Since the Citizens United decision by the U.S. Supreme Court, courts and some state attorneys general have drawn a rather firm line in the sand: independent expenditure-only entities (so-called “Super PACs”) are not subject to contribution limits, but they must comply with registration and reporting requirements. Indeed, the Supreme Court’s statement in Citizens United that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages” has become somewhat of a mantra. Although some jurisdictions have created new disclosure systems to respond to Super PACs, others continue to require Super PACs to register and report in the same manner as any other traditional PAC. Still others have amended their laws to increase disclosure requirements in response to Citizens United. These requirements can be quite burdensome, but they have by and large survived courts challenges.
That changed this week when the en banc U.S. Court of Appeals for the Eighth Circuit, in a closely divided vote, ruled that Minnesota’s 2011 amendment to the state’s campaign finance law imposing such requirements is so burdensome as to be unconstitutional because it chills speech under the First Amendment. The registration and reporting requirements apply to virtually all associations that wish to make independent expenditures in excess of $100. In the majority’s words, “[t]he law manifestly discourages associations, particularly small associations with limited resources, from engaging in protected political speech.”
The Eighth Circuit’s decision is significant both because it was issued by an en banc appellate court and because it creates a “circuit split” with the U.S. Court of Appeals for the First, Ninth, and Eleventh Circuits. And if the State of Minnesota appeals, the Supreme Court may well feel compelled to clarify the bounds of its statement in Citizens United that the government “may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” The analysis requires difficult line-drawing and careful case-by-case consideration, but we may soon see the Supreme Court grapple with the question: How much is too much?
One other notable aspect of the Eighth Circuit decision is that the court upheld Minnesota’s ban on direct corporate political contributions. The challengers of the ban could appeal this part of the decision as well, but there is no guarantee that the Supreme Court would decide both issues—particularly since the Supreme Court upheld the federal ban on such contributions in 2003. Still, four of the nine Justices who heard that challenge are no longer on the Court, and Citizens United has certainly motivated free-speech plaintiffs to mount challenges to what arguably had been settled law.