Source: Westlaw Insider July 27, 2011
The Supreme Court’s 2010 decision Citizens United v. FEC left many states scrambling to amend their election laws to comply with the ruling.
According to a lawsuit brought last year, though, Minnesota didn’t do a good enough job.
The lawsuit was brought by three advocacy groups – Minnesota Citizens Concerned for Life, the Taxpayers League of Minnesota, and Coastal Travel Enterprises – seeking a declaration that Minnesota’s amended laws are unconstitutional.
How are they unconstitutional?
According to the plaintiffs, they are just as burdensome to corporations as the laws struck down in Citizens United.
Specifically, the plaintiffs contend that Minnesota still bans corporate independent expenditures (in defiance of the Citizens United ruling) by requiring corporations to establish “funds” to make such expenditures.
In addition, the plaintiffs also allege that Minnesota’s corporate disclosure requirements are burdensome enough to create an effective ban on independent expenditures.
To determine if Minnesota’s laws truly run afoul of the Citizens United ruling, we have to look at what the ruling says on the issues.
First, the Court held that the government may not force corporations to only speak through separate political action committees (PACs), mainly because they are “burdensome alternatives” to directly speaking (directly paying for public messages).
Because PACs are subject to federal regulation requiring extensive accounting, reporting, administration, and disclosure.
The plaintiffs here are claiming that Minnesota’s requirement that a corporation establish a “fund” to finance their speech is effectively as burdensome.
While the fund doesn’t need to be separate from the corporation, there are some accounting and disclosure requirements that affect the fund.
However, these requirements are much more lenient than federal PAC ones, mostly consisting of financial disclosures.
While Minnesota, like federal PAC regulations, requires the fund have an appointed treasurer, the treasurer can be a corporate employee, and the responsibilities of the treasurer are minor.
Regardless, do Minnesota’s restrictions bear enough similarities to federal PAC restrictions to make them invalid?
According to the federal appeals court that denied the plaintiffs’ request for an injunction, Minnesota’s regulations are much closer to the disclosure requirements specifically upheld in Citizens United.
When the appeals court compared Minnesota’s law to those federal requirements, they appear very similar (and probably intentionally so).
A major reason the Citizens United ruling upheld the disclosure laws was because Citizens United didn’t produce any evidence to support its argument that the requirements subjected its donors to harassment and reprisal.
Is the current case any different? Actually, very possibly.
Last year, freshly empowered by the Citizens United ruling, Target Corporation made a $150,000 donation to MN Forward, a group that supported unsuccessful Minnesota gubernatorial candidate Tom Emmer.
Emmer, a Tea Party-backed Republican, was known for his openly anti-gay political positions.
The disclosure of this donation to the public lead to a massive nationwide boycott of Target stores, attacks from gay advocacy groups, and some generally negative treatment in the public light.
While those responses may simply be categorized as forms of constitutionally-protected speech, even if that isn’t the case, the Citizens United ruling still found a strong government interest in requiring disclosure, possibly counterbalancing those “reprisals.”
Even though an appeals panel ruled for Minnesota in May 2011, the ruling was recently vacated for a hearing before the full appeals court in September.
Will that ruling come out any differently?
That’s hard to say, but given how deeply unpopular Citizens United has become, it’s unlikely the appeals circuit would rule to broaden Citizens United’s scope.
Either way, the losing party is sure to petition the Supreme Court for certiorari, at which point we’ll have a definitive answer on the issue.