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5th Cir.: Miss. Election Disclosure Law Is Constitutional

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By Mark Wilson, Esq. on November 17, 2014 1:14 PM

Well, the state of campaign finance laws isn't all bad. A month or so after the Tenth Circuit said that Citizens United didn't have to disclose the contributors to its film "Rocky Mountain Heist," the Fifth Circuit upheld the constitutionality of Mississippi's campaign disclosure requirements, reversing a district court order to the contrary.

The case centers on a state law that requires disclosure when a political committee advocating for a voter-initiated amendment to the state constitution receives a donation of over $200 from a single person in a given month or when a single, unaffiliated individual spends over $200 "to influence voters."

I Wanted to Contribute, but It Was Too Scary

The plaintiffs in this case (Libertarians, natch) wanted to pool their money to advocate for a proposed 2011 amendment to the Mississippi constitution that would prevent the government from seizing property via eminent domain and handing it over to a private developer a la Kelo v. City of New London.

The plaintiffs say they didn't contribute because they were frightened off by the "onerous and complicated disclosure requirements" that also created a "significant chilling effect" preventing them from exercising their First Amendment rights.

The plaintiffs here made both a facial and an as-applied challenge to the law. One problem, the Fifth Circuit pointed out, is that an as-applied challenge needs a "sufficiently concrete record" from which to conclude that the law was unconstitutionally applied to the plaintiffs.

In this case, the plaintiffs never actually raised the money, but their intent, as evidenced by past political involvement, was enough to get them standing. Not so much when it comes to an as-applied challenge; the law was never really applied against them. They said they planned to spend more than $200, but there was nothing in the record indicating how much above that amount they intended to spend.

You Get a Facial Challenge, but You Won't Like the Result

What about a facial challenge? That'll work, said the Fifth Circuit -- and then it was downhill from there for the Libertarians. Rejecting their argument that the law should be subject to strict scrutiny, the Fifth Circuit, in line with other circuits and the U.S. Supreme Court, instead adopted "exacting scrutiny" as the measure of campaign disclosure laws (basically intermediate scrutiny).

Applying this standard, the court said disclosing the identity of ballot supporters was "sufficiently important" to pass the test -- especially when it comes to ballot initiatives, in which there's no "straightforward proxy" for the possible identity of the donors as there is in partisan candidate elections. The court also found that the reporting requirements and the disclosure threshold were constitutional, as they addressed the government interest in transparency and weren't overly burdensome, especially compared to federal disclosure requirements, which are constitutional but even more complicated.

Hooray for transparency -- for now.

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