Posted June 5, 2009 by Paul S. Ryan

Legal Center Files Amicus Brief in Washington State Disclosure Case

The Campaign Legal Center yesterday filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit in Human Life of Washington, Inc. (HLW) v. Brumsickle.  HLW challenges on constitutional grounds several components of the State of Washington’s political committee disclosure regime, including the State’s definitions of “political committee,” “independent expenditure,” and “political advertising.”  The District Court correctly rejected HLW’s challenges to these disclosure provisions, but in doing so, the Court considered itself bound by the Ninth Circuit’s application of strict scrutiny to disclosure provisions in two prior decisions—Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003) (CPLC I) and Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172 (9th Cir. 2007) (CPLC II).

The Ninth Circuit’s decision to apply strict scrutiny to disclosure laws in CLPC I and CPLC II was based on the Court’s reading of the Supreme Court’s decision in FEC v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986).  Although the challenged provisions of Washington law are constitutionally valid even under strict scrutiny, the Legal Center argues in its brief the Ninth Circuit erred in declaring that the MCFL Court had subjected disclosure and reporting provisions of the Federal Election Campaign Act (FECA) to strict scrutiny.

The MCFL Court did not apply strict scrutiny to the disclosure laws; indeed, the Court did not apply any scrutiny at all to disclosure laws because no disclosure laws were challenged by MCFL.  It is for this reason that the Legal Center urges the Ninth Circuit to correct the errors it made in CLPC I and CPLC II and make clear that under the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976), and its progeny, campaign finance disclosure requirements are subject to intermediate scrutiny.

The Legal Center brief also takes aim at HLW’s claims that the Supreme Court’s decision in FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (WRTL II), is relevant to its challenge of disclosure laws.  The Legal Center argues that WRTL II has no bearing on HLW’s case.  Like MCFL, the Legal Center argues, WRTL II entailed a challenge to a federal law prohibition on corporate political spending and did not entail a legal challenge to any disclosure requirements.  The Supreme Court in WRTL II had no reason to, and in fact did not, determine the constitutionality of any disclosure laws; nor did the Court opine on the appropriate degree of scrutiny under which to examine disclosure laws.

Similarly, the Legal Center urges the Ninth Circuit to disregard HLW’s claim that its made-up “unambiguously campaign related” standard should govern the Ninth Circuit’s analysis of the challenged provisions—because the “unambiguously campaign related” standard advanced by HLW is not a constitutional standard used by the Supreme Court, but is instead a legal argument merely invented by HLW.

Instead of compounding the mistakes of CLPC I and CPLC II and further muddying the waters by incorporating into Ninth Circuit case law the misapplication of WRTL II or HLW’s made-up “unambiguously campaign related” standard, the Legal Center urges the Ninth Circuit Court to apply intermediate scrutiny, not strict scrutiny, to the challenged provisions and to affirm the well-reasoned analysis of the District Court rejecting HLW’s arguments.