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

[Joe La Rue]

One more thought: the court recognized that the imposition of the
various PAC-style burdens on corporations making independent expenditures
are only "tangentially" related to disclosure. (FN 10.) And the court
recognized that, exacting scrutiny has many similar features as strict
scrutiny, and regardless requires a "substantial relation" between the
disclosure sought and the state's sufficiently important interest. (p. 16.)
And yet the court expressed no opinion as to whether these aspects of
Minnesota law, that are only "tangentially" related to disclosure, are
constitutional. I know some on the List Serve might accuse me of having
sour grapes, but I find those two positions logically inconsistent.

Joe
___________________
*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 9:25 AM, Joe La Rue <joseph.e.larue at gmail.com> wrote:

> [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
> ___________________
> *Joseph E. La Rue*
> cell: 480.272.2715
> email: joseph.e.larue at gmail.com
>
>
> CONFIDENTIALITY NOTICE:  This e-mail message, including any attachments,
> is for the sole use of the intended recipient(s) and may contain
> confidential and privileged information or otherwise be protected by law.
> Any unauthorized review, use, disclosure or distribution is prohibited. If
> you are not the intended recipient, please contact the sender by reply
> e-mail and destroy all copies of the original message.
>
>
>
> 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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>
>
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