[EL] Eighth Circuit Upholds Ban on Direct Corporate Contributions

[Derek Muller]

Dear all,

A few things struck me about this opinion.

First, it concluded that the "burdens" of PACs came from the "cumulative
effects of the federal regulations and not the existence of any specific
regulation." Slip op. at 12. When evaluating Minnesota's regulations as a
whole, the court concluded that they were "significantly less burdensome"
than the federal regulations on PACs. The majority rejected the claim that a
period reporting requirement "creates a PAC-like burden that effectively
bans corporate speech, or at least chills it." *Id.* at 13 n.4. *See also
id.* at 16 ("Based upon the record before the district court, Minnesota
appears to have adequately tailored its laws because, as we found in the
previous section, Minnesota's provisions collectively impose no materially
greater burden than the disclosure laws at issue in *Citizen[s] United*.")
Because they were disclosure laws, they were subject to the "less-rigorous
exacting-scrutiny standard." *Id.* at 15.

Second, the dissent noted the *Beaumont* issue, but it also rejected the
majority's assertions about the burdens placed upon corporations. It
characterized these regulations as ones that "manifestly discourage
corporations, particularly corporations with limited resources, from
engaging in protected political speech, and hinder their participation in
the political debate and their access to the citizenry and the government."
*Id.* at 23. It found that the "potentially perpetual" reporting
requirements and substantial civil and criminal penalties for violations
could not allow a state "to sidestep strict scrrutiny analysis simply by
labeling burdensome regulations as a 'disclosure law,' *when the effect, if
not the design, is to discourage corporate speech*." *Id.* at 27 (emphasis
added).

This volley between the majority and the dissent on what's burdensome, or
what's a "disclosure law" as opposed to "requirements Minnesota imposes on
corporations [that] have nothing or very little to do with disclosure," *id.
* at 25, is a fairly fascinating one--and, perhaps, can only be resolved by
another word from the Supreme Court.

Finally, in a moment of humble speculation, the composition of the panel
and the nature of the opinion lead me to believe there is a non-trivial
chance that this decision could go *en banc* before the Eighth Circuit,
should the appellants seek it. If the petition is styled as a debate over
whether the disclosure laws were actually about "disclosure" or not, and the
level of scrutiny for such laws, it may succeed. Of course, if the
appellants concede that *Beaumont* is the most salient issue, then
certiorari would be the only viable option.

Best,

Derek


Derek T. Muller

Visiting Assistant Professor of Law

Penn State Dickinson School of Law

Lewis Katz Building

University Park, PA 16802

814-867-3411


On Mon, May 16, 2011 at 11:39 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  Breaking News: Eighth Circuit Upholds Minnesota Ban on Direct Corporate
> Contributions to Candidates, Minnesota Corporate IE Disclosure Rules
>
> In Minnesota Citizens Converned for Life, Inc. v. Swanson<http://www.ca8.uscourts.gov/opndir/11/05/103126P.pdf>,
> the Eighth Circuit unanimously upheld a district court's decision not to
> preliminarily enjoin Minnesota's ban on direct corporate contributions. (One
> of the three judges wrote separately to question whether the Supreme Court
> ultimately might overrule its Beaumont case upholding the corporate
> contribution ban). The court split 2-1 on Minnesota's rules governing
> corporate independent expenditures, and whether the rules run afoul of *Citizens
> United*.
>
> I was very happy to see this opinion, as I have the same issue pending in
> the Ninth Circuit in the Thalheimer<http://electionlawblog.org/archives/city-9th-reply.pdf>case, where I am one of the attorneys defending the City of San Diego's
> campaign contribution laws. The Thalheimer case was argued<http://electionlawblog.org/archives/016763.html>in the Ninth Circuit at the beginning of October.
>  Posted by Rick Hasen at 08:34 AM<http://electionlawblog.org/archives/019498.html>
> --
> Rick Hasen
> Visiting Professor
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org
>
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