After struggle, 7th Circuit upholds Indiana campaign-ad law

Tuesday, March 30, 2004

A distinguished panel of federal judges struggled mightily with whether to uphold or strike down an Indiana law that requires a disclaimer for political ads that expressly advocate for or against candidates. They upheld the law, but the difficulty for such judicial luminaries as Richard Posner, Frank Easterbrook and William Bauer of the 7th U.S. Circuit Court of Appeals earlier this month was complicated by two major U.S. Supreme Court decisions that are not easily reconciled.

The Indiana law requires political ads to contain “a disclaimer that appears and is presented in a clear and conspicuous manner to give the reader or observer adequate notice of the identity of persons who paid for … the communication.” The law is designed to inform the electorate about who is funding the ads that support or attack candidates.

The issue gave the panel in Majors v. Abell the difficult task of reconciling two seemingly conflicting U.S. Supreme Court opinions — McConnell v. Federal Election Commission and McIntyre v. Ohio Elections Commission.

The 2003 McConnell decision, which upheld the vast majority of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA), ruled constitutional a provision of the BCRA that required the disclosure to the Federal Election Commission (FEC) of individuals who spend $10,000 for advertising in federal campaigns or who donate $1,000 or more to another person or group engaging in “electioneering communications.” However, in the 1996 McIntyre opinion, the high court struck down an Ohio law that prohibited the distribution of anonymous campaign literature in a case involving a local issue referendum, not a political campaign.

On the one hand, McIntyre holds that the government cannot prohibit the disclosure of all anonymous campaign literature. On the other hand, McConnell signified that at least in the area of campaign ads, individuals could be required to disclose their identity to the FEC (which in turn could release that information to the public upon request). To put it more simply, McIntyre struck down a disclosure law on First Amendment grounds, while McConnell upheld one.

The problem facing the 7th Circuit panel was in applying the McConnell precedent in the face of McIntyre. Unfortunately, the U.S. Supreme Court barely mentioned McIntyre in its McConnell opinion.

Judge Richard Posner — quite possibly the most prolific federal appeals court judge in terms of writing judicial opinions, books and other scholarly materials — wrote the majority opinion upholding the Indiana law. “Reluctant, without clearer guidance from the Supreme Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional,” he concluded in his March 15 opinion.

Judge Frank Easterbrook took the unusual step of writing a “dubitante” (expressing doubt) opinion. He opined that the Supreme Court’s “failure to discuss McIntyre [in the McConnell decision] … makes it impossible for courts at our level to make an informed decision — for the Supreme Court has not told us what principle to apply.”

Loyola of Los Angeles law professor Richard Hasen, who runs an election-law blog, wrote about these issues in a 2004 article for the Election Law Journal, “The Surprisingly Easy Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy.” Hasen wrote that “McConnell sheds little light” on the vitality of McIntyre. He concluded that “many other surprisingly complex disclosure questions remain to be solved by the lower courts.”

In an interview, Hasen said he understood the 7th Circuit’s hesitancy to rule on the issue in light of the McConnell decision’s failure to explain McIntyre. “I am a big believer in disclosure,” Hasen said. “I think that McIntyre at times has been interpreted in an overly broad way. The problem is that the Court did not explain the vitality of McIntyre in its latest decision.”

The case is not over. The attorney for the plaintiffs, Robbin Stewart, said in an interview that he would file a motion for reconsideration by the panel. “This decision extends McConnell,” he said. “It goes significantly past McConnell into a new area; it holds that McConnell overturns or narrows McIntyre.

Attorney Jay Ziemer, who helped defend the Indiana law, said, “I think the panel reached the right result and I am in agreement with the panel that we don’t have the best guidance from the Supreme Court as to how to deal with these issues at this point.”

It likely will take another Supreme Court decision to settle the fate of anonymous campaign expression. “It is a meritorious case that should be sent forward to the Supreme Court,” Stewart said.

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