Deregulate but Still Disclose?: Disclosure Requirements for Ballot Question Advocacy After Citizens United v. FEC and Doe v. Reed

By:  Sean McMahon

 

A relatively unheralded aspect of the Supreme Court’s controversial decision in Citizens United v. FEC is its strong affirmation of the constitutionality and utility of disclosure requirements for individuals and groups engaged in political advocacy. In both Citizens United and Doe v. Reed, decided a few months later, the Court issued prodisclosure holdings indicating its support for such laws. Nevertheless, the federal circuit courts of appeals disagree over whether disclosure requirements imposed on advocacy for ballot questions and referenda can be as strong as disclosure requirements imposed on advocacy for candidates. In Human Life of Washington Inc. v. Brumsickle, the Ninth Circuit upheld Washington’s disclosure requirements for issue committees dedicated to supporting or defeating ballot measures. The Tenth Circuit, however, took a different approach in Sampson v. Buescher, holding that disclosure requirements similar to those upheld in Brumsickle were unconstitutional as applied to the plaintiffs. The courts’ disagreement centers on the relative values of the informational and anonymity interests at stake in the context of ballot questions. This Note endorses an approach that is most similar to that taken in Brumsickle, while maintaining the Sampson court’s sensitivity to the burdens placed on very small advocacy groups.

 

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