Minnesota Citizens Concerned for Life, Inc. v. Swansonand Disclosure Burdens: Does Getting Corporations to Talk Suppress Their Speech?

• Publication year: 2021

91 Nebraska L. Rev. 706. Minnesota Citizens Concerned for Life, Inc. v. Swansonand Disclosure Burdens: Does Getting Corporations to Talk Suppress Their Speech?

Minnesota Citizens Concerned for Life, Inc. v. Swanson(fn1) and Disclosure Burdens: Does Getting Corporations to Talk Suppress Their Speech?

Note

TABLE OF CONTENTS

I. Introduction..........................................707

II. Background...........................................709
A.The Theory and Principles Underlying Disclosure .......................................709
B.A History of Legislative Regulation of Campaign Finance Through Disclosure .......................710
C.Minnesota Citizens Concerned for Life, Inc. v. Swanson..........................................715
1.Factual and Procedural History: Backlash from Citizens United ................................ 715
2.Holding: Majority and Dissent on the Extent of a Burden ...................................... 717

III. Analysis .............................................. 720
A. Minnesota's Independent Expenditure Disclosure Laws-Consistent with Citizens United or a Burdenon Corporations? .................................. 721
1. Avoiding Strict Scrutiny: A Search for the Purpose of Ongoing Reporting.................. 726

1

2. Withstanding Exacting Scrutiny: Tailoring a Burden to Disclosure .......................... 729
B. Disclosure Requirements: The Fading Regulatory Tool............................................... 732

IV. Conclusion............................................ 735

I. INTRODUCTION

Tommy and Joey are aging musicians still trying to make it big in Minnesota's Twin Cities.(fn2) Though not in business together, they share studio space in the same building through separate leases. In addition to their music, they also share a passion for limited government and deficit reduction, which bleeds into their songs of governmental intrusion and excessive taxation. Unhappy with Minnesota Governor Mark Dayton's handling of the state's government shutdown in the summer of 2011, the pair decides the governor has to go. However, the two are unable to agree on any aspects of a protest song save for its theme. Instead, Tommy determines that because their studio space adjoins a hallway all studio visitors must walk through, such an arrangement is ideal for posting signs advocating for Governor Dayton's defeat in the next election. Having little to no graphic design experience, Joey takes this idea to the local Minneapolis College of Art and Design, where he makes a deal with a student to design some signs. Including the costs for materials and labor, the total price for the job tallies at $105. Finding the price reasonable and the signs admirable, Tommy and Joey purchase and hang them up.

A few days later, another musician, Alex, sees the signs for the first time. Both a supporter of wide social safety nets and a local activist who has some familiarity with election law, he files a complaint with the Minnesota Campaign Finance and Public Disclosure Board detailing Tommy and Joey's election activity. They soon receive a strongly-worded letter from the Board warning them of a possible violation of Minnesota's campaign finance laws for which they are being audited.(fn3) Because the pair worked together on the signs, they are an association required by Minnesota law to form a fund and register with the state for any independent expenditures exceeding $100. Furthermore, either Joey, Tommy, or a third party has to become the fund's treasurer, who must fill out a form disclosing the fund's contributors and expenditures. This, however, is not the only report. The

2

two dodged a bullet, because 2011, which is not a general election year, only requires one report from them. But if they do not file a termination of the fund in 2012, they will have to file five more reports. Moreover, following a quick study of the law, the two musicians could not determine whether terminating the fund meant they were legally obligated to take down their signs, too. when the pair made a decision to exercise their political speech, they could not have imagined the extensive regulations thereby implicated.

Minnesota's laws are particularly interesting and potentially divisive because, following the seminal Citizens United v. FEC decision,(fn4)they are perhaps the most extensive of any state disclosure laws in effect to be deemed unconstitutional.(fn5) This Note considers the narrow question of whether, when viewed through the lens of political reality, Minnesota's disclosure laws regulating independent expenditures, particularly one requiring ongoing periodic reporting, cross the line from a mere administrative cost to a burden chilling the free speech of associations. Part II of this Note first examines the principles of disclosure and the legislative regulation of elections through disclosure throughout United States history alongside Supreme Court precedent interpreting those laws. This leads into Minnesota pushing back against Citizens United by subsequently enacting several disclosure laws. Part III argues that the majority in Minnesota Citizens incorrectly held that the plaintiffs were likely to succeed in a challenge that the laws were unconstitutional. In its quest to protect all associations from speech regulation, the majority overstated the actual burden of these disclosure laws out of fear they could hypothetically cause hesitation in spending money as political speech. Such a decision does not account for political theory and reality, and the truth is that the effect of such a ruling is an elimination of one of the few remaining mechanisms to regulate elections. Part IV concludes by emphasizing that the majority was mistaken in its narrow approach to this issue and that these disclosure laws should have been upheld.

3

II. BACKGROUND

A. The Theory and Principles Underlying Disclosure

Disclosure, as it applies in the electoral context, can be defined as government-required divulgement of information to "help [citizens] make informed choices in the political marketplace."(fn6) It is a concept central to our democracy and one recognized early and supported in our nation's history.(fn7) Early in the twentieth century, future Supreme Court Justice Louis Brandeis recognized in an oft-quoted statement that "[p]ublicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."(fn8) Furthermore, disclosure is the most widely adopted regulatory device for elections in democratic nations.(fn9)

The basic tenet underlying disclosure is anticorruption. The ability to purchase political access or influence is "antithetical to our ideal of equal citizenship."(fn10) With the enhanced capability to bankroll a campaign or indirectly support one, the wealthy and corporate or other concentrations of wealth have advantages both in money and political power over the unaligned masses. Mitigating this potential political corruption requires a democracy to "draw[] a line, marking a political sphere within which the power relationships of the market are kept under democratic control."(fn11) Disclosure thus plays an important role, because the citizenry, armed with knowledge about campaign contributions, can hold candidates accountable for such influence.(fn12) Alarmingly, the United States Supreme Court has whit

4

tled away at the anticorruption principle in the context of independent expenditures.(fn13)

Disclosure also serves an idealistic belief that government transparency is essential. This idea is that knowledge of which interests give how much money to elected officials is as "necessary for the success of representative democracy as open meeting laws, public access to government records, lobbying regulation, and government ethics laws."(fn14)

Moreover, disclosure may be the preferred alternative in campaign finance for both politicians and industry, because it exposes, rather than limits, corporate influence.(fn15) It allows the public, not the government, to determine whether campaign expenditures are corrupt.(fn16)Of course, this conclusion rests on the assumption that the citizenry cares.(fn17) Disclosure requirements serve little purpose if Americans do not act on the information provided to them through protest or the voting booth.

B. The History of Legislative Regulation of Campaign Finance Through Disclosure

State disclosure laws have existed since the late nineteenth century, and quickly following them was one of the first federal disclosure laws-the Publicity and Political Contributions Act of 1910. That law required limited disclosure of contributions for members of the House of Representatives.(fn18) Other requirements were soon added to the mandate of the 1910 disclosure laws, including an increase in the number of disclosure reports as required by the Federal Corrupt Practices Act of 1925.(fn19) While these early laws were poorly drafted and

5

clumsily enforced, they established an obligation of disclosure to the public revealing where money came from and how it was spent.(fn20)

Early Supreme Court decisions upheld these disclosure laws and provided cleaner analysis than future cases because only direct contributions to candidates implicated disclosure.(fn21) However, a different form of campaign finance, now known as "independent...