by Max Brantley
A decision today by the 8th Circuit U.S. Court of Appeals indicates a willingness to stymie Minnesota's effort to overcome some of the ill effects of the Citizens United ruling that gave corporations personhood to engage in unlimited political spending.
Minnesota has continued a ban on direct corporate contributions to campaigns, a ban that is being challenged. But it also has imposed reporting requirements on money spent independently by associations, the key challenge in the lawsuit. The decision today is an interim one, but the majority of a deeply split en banc ruling overturned a three-judge panel's refusal to enjoin the stiffer reporting requirements. The majority indicated sympathy with the argument that the reporting requirement was unduly burdensome. Thus, if this view comes to full fruition, corporations and associations such as the anti-abortion group in this case will have even greater power than others, through the ability to spend unlimited amounts and not have to report how the money was spent or where it came from. For now, the ban on direct contributions stands. Circuit Judge Bobby Shepherd of El Dorado, sad but not surprising to report, sided with greater freedom for corporations.
A dissent signed by four judges said:
I believe the majority fails to fully apply the holding of Citizens United. Citizens United extensively discussed and relied upon two fundamental principles. First, corporations have a First Amendment right to speak through political contributions, and second, the voting public has a right to know where the money is coming from. In my view, the majority gives short shrift to this second fundamental principle of Citizens United. Failure to honor this important public interest leads it to hold that the carefully crafted Minnesota disclosure legislation is likely to be unconstitutional.
This is important developing law from a court that covers Arkansas. Big money — including even in Arkansas legislative races — is being spent independently to control legislative outcomes. If they can do it without limit and without disclosure requirements, the ills are obvious. The dissent said:
First, and most importantly, the state has an important interest in providing the voting public with information about which associations and corporations support particular issues and candidates. ... In elections, it is important for voters to hear directly from candidates and campaigns about their views on the issues. However, it is also important for voters to know which groups support or oppose a candidate or initiative; this information allows voters to better understand the political and practical ramifications of a ballot issue or the election of a candidate.
... Secondly, shareholders of corporations that engage in campaign-related speech possess a particular informational interest in disclosure. As partial owners of corporations, these people have an important interest, both politically and from a business perspective, in knowing about a corporation's campaign-related speech. ...
... Third, disclosure prevents improper or suspect relationships between elected officials and the persons or groups that support them. As the Supreme Court noted in Buckley, that "exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return."
... Finally, "and not least significant[ly]," disclosure requirements serve an important "means of gathering the data necessary to detect violations" of campaign finance laws.
I'm convinced. But I hold public interest over corporate interest, unlike the 8th Circuit majority, apparently.