Eugene Mei, Longmont City Attorney, insists that a recent decision by the U.S. 10th Circuit Court of Appeals in Sampson v Buescher makes it necessary to eliminate ballot issue reporting. His reading of the ruling more than suggests that the man is afraid. Is he afraid of lawsuits? Or is he afraid of a council majority who was thrilled at the Citizens United ruling that legalized corporate personhood, a council that would just as soon remove all campaign reporting, but likely worries at least a little about political backlash. Remember – the City Attorney serves at the will of the City Council.
Oversimplified, the ruling held that the application of the requirements to a committee that raised less than $1000 violated its members’ right to freedom of association.
But the ruling was not as cut and dried as Mei persists in asserting.
Council Member Sarah Levison provided a thoughtful presentation covering this case, the Citizens United case and the Doe v Reed ruling that allows for more breadth that the absolutist interpretation offered by our City Attorney.
Levison discussed the ruling with a number of authoritative organizations and entities. However, off camera, Eugene Mei boldly asserted, “I don’t care about people’s credentials. I’m not impressed.”
The ruling in Sampson v Buescher held that disclosure requirements were allowed when an organizations’ freedom of association was not significantly attenuated or when the contributions and expenditures are slight. [emphasis added] The court ruled that there was virtually “no proper governmental interest in imposing disclosure requirements on a ballot-initiative committees that raise so little money.” [emphasis added]
The case adjudicated covered monetary and in-kind contributions in the amount of $782.02 made by five people. And it was applied under the state regulations covering statutory towns, not home rule towns like the City of Longmont. Longmont’s issue committee regulations clearly do not require an attorney or rocket scientist to comprehend.
The subject case involved an annexation of a subdivision in unincorporated Douglas County into the Town of Parker. There were those who wanted it and those who didn’t. Those who wanted the annexation brought suit against the No-Annexation five for failure to register and comply with state regulations.
Their suit was as much about harassing those opposed to the annexation as it was about the law. However, the 10th Circuit failed to see or acknowledge the underlying motivation. The pro-annexation leaders followed their complaint with a subpoena with nine requests. As an example, one of the requests was for “All communications amongst [Plaintiffs] or anyone else concerning the issue of annexation of Parker North into the Town of Parker, Colorado. A lower court refused to quash the subpoena but did apply certain minimal limitations.
Further strong arming was evident by the pro-annexation original plaintiffs when they proposed a “non-negotiable offer of settlement.” The settlement required that the anti-annexation defendants “admit all charges against them and would either abandon their organized opposition to the annexation (including removing all signs and campaign material) or follow all laws governing issue committees.” The settlement offer allowed for only four days to respond.
Apparently having had enough the anti-annexation five filed their own suit alleging first amendment violations of free speech and free association.
The 10th Circuit discussed the Supreme Court’s recognition of “three proper justifications for reporting and disclosing campaign finances.” The third is extremely relevant to ballot issues and speaks to “informational interest.” The Court recognized that there was need to “analyze the public interest in knowing who is spending and receiving money to support or oppose a ballot issue.”
The 10th Circuit acknowledged that “the U.S. Supreme Court has sent a mixed message on ballot issues.” It further acknowledged that “the Court has never rejected a First Amendment challenge to a financial-disclosure requirement in the ballot-issue context,” although it has “spoken favorably” on three occasions. The 10th circuit court also acknowledged that “not all burdens on freedom of association are unconstitutional.”
The 10th Circuit’s ruling speaks out of both sides of its mouth. On the one hand it states, “It is not obvious that there is … a public [information] interest.” Yet it cites the Supreme Court ruling in the Massachusetts Bellotti case that stated that the people “may consider, in making their judgment, the source and credibility of the advocate.” That case appended a footnote saying that “[i]dentification of the source of advertising may be required as a means of disclosure, so that people will be able to evaluate the arguments to which they are being subjected.” In that case, the Court wrote, “The integrity of the political system will be adequately protected if contributors are identified in a public filing revealing the amounts contributed; if it is thought wise, legislation can outlaw anonymous contributions.”
In the Colorado Buckley case, the “Court, without distinguishing between candidate and ballot-issue campaigns, wrote…that disclosure provides the electorate with information as to where political campaign money comes from and how it is spent, thereby aiding electors in evaluating those who seek their vote.” It went on to state that “disclosure requirements” expose “large contributions and expenditures to the light of publicity.” In Buckley, the Court affirmed that “the State legitimately requires sponsors of ballot initiatives to disclose who pays…and how much.”
After all the back and forth in the ruling of the 10th Circuit in Sampson v Buescher, the court comes back to “when contributions and expenditures are slight.” And it comes back to the requirements of the Colorado Statute, a statute that applies to statutory towns and home-rule towns in the absence of town ordinance.
In conclusion the 10th Circuit states: “Here, the financial burden of state regulation on Plaintiffs’ freedom of association approaches or exceeds the value of their financial contributions to their political effort; and the governmental interest in imposing those regulations is minimal, if not nonexistent, in light of the small size of the contributions. We therefore hold that it was unconstitutional to impose that burden on Plaintiffs.” [emphasis added]
And lastly the court says, “We do not attempt to draw a bright line below which a ballot-issue committee cannot be required to report contributions and expenditures….We say only that Plaintiff’s contributions and expenditures are well below the line.”