Earlier this week, the 1st Circuit Court of Appeals in Boston issued an important decision upholding Maine’s campaign finance public disclosure laws. The opinion in NOM v. McKee is available here. (Disclosure: In 2010, ElectionSmith provided pro bono assistance to Thomas A. Knowlton and Phyllis Gardiner, Assistant Attorneys General, Office of the Maine Attorney General).
The appellate court affirmed the constitutionality of several of Maine’s election laws governing the registration and campaign finance public disclosure of the activities of political action committees (“PACs”). The National Organization for Marriage (“NOM”), a New Jersey-based nonprofit opposed to same-sex marriage (and represented by attorney James Bopp), appealed a district court’s ruling that broadly rejected NOM’s facial and as-applied challenge that Maine’s public disclosure laws supposedly chilled the group’s First Amendment rights to influence elections. In 2009, NOM spent more than $1.8 million in Maine in an effort to overturn the state’s recently enacted same-sex marriage law, but it refused to disclose its donors.
Here’s a snippet of the NOM v. McKee decision:
After careful consideration of the parties’ arguments and key precedents, we conclude that Maine’s laws pass constitutional muster. Central to our holding is the nature of the laws NOM challenges here. These provisions neither erect a barrier to political speech nor limit its quantity. Rather, they promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas. As the Supreme Court recently observed, such compulsory “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” Citizens United v. FEC, 130 S. Ct. 876, 916 (2010). While we acknowledge that disclosure can, in some cases, unduly burden or chill political speech, there is no evidence that the Maine laws at issue here have had such a deleterious effect on NOM or its constituents.
We agree with the appellees that the use of “for the purpose of influencing” in the statutes at issue, given the appropriately limited reading offered by Maine’s Commission on Governmental Ethics and Election Practices, is not unconstitutionally vague, and therefore we vacate the district court’s holding as to that phrase and the consequent severance of portions of Maine’s statutes. We otherwise affirm the district court’s judgment in its entirety.
The 1st Circuit Court of Appeals’ three-judge panel rightly drew upon the US Supreme Court’s Citizen United decision affirming the constitutionality of public disclosure laws; in Citizens United, the majority held that disclosure laws “impose no ceiling on campaign-related activities” and “certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption.”
As I’ve written before, most notably in my 2005 Election Law Journal article with Elizabeth Garrett, “Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy,” campaign finance public disclosure laws shed light on otherwise subterranean activities, and in doing so, provide information brokers—and by extension, voters—with insight into the financial interests promoting or opposing ballot measures. They are an essential bulwark against unregulated and anonymous special interest involvement in ballot issue campaigns. I expect a similar ruling from the U.S. District Judge Robert Hinkle in the Florida public disclosure case, Worley v. Roberts, which I write about here.