The campaign finance reform lobby continues to favor expanding and vigorously enforcing campaign finance disclosure. Although it has found little success at the federal level in recent years—in large part thanks to a principled bloc of commissioners at the Federal Election Commission—many states have expanded disclosure to require groups of citizens to register and regularly reporting with the government to engage in many forms of political speech. Since the Supreme Court has shown no interest in considering recent broad or narrow challenges to disclosure regimes, we are in a bit of a nationwide free-for-all. Fortunately, as some states expand disclosure, in some courts a long-recognized protection against including de minimis spending within disclosure’s reach is alive and well.
De minimis means “so minor as to merit disregard.” Americans understand the concept, though many, perhaps, only instinctively. The reason your state might ask you to round to the nearest dollar when you’re filling out your tax return? De minimis. The reason the IRS does not require you to keep receipts to deduct charitable donations that are less than $250? De minimis. The reason there are no official rules governing the penny tray at 7-Eleven? De minimis. It is fairly self explanatory, but given the very idea has found itself enshrined in the title of a self-help book (Don’t Sweat the Small Stuff), it is far from a universally accepted principle. The campaign finance reform lobby is one that sweats the small stuff.
Earlier this month, our friends at the Center for Competitive Politics won a case at the Tenth Circuit Court of Appeals, Coalition for Secular Government v. Williams (CSG). The opinion re-affirms that, under the First Amendment, we must respect a balance between campaign disclosure and the burdens it places on speakers. The court rightly recognized that it is not really important to know who’s spending $20 or even few hundred dollars to support political speech about a ballot measure—that is, it’s de minimis. At the same time, it’s a lot of work—especially for grassroots organizations—to track and report such spending just to make their opinions known. It can easily cost small groups more money to pay accountants and lawyers to fill out campaign finance forms than they would actually spend on political speech. Disclosure is burdensome, and should not be required for de minimis political spending.
But just how high does de minimis go? The CSG decision sets a bar that’s distinct from other recent cases. Just a few years ago a federal court in Maine upheld a fine against a blogger who did not put a disclaimer on a political blog that only cost $90 in web hosting fees. The court ruled de minimis did not apply. In CSG, however, the Tenth Circuit ruled $3,500 in total spending was, in fact, de minimis and “mismatched” to the burdens of disclosure. This builds on a previous Tenth Circuit decision, Sampson v. Buescher, in which a group only spent about $2,000 to speak against a ballot proposal.
Both Sampson and CSG are great decisions, but far from perfect and farther still from the norm. Each case resulted in an as-applied ruling, which, in Colorado, means they do not protect organizations other than the ones that brought a lawsuit. Colorado state courts and the legislature have resisted updating their campaign laws to conform with these federal First Amendment rulings. This is in part because the reform lobby—particularly, Common Cause in the CSG case and the Brennan Center in Sampson—are wholly invested in preserving disclosure, no matter the ridiculously low amounts of money at issue and how well-documented its burdens. In CSG the burdens were particularly well-documented, because the attorneys at Center for Competitive Politics took the case all the way through trial, building an extensive factual record. But this cost money that certainly cannot be matched by every small organization that does not benefit from pro bono representation from a free speech law firm. (The case likely cost hundreds of thousands of dollars in legal fees.) The fallout from CSG will, hopefully, break the state’s disclosure quagmire.
A panel of the D.C. Circuit Court of Appeals recently opined that when it comes to the tension between disclosure and free speech, something’s gotta give. With more cases like CSG in the Tenth Circuit, this may occur without the Supreme Court, at least as far as de minimis exceptions. So, although expansive disclosure might benefit from fresh, focused scrutiny from our highest court, at least this year the federal appellate courts have affirmed that, like every other facet of campaign finance regulation, disclosure answers to free speech.