McIntyre dealt with leafleting in a local referendum. We think somewhat different considerations apply in evaluating a disclaimer requirement in advertising in candidate elections. Indeed, in First Natâl Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Supreme Court expressly noted that although corruption concerns were a compelling state interest in candidate elections, they were not significant in the context of a referendum. Id. at 790. McIntyre itself pointed out that in candidate elections the state ãcan identify a compelling state interest in avoiding the corruption that might result from campaign expenditures.ä McIntrye, 514 U.S. at 356. The state has a legitimate concern that anonymous campaign support will become a quid for the quo of post election largesse. Id.; see also Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 297 (1981). Thus, McIntyre expressly noted that a ãmore narrowly drawn statuteä might pass constitutional muster. McIntyre, 514 U.S. at 356.

In McIntyre, Justice Ginsburg, concurring separately, expressly noted that the Supreme Court did ãnot thereby hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity.ä McIntyre, 514 U.S. at 358. Four years later, in Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999), Justice Ginsburg wrote for a five-justice majority that struck down some aspects of Coloradoâs regulation of solicitors in petition drives to place an issue on the ballot in a referendum. Once again the Court noted the distinction between candidate elections and referenda. Id. at 203. The majority found unconstitutional a requirement that solicitors wear badges with their names. But even in a referendum the majority found constitutional the requirement that a public affidavit disclose the name and address of the solicitor. A post-solicitation affidavit did not expose the solicitor to the risk of intimidation that an identifying badge presented in a face-to-face encounter with potential voters. The affidavit was thus ãthe type of regulation for which McIntyre left room.ä Id. at 200.

Could the argument not be made that McIntyre only applies to ballot issue elections and not candidate elections?  Certainly McIntyre stood for the proposition that anonymous speech is only available to an individual using his or her own modest resources.  As the case involved speech involving a ballot issue, and the courts have drawn distinctions between regulating candidate elections versus ballot issue elections, I think such an argument is not without merit.

Charlie Smithson
Director & Counsel
Iowa Ethics and Campaign Disclosure Board


-----Original Message-----
From: David Schultz [mailto:dschultz@gw.hamline.edu]
Sent: Monday, November 17, 2003 12:19 PM
To: election-law_gl@majordomo.lls.edu; jj.gass@nyu.edu
Subject: Re: new CFR case from D. Minn.


I should do a disclaimer in this case and note that I was expert witness
for the State of Minnesota.

To me, the only surprise was striking down some of the disclosure
requirements on the campaign literature, per Macintyre.  I think the
Court got it wrong here and think anonymous political speech only
applies to individuals, not groups.

David Schultz, Professor
Hamline University
Graduate School of Public
Administration and Management
MS-A1740
1536 Hewitt Avenue
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)

>>> "J. J. Gass" <jj.gass@nyu.edu> 11/17/03 10:55AM >>>
The slip opinion can be viewed as a pdf at
http://www.nysd.uscourts.gov/courtweb/pdf/D08MNXC/03-09227.PDF. If
you'd like to find the case on Westlaw or LEXIS, the caption is
Minnesota Citizens Concerned for Life, Inc. v. Kelley, Civ. No.
02-3819.

The plaintiffs challenged a fairly large number of provisions of
Minnesota law, almost all of which were upheld.  The two holdings I
found most notable include the one part of the statute that was struck
down--a requirement that all "campaign material" must contain the name
of the person or persons causing the campaign material to be created and
disseminated.  This failed for two reasons: first, the definition of
"campaign material" was vague ("any . . . material tending to influence
voting . . . ."); and, second, an exemption for small-scale distribution
of materials created independently from political committees was too
narrow to protect anonymous speech adequately under McIntyre.

The other most interest holding, to me anyway, was the court's
following the recent Ninth Circuit decision in Mont. Right to Life Ass'n
v. Eddleman, 343 F.3d 1085 (9th Cir. 2003), and upholding an aggregate
limit on the amount of PAC contributions a candidate could accept.


J. J. Gass
Associate Counsel, Democracy Program
212-998-6281
jj.gass@nyu.edu

Brennan Center for Justice at NYU School of Law
161 Avenue of the Americas, 12th Floor
fax 212-995-4550
www.brennancenter.org