they are worth-on the merits of the ballot initiative; but there is no need for concern that contributors can change a law enacted through a ballot initiative as they can influence a person elected to office…
Plaintiffs contend that Colorado reporting requirements unconstitutionally burden their First Amendment right to association. We agree that Colorado law, as applied to Plaintiffs, has violated their constitutional freedom of association. There is virtually no proper governmental interest in imposing disclosure requirements on ballot-initiative committees that raise and expend so little money, and that limited interest cannot justify the burden that those requirements impose on such a committee.
The court considered the intent of Colorado voters in passing a constitutional amendment relating to campaign finance regulations, noting that the language-“large campaign contributions made to influence election outcomes allow wealthy individuals, corporations and special interest groups to exercise a disproportionate level of influence over the political process…”-did not seem to apply to a low-spending, grassroots group of Coloradoans. (The language in the amendment is also very similar to the rationale in Austin v. Michigan Chamber of Commerce, which the Supreme Court struck down in Citizens United v. Federal Election Commission after the government declined to defend that rationale).
Despite this caveat, the court strongly questions the informational public interest of disclosure (especially in the context of ballot initiatives):
It is not obvious that there is such a public interest. Candidate elections are, by definition, ad hominem affairs. The voter must evaluate a human being, deciding what the candidate’s personal beliefs are and what influences are likely to be brought to bear when he or she must decide on the advisability of future governmental action. The identities of those with strong financial ties to the candidate are important data in that evaluation. In contrast, when a ballot issue is before the voter, the choice is whether to approve or disapprove of discrete governmental action, such as annexing territory, floating a bond, or amending a statute. No human being is being evaluated. When many complain about the deterioration of public discourse-in particular, the inability or unwillingness of citizens to listen to proposals made by particular people or by members of particular groups-one could wonder about the utility of ad hominem arguments in evaluating ballot issues. Nondisclosure could require the debate to actually be about the merits of the proposition on the ballot. Indeed, the Supreme Court has recognized that “[a]nonymity . . . provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”
The Center for Competitive Politics filed an amicus brief in this case. IJ’s backgrounder on Sampson is here. They also produced a video about the case:
