[EL] Grassroots Lobbyign Disclosure

[BZall at aol.com]

Of course, leaving aside the CU analysis on whether there is any  
corrupting effect of lobbying and access (spoiler alert: NO, so where, exactly,  is 
the public interest in disclosure now?), there are, of course, other cases  
that address the specific question ducked in Doe v. Reed. 
 
>From my upcoming analysis of WRTL and the appropriate criteria for  judging 
political activity by c4s, another shortened excerpt about a recent case  
making the analysis fairly clear:
 
 
A recent Tenth Circuit case – a  foreshadowing of today’s IRS Advocacy 
Project scandal – shows how some courts  treat the “unduly burdensome” 
analysis. Colorado’s voters had enacted extensive  registration, reporting and 
disclosure requirements, according to their ballot  measure materials, to stop “
wealthy individuals, corporations, and special  interest groups [from] 
exercis[ing] a disproportionate level of influence over  the political process.” 
Sampson v.  Buescher, 625 F.3d 1247, 1254 (10th Cir. 2010). A small  
neighborhood association who had raised only $1,000 to oppose the  annexation of 
their neighborhood, complied with the State’s demand that they  register, 
establish a separate bank account, obtain an EIN, and report their  activities.  
But they balked when faced with further demands for extensive information  
including all communications with anyone about the annexation, all written  
materials, and all communications with government officials about the  
annexation. After dismissing the government’s interests in protecting against  
violations of contribution limits on independent expenditures and the  
possibility of quid-pro-quo  corruption, the Tenth Circuit noted:  
Thus, the reporting and disclosure requirements for Colorado issue  
committees (at least those committees addressing ballot issues) must be  justified 
on the third ground—the informational interest. We must therefore  analyze 
the public interest in knowing who is spending and receiving money to  
support or oppose a ballot issue. It is not obvious that there is such a public  
interest. Candidate elections are, by  definition, ad hominem affairs. The 
voter must evaluate a human being,  deciding what the candidate’s personal 
beliefs are and what influences are  likely to be brought to bear when he or 
she must decide on the advisability of  future governmental action. The 
identities of those with strong financial ties  to the candidate are important 
data in that evaluation. In contrast, when a ballot issue is before  the voter, 
the choice is whether to approve or disapprove of discrete  governmental 
action, such as annexing territory, floating a bond, or  amending a statute. 
No human being is  being evaluated. When many complain about the 
deterioration of public  discourse—in particular, the inability or unwillingness of 
citizens to listen to  proposals made by particular people or by members of 
particular groups—one could  wonder about the utility of ad hominem arguments in 
evaluating ballot issues.  Nondisclosure could require the debate to 
actually be about the merits of the  proposition on the ballot. Indeed, the 
Supreme Court has recognized that  “[a]nonymity ... provides a way for a writer 
who may be personally unpopular to  ensure that readers will not prejudge her 
message simply because they do not  like its proponent.” McIntyre, 514 U.S. 
at 342, 115 S.Ct.  1511. 
625 F.3d at 1256-57. 
Thus, after analyzing the likely benefits against the burdens of the  
regulatory scheme, the Tenth Circuit rejected the campaign finance disclosure  
requirements: 
In our view, the burden on Plaintiffs’ right to association imposed by  
Colorado’s registration and reporting requirements cannot be justified by a  
public interest in disclosure. The burdens are substantial. The average 
citizen  cannot be expected to master on his or her own the many campaign  
financial-disclosure requirements set forth in Colorado’s constitution, the  
Campaign Act, and the Secretary of State’s Rules Concerning Campaign and  
Political Finance. Even if those rules that apply to issue committees may be  few, 
one would have to sift through them all to determine which apply. As the  
Supreme Court recently observed in rejecting a proposed intricate 
interpretation  of the term electioneering communication in 2 U.S.C. § 441b: “Prolix laws 
 chill speech for the same reason that vague laws chill speech: People of 
common  intelligence must necessarily guess at the law's meaning and differ 
as to its  application.” Citizens United, 130 S.Ct. at 889 (brackets and 
internal  quotation marks omitted). The Secretary of State’s website 
acknowledged that the  State's campaign finance laws and rules “are complex,” Aplt. 
App., Vol. II at  750, and the official who oversaw the Secretary of State’s 
campaign finance  department testified that she advises those with difficult 
questions to retain  an attorney. And even attorneys are not error-free. 
Recall that the complaint  filed by attorney Hawkins with the Secretary of 
State incorrectly alleged that  persons who had obtained campaign materials from 
Plaintiffs could be subject to  sanctions under Colorado law. Moreover, 
failure to comply with the rules can be  expensive; failure to meet a recording 
deadline can cost $50 a day, see  Colo. Const. art. XXVIII, § 10(2)(a). As 
Plaintiff Becky Cornwell stated in her  affidavit: 
I  found the [campaign] laws difficult to understand and I constantly 
worried about  being sued for even the smallest error. Particular points—like 
non-monetary  contributions—were counterintuitive; the forms were hard to 
follow; the website  was often slow and had technical glitches; and getting 
questions answered often  took several days and sometimes did not yield correct 
answers or even any answer  at all. 
Aplt. App., Vol. II at  490. 
It is no surprise that Plaintiffs felt the need to hire counsel upon  
receiving the complaint against them filed with the Secretary of State. One  
would expect, as was the case here, that an attorney's fee would be comparable  
to, if not exceed, the $782.02 that had been contributed by that time to the 
 anti-annexation effort. This is a substantial burden. See Citizens  
United, 130 S.Ct. at 889 (“The First Amendment does not permit laws that  force 
speakers to retain a campaign finance attorney, conduct demographic  marketing 
research, or seek declaratory rulings before discussing the most  salient 
political issues of our day.”). And added to that burden was the burden  on 
Plaintiffs of time, energy, and money to review the law themselves and to  
take off work to attend the hearing on the complaint against  them. 
On the other side of the scale, the public interest in disclosure is  
minimal. 
625 F.3d at 1259-60.
Of course, not a Supremes' decision, but can you really fault the analysis? 
 Especially in light of the numerous recent opinions discussing burden and 
"the  tie goes to the speaker, not the censor"? 

Barnaby Zall 
Of Counsel 
Weinberg, Jacobs & Tolani,  LLP 
10411 Motor City Drive, Suite 500
Bethesda, MD 20817
301-231-6943  (direct dial) 
bzall at aol.com  
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