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

[Joe La Rue]

[FULL DISCLOSURE: I worked on the briefing for this case while I was an
attorney at Jim Bopp's firm]

I find three very interesting conclusions in this opinion. FIRST, the 8th
Circuit held Minnesota's requirement that corporations making independent
expenditures do so by registering a political fund to be unconstitutional
even *exacting *scrutiny. The court recognized that laws burdening
political speech are subject to strict scrutiny, while mere disclosure laws
are subject to the lesser, exacting scrutiny standard. The district court
had characterized Minnesota's PAC-style burdens imposed on corporations
making independent expenditures as a "disclosure" law, subject to exacting
scrutiny. The Eighth Circuit said it questioned whether the Supreme Court
intended exacting, rather than strict, scrutiny should apply to so-called
"disclosure" laws that subject corporations to "the full panopply of
regulations that accompany status as a [PAC]." But the court reasoned
that it did not need to reach the question because, even under the exacting
scrutiny, Minnesota's requirement was unconstitutional. (pp. 16-17.)

SECOND, the court acknowledged that it is far from clear how rigorous
exacting scrutiny is as compared to strict scrutiny. Specifically, the
court said exacting scrutiny is "possibly" less rigorous than strict
scrutiny, and then presented a stringcite of Supreme Court decisions that
make exacting scrutiny sound just as rigorous as strict scrutiny. Without
settling that issue, the court concluded that there is no relevant
correlation between Minnesota's perpetual, regular reporting requirement
(irrespective of whether any political speech has actually occurred) and
any sufficiently important disclosure interest. (p. 19.)

FINALLY, it seems to me that the court's ultimate decision on disclosure is
problematic. The court reverses the denial of preliminary injunction, but
apparently only as to the on-going reporting requirement. (p. 20-21.) This
leaves intact the remainder of Minnesota's regulatory scheme that requires
corporations wishing to make independent expenditures do so by registering
a PAC -- the very thing that *Citizens United *said cannot be required. The
court further said that it expresses no opinion as to whether those aspects
of Minnesota's law are constitutional under exacting scrutiny.

While I am no longer associated with it or with Jim Bopp's firm, I think a
reasonable prediction is that there will be ongoing litigation in this case
for some time.



Joe
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*Joseph E. La Rue*
cell: 480.272.2715
email: joseph.e.larue at gmail.com


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On Wed, Sep 5, 2012 at 8:21 AM, Derek Muller <derek.muller at gmail.com> wrote:

> Opinion here: 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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