When the Supreme Court issued Citizens United v. FEC, there was little question that the landscape of campaign finance law shifted.  Much of the aftermath continues to focus on independent spending, contribution limits, and outright contribution bans on corporations and government contractors—restrictions that may have been upended by the notion that Citizens United narrowed the supporting governmental interest to quid pro quo corruption.  But in the meantime, states have responded by broadening disclosure regimes, often pointing to the fact that Citizens United upheld the public’s “interest in knowing who is speaking about a candidate.”  Various groups and individuals have, in turn, brought legal challenges to strike down those regimes, leading to a somewhat confused evolution in disclosure laws.  This was evident in two federal appellate decisions issued last week.

The Eleventh Circuit concluded that it was constitutional for Florida to require individuals to register as a PAC and file periodic disclosure reports when they pooled together $600 to fund radio ads about a ballot initiative.  But along the way, the court disagreed with a recent Tenth Circuit decision that stated: “It is not obvious that there is such a public interest” in reporting and disclosure when ballot initiatives are concerned because there is no need for the voter to “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.”  And even though the Eleventh Circuit ultimately held that the reporting and registration requirements in Florida were not “unduly burdensome,” it noted “concerns about the burdens that the lack of [minimum disclosure thresholds] place on truly small grassroots groups with little experience and little money.”

The Eighth Circuit by contrast held parts of Iowa campaign finance laws to be unconstitutional because they were in fact unduly burdensome.  On the one hand, a non-profit that makes a one-time independent expenditure could be required to file an “independent expenditure statement” and “initial report” within 48 hours, in part because “modern technology” makes the “burden of completing the short, electronic form . . . not onerous.”  But on the other hand, Iowa law could not compel the non-profit to file quarterly and supplemental reports thereafter because such requirements could discourage non-PACs, “particularly small [ones] with limited resources, from engaging in protected political speech” in the first place.

If you find all of this confusing, you’re in good company.  Even the Florida election officials in the Eleventh Circuit case “acknowledge that the laws were complex, and that state officials newly working with the laws need months of study to become comfortable with them.”  But what this importantly shows is that disclosure regimes are increasingly a point of contention, and that courts are struggling to figure out when the burdens on speech become so great that they are unconstitutional.  Perhaps some consensus will emerge as more opinions issue.  But for now, one gets the sense that small details, procedural niceties, and the still uncertain status of the “major purpose” test are pushing the courts to draw some thin lines that may end up collapsing in on themselves.  As always, time will tell.