The Eighth Circuit issued a sharply divided 6-5 opinion yesterday temporarily blocking Minnesota's campaign finance disclosure rules for organizations making independent expenditures advocating the election or defeat of a candidate. In so doing, the court handed a major victory to corporations seeking to buy elections under the cloak of darkness.
Under Citizens United, the people of Minnesota are powerless to limit corporate independent expenditures to affect elections. However, eight of the nine Justices in that case also upheld reporting requirements. All but Clarence Thomas recognized that reporting requirements serve the American people's important interest in knowing who is affecting our elections, while allowing covered entities to continue making their expenditures.
As Ian Millhiser writes at ThinkProgress:
The most Republican federal court of appeals in the country just wiped away much of this silver lining [of Citizens United], however, striking down a Minnesota law requiring corporations seeking to buy elections to register their political fund and make regular public disclosures of its activities.
In an opinion joined by six of the court's Republican appointees, the U.S. Court of Appeals for the Eighth Circuit effectively reduced the Supreme Court's endorsement of disclosure laws into a ban on disclosure rules that corporations might find inconvenient[.]
Indeed, the majority focused heavily on the burden allegedly placed on organizations to comply with the reporting requirements, steps that the Minnesota legislature had decided were necessary to most effectively serve the need of keeping the public informed. The dissenters wrote that:
In the end, the majority's conclusion of a likely constitutional violation solely centers on the reporting requirement for those associations that choose not to terminate the fund but conduct no activity during the reporting period. The majority concludes that filing a single-page form and checking one box once in non-election years and five times in an election year imposes an undue burden on speech. I respectfully disagree and do not believe Minnesota's check-the-box requirement rises to the level of a constitutional violation.
[T]he 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.
With the narrow court majority putting a hold on the disclosure law, it will be easier for corporate interests to influence elections in that state under cover of darkness. The entire state legislature is on the ballot this fall, as are referenda on voter ID and marriage equality.