[EL] En banc Eighth Circuit eblocks expenditure limits in Minnesota CFR law

[BZall at aol.com]

Actually, this "fractured" en banc 8th Cir. opinion is a fascinating  
analysis of the latest cases on "exacting scrutiny" and how and when it is to be  
applied. This was a nice debate about the extent to which "disclosure" is 
and  should be the new central point of campaign finance analysis. 
 
Read together, the preliminary injunction portion's analysis of likelihood  
of success on the merits and the upholding of the contribution limit put a  
judicial imprimatur on what several list participants have been saying 
recently:  permissible disclosure requirements vary between contributions to 
campaigns and  independent expenditures, because the government's interests 
vary between those  two situations. Under Beaumont, one may be permissibly 
limited; the other may  not be. Slip Op. P. 22. Even "exacting scrutiny" is 
insufficient shorthand,  since there are varying interests involved even within 
the category of  "disclosure." Davis v FEC, a 2008 decision often overlooked 
in discussions of  disclosure. Slip Op. P. 18, noting Buckley's description 
of "exacting scrutiny"  as a "strict test" requiring more than a 
"legitimate governmental  interest."
 
In other words, saying "the Supreme Court upheld disclosure requirements"  
is the beginning of the analysis, not the end. You then have to determine 
what  is sought to be disclosed, what government interests are sought to be 
protected  by the disclosure requirements, whether those interests are 
sufficient to  outweigh the burdens on speech and other First Amendment rights, and 
then  determine if the disclosure requirements are tailored narrowly to 
achieve or  protect those interests. This was akin to the Supreme Court's 
analysis in  Citizens United, and the 8th Circuit majority seems to be carrying 
that forward  in a manner sometimes lacking in other discussions of the 
cases. Bottom line: If  the burden of disclosure is too great, the disclosure 
requirement should fall. 
 
Of course, we can all argue about the burden of disclosure (and probably  
already have). But here the question is not retaliation by government or 
private  parties, but the actual compliance burden with the disclosure 
requirement. 
 
In some of my compliance training sessions, I posit the situation I wrote  
about on this list before, of Ma and Pa Bo Peep, and all the trouble they 
have  (and laws they must comply with) just to create a new organization "No 
More  Clips" to complain about S. 666, the Shearing and Fleecing Improvement 
Act.  Spoiler alert: they go home, having been shorn. Maybe no longer in  
Minnesota. 
 
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani,  LLP
Please note our new address:
10411  Motor City Dr., Suite 500
Bethesda, MD 20817
301-231-6943 (direct dial)
_www.wjlaw.com_ (http://www.wj/) 
bzall at aol.com



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In a message dated 9/5/2012 11:26:12 A.M. Eastern Daylight Time,  
derek.muller at gmail.com writes:

Opinion  here: _http://www.ca8.uscourts.gov/opndir/12/09/103126P.pdf_ 
(http://www.ca8.uscourts.gov/opndir/12/09/103126P.pdf) 

Court  appears to be unanimous that Beaumont controls on Minnesota's  
contribution ban, but the court fractures in its decision to enter a  preliminary 
injunction on independent expenditures (and reverses the original  panel  
opinion).

Derek


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