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When Does a Campaign Ad Qualify as an 'Electioneering Communication'?

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By Jonathan R. Tung, Esq. on February 05, 2016 5:59 AM

Citizens United has been vilified by the media over the yeas as the case that encapsulated the infamous "money equals speech" mantra, a statement that has been postered as the cynical influence of shadowy money influencing politics. Well, the much skimmed over dicta of the case just got a shot in the arm by the Tenth Circuit.

According to the circuit, the public has an "informational interests" ala Citizens that requires disclosure of donors that pay for ads that even mention candidates in the days leading up to an election. And everybody likes disclosure, right?

"Electioneering Communications"

At issue are the nature of ads that expressly mention a candidate then up for election, but are not obviously "campaign related." Colorado law requires the disclosure (consistent with Citizens United) of donors who give more than $250 for "electrioneering communications" -- that is, ads that are clearly campaign communications to the public intended to boost one candidate or smear another. There is also an additional required element of the communication being made to the public within 60 days of the election.

Independence Inst. v. Williams: A Stance Against Citizens United?

In the relevant facts, Independence Institute (a conservative group operating in Colorado) wanted to run a set of ads that called on the electorate to contact the then incumbent governor of Colorado to audit the state's health insurance exchange. In that time, there was much talk about the inefficiency of how it was run. The ad was also made public within 60 days of a gubernatorial election.

"Informational Interest"

Independence resisted disclosure of its donors, arguing that disclosure would present a First Amendment violation. The ad, according to Independence, was not campaign related and even if it were, it was only tangential to the campaign.

To buttress its viewpoint, it also argued that the other circuit which had caused a Circuit-Nation split post Citizens had mistakenly refused to apply the clear language of Buckley v Valeo, in which modern disclosure rules would be limited to those ads that were "unambiguously campaign related."

Buckley v. Valeo: Long in the Tooth?

The problem is that even Buckley is beginning to show its age. Nevertheless, the Tenth Circuit kicked the issue and determined "sufficiently tailored disclosure requirements" would nevertheless allow the constitutional probing of donors consistent with Citizen's general policy of maintaining public trust in the integrity of the voting process.

In the words of the circuit, "We hold the Colorado disclosure requirements serve important government interests that are sufficiently tailored to justify the compelled disclosure of donors to the ad."

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