Yesterday, the Eighth U.S. Circuit Court of Appeals issued a split decision upholding Minnesota’s post-Citizens United campaign finance law. By a 2-1 vote, the court determined that even though the U.S. Supreme Court in Citizens United ruled corporations cannot be forced to form burdensome PACs in order to speak about elections, it is entirely ok for Minnesota to do the same thing. We’ve discussed the case before when it was filed last year.
Basically, the Eighth Circuit said that the regulations Minnesota imposes on PACs are not as burdensome as those at issue in Citizens United. The court latched onto Citizens United’s approval of some disclosure requirements in making this argument, stating that because Minnesota’s system serves the purpose of disclosure it is constitutional.
But there are two problems with this reasoning. First, the differences between Minnesota’s PAC regulations and those at issue in Citizens United are minimal. Each scheme requires speakers to appoint treasurers, complete and file detailed reports, and disclose all kinds of information. Second, the disclosure laws upheld in Citizens United were entirely separate from the PAC regulations it struck down and far less burdensome. So the Eight Circuit has essentially used one part of Citizens United as the grounds for ignoring another part of the decision.
Judge Riley, however, authored a terrific dissent that hopefully will inspire judges elsewhere to enforce the First Amendment and protect free speech. Among other things, he said “Under Minnesota’s scheme, a corporation is compelled to decide whether exercising its constitutional right is worth the time and expense of entering a long-term or even perpetual morass of regulatory red tape.” The Supreme Court held in Citizens United that the First Amendment does not allow government to impose that choice on speakers. It’s unfortunate that the two judges on the Eight Circuit did not understand that, but in the long run, we think other courts will.