[EL] Eighth Circuit Upholds Ban on Direct CorporateContributions

Mon May 16 09:57:10 PDT 2011

I posted a quick first reaction at
http://www.campaignfreedom.org/blog/detail/eighth-circuit-muffs-it-in-mi
nnesota-citizens-concerned-for-life-v-swanson.

Excerpt:

What the Court forgot to ask is whether the Minnesota law serves any
purpose at all.  While the majority is correct that it doesn't limit
corporate political spending, the registration and disclosure
requirements provide no information to the public that serves a
government interest, beyond that that would be required by Minnesota law
if the PAC requirement were abolished. In other words, the law doesn't
even pass what we in the law biz call the "rational basis" test, since
independent corporate expenditures have to be disclosed anyway, with or
without the added burdens Minnesota creates by forcing corporations to
use PACs to speak. The law's sole remaining purpose seems to be to
harass corporate speakers. Is there any other purpose? If, on the other
hand, the majority is incorrect and the law does limit corporate
spending, then it runs afoul of Citizens United.

***

If the decision stands (and we should also note it is only at the
preliminary injunction stage), it will add years more litigation as
states, egged on by those who simply want to limit speech, test how far
they can go in still requiring the establishment and use of PACs.  

***

This was an easy case, a routine ground ball to second base.  And the
court threw it over the first baseman's head and into the stands. Let's
hope an en banc panel straightens it out.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault 

  Designated Professor of Law

Capital University Law School

303 East Broad Street

Columbus, OH 43215

(614) 236-6317

bsmith at law.capital.edu <mailto:bsmith at law.capital.edu> 

http://www.law.capital.edu/faculty/bios/bsmith.asp
<http://www.law.capital.edu/faculty/bios/bsmith.asp> 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Derek Muller
Sent: Monday, May 16, 2011 11:53 AM
To: Rick Hasen
Cc: law-election at uci.edu
Subject: Re: [EL] Eighth Circuit Upholds Ban on Direct
CorporateContributions

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 <http://electionlawblog.org/> 

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