Delaware Strong Families v. Biden et al

Filing 35

MEMORANDUM OPINION granting 22 Motion for Preliminary Injunction. No order shall be executed until the court has conferred with the parties at the scheduled April 1, 2014 telephonic status conference. Signed by Judge Sue L. Robinson on 3/31/2014. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DELAWARE STRONG FAMILIES,
Plaintiff,

v.
JOSEPH R. BIDEN Ill, in his official
capacity as Attorney General of the
State of Delaware; and ELAINE
MANLOVE, in her official capacity as
Commissioner of Elections for the
State of Delaware,
Defendants.

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) Civ. No. 13-1746-SLR
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David E. Wilks, Esquire of Wilks, Lukoff & Bracegirdle, LLC, Wilmington, Delaware.
Counsel for Plaintiff Delaware Strong Families. Of Counsel: Allen Dickerson, Esquire
and Zac Morgan, Esquire of the Center for Competitive Politics.
Joseph C. Handlon, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants. Of Counsel: Randolph D. Moss,
Esquire, Jonathan G. Cedarbaum, Esquire and Weili J. Shaw, Esquire of Wilmer Cutler
Pickering Hale and Dorr LLP and J. Gerald Hebert, Esquire, PaulS. Ryan, Esquire and
Megan McAllen, Esquire of The Campaign Legal Center.

MEMORANDUM OPINION

Dated: March 31, 2014
Wilmington, Delaware

I. INTRODUCTION

Plaintiff Delaware Strong Families ("DSF") has filed a verified complaint seeking
a judgment to prevent enforcement of certain provisions of the Delaware Election
Disclosures Act ("the Act"), 15 Del. C.§ 8001, et seq., which became law on January 1,
2013. Prior to its enactment, Delaware's election laws did not regulate nonprofit
corporations like DSF. In 2012, DSF distributed a voter guide 1 over the Internet within
60 days of Delaware's general election. DSF plans to engage in similar activity before
the 2014 general election, and expects to incur costs over $500 in doing so. Under the
Act, DSF's activities, including the publication of its voter guide, will be within the
regulatory purview of the State Commissioner of Elections ("the Commissioner") and
the Attorney General of the State of Delaware, defendants at bar.
More specifically, § 8031 (a) of the Act requires that "[a]ny person ... who makes
an expenditure for any third-party advertisement that causes the aggregate amount of
expenditures for third-party advertisements made by such person to exceed $500
during an election period shall file a third-party advertisement report with the
Commissioner." 15 Del. C. § 8031 (a). The report includes, inter alia, the names and
addresses of each person who has made contributions to the "person" in excess of
$100 during the election period. "Person" includes "any individual, corporation,
company, incorporated or unincorporated association, general or limited partnership,
society, joint stock company, and any other organization or institution of any nature."
15 Del. C. § 8002(17). "Third-party advertisement" means "an independent expenditure

1

Attached to the complaint (D.I. 1) as exhibit A.

or an electioneering communication." 15 Del. C. § 8002(27). "Electioneering
communication" means "a communication by any individual or other person (other than
a candidate committee or a political party) that: (1) Refers to a clearly identified
candidate; and (2) Is publicly distributed within 30 days before a primary election or
special election, or 60 days before a general election to an audience that includes
members of the electorate for the office sought by such candidate." 15 Del. C. §
8002(1 O)a.
According to the legislative history of the Act, its focus was on "clos[ing]
loopholes about the transparency of third-party ads" by "better regulat[ing]
electioneering communications by third-parties," particularly as to "how the third party
receives funding and where that money goes." (D.I. 30, ex. 1, Del. House Admin.
Comm. Minutes, House Bill No. 300 (May 2, 2012)) Also apparent from the legislative
history is a concern about the power vested in the Commissioner "to make an
exemption without any stipulations or guidelines as to how [she] can make exemptions.
As a result, the state is delegating broad authority to a single person, and this could
result in potential long-term problems." (/d.) In this regard, 15 Del. C. § 8041 (1 )c gives
the Commissioner the power to "adopt[ ] any amendments or modifications to the
statements required under§ 8021 of this title, or exemptions from the requirements
thereunder." 15 Del. C. § 8041 (1 )c.
The court has jurisdiction over the matter pursuant to 28 U.S.C. § 1331, as the
action arises under the First and Fourteenth Amendments to the United States
Constitution. Venue in this court is proper under 28 U.S.C. § 1391 (b )(1) and (b )(2).

II. STANDARD OF REVIEW

2

In the Third Circuit, "[f]our factors determine whether a preliminary injunction is
appropriate: (1) whether the movant has a reasonable probability of success on the
merits; (2) whether the movant will be irreparably harmed by denying the injunction; (3)
whether there will be greater harm to the nonmoving party if the injunction is granted;
and (4) whether granting the injunction is in the public interest." B.H. v. Easton Area
Sch. Dist., 725 F.3d 293, 302 (3d Cir. 2013) (internal citation and quotation marks

omitted); see also N.J. Retail Merchs. Ass'n. v. Sidamon Eristoff, 669 F.3d 374, 385386 (3d Cir. 2012); Hes v. de Jongh, 638 F.3d 169, 172 (3d Cir. 2011 ). A preliminary
injunction is "an extraordinary remedy," which "should be granted only in limited
circumstances." Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d
2004) (citation omitted).

Ill. DISCUSSION
A. Analytical Framework
The regulation of campaign finances has a long history. The dispute at issue,
therefore, cannot be adequately addressed without an understanding of the analytical
framework established by Supreme Court precedent on campaign finance regulation.
1. Buckley v. Val eo ("Buckley")
The court starts its review of such with the decision in Buckley v. Valeo, 424 U.S.
1 (1976), where the United States Supreme Court addressed various challenges to the
Federal Election Campaign Act of 1971 ("FECA"), as amended in 1974. Appellants in
Buckley did not challenge the disclosure requirements of FECA, 2 U.S.C. §§ 431, et
seq., asperse unconstitutional; they instead argued that several provisions were over-

3

broad as applied to contributions: (a) to minor parties and independent candidates; and
(b) by individuals or groups other than a political committee or candidate. Of import to
the disclosure requirements at bar, the Court explored the general principles related to
the challenged reporting and disclosure requirements, to wit: The Court has
"repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy
of association and belief guaranteed by the First Amendment." /d. at 64. The Court
has
long ... recognized that significant encroachments on First Amendment rights
of the sort that compelled disclosure imposes cannot be justified by a mere
showing of some legitimate governmental interest. Since NAACP v.
Alabama we have required that the subordinating interests of the State must
survive exacting scrutiny. We also have insisted that there be a "relevant
correlation" or "substantial relation" between the governmental interest and
the information required to be disclosed.

/d. (citations omitted). The Court reiterated the fact that
[t]he right to join together "for the advancement of beliefs and ideas" ... is
diluted if it does not include the right to pool money through contributions,
for funds are often essential if "advocacy" is to be truly or optimally "effective."
Moreover, the invasion of privacy of belief may be as great when the
information sought concerns the giving and spending of money as when it
concerns the joining of organizations, for "[f]inancial transactions can reveal
much about a person's activities, associations, and beliefs."
/d. at 65-66 (citations omitted). In addressing the other side of the scale, the Court

identified the governmental interests sought to be vindicated by the disclosure
requirements: (1) providing the electorate with information '"as to where political
campaign money comes from and how it is spent by the candidate' in order to aid the
voters in evaluating those who seek federal office;" (2) "deter[ring] actual corruption
and avoid[ing] the appearance of corruption by exposing large contributions and
expenditures to the light of publicity;" and (3) serving as "an essential means of

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gathering the data necessary to detect violations of the contribution limitations"
described elsewhere in the statute. /d. at 66-68. The Court went on to conclude that
disclosure requirements, "as a general matter, directly serve substantial governmental
interests" and appear, "in most applications," "to be the least restrictive means of
curbing the evils of campaign ignorance and corruption that Congress found to exist."
/d. at 68.

With respect to FECA's reporting and disclosure requirements as applied to
minor parties and independents, the Court concluded that, absent evidence of a
"reasonable probability that the compelled disclosure of a party's contributors' names
will subject them to threats, harassment, or reprisals from either Government officials or
private parties," id. at 74, "the substantial public interest in disclosure identified by the
legislative history of [FECA] outweighs the harm generally alleged." /d. at 72.
In considering the disclosure provision applicable to individual contributions, 2
attacked by appellants as "a direct intrusion on privacy of belief," the Court noted that it
"must apply the same strict standard of scrutiny, for the right of associational privacy ...
derives from the right of the organization's members to advocate their personal points
of view in the most effective way." /d. at 75 (citations omitted). According to the Court,

§ 434(e) was
part of Congress' effort to achieve "total disclosure" by reaching "every kind
of political activity" in order to insure that the voters are fully informed and

2

Section 434(e) required "[e]very person (other than a political committee or
candidate) who makes contributions or expenditures" aggregating over $100 in a
calendar year, "other than by contribution to a political committee or candidate," to file a
statement with the Commission requiring direct disclosure of what such individual or
group contributes or spends. See Buckley, 424 U.S. at 74-75.

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to achieve through publicity the maximum deterrence to corruption and
undue influence possible ....
In its efforts to be all-inclusive, however, the provision raises serious
problems of vagueness, particularly treacherous where, as here, the violation
of its terms carries criminal penalties and fear of incurring these sanctions
may deter those who seek to exercise protected First Amendment rights.

/d. at 76-77. More specifically,§ 434(e) applied to "[e]very person ... who makes
contributions or expenditures." "Contributions" and "expenditures" were defined under
FECA "in terms of the use of money or other valuable assets 'for the purpose of . ..
influencing' the nomination or election of candidates for federal office. It [was) the
ambiguity of this phrase that pose[ d) constitutional problems" for the Court. /d. at 77
(emphasis added).
With the constitutional requirement of definiteness at stake in the context of First
Amendment rights, the Court recognized that, "to avoid the shoals of vagueness," it had
the obligation to construe the statute with a heightened degree of specificity. /d. at 7778 ("Where First Amendment rights are involved, an even 'greater degree of specificity'
is required."). Harking back to Congress' intent to ferret out and prevent electionrelated corruption, the Court explained that, when the maker of a contribution or of an
expenditure is not a political committee or a candidate presumably focused on the
nomination or election of a candidate for political office, "the relation of the information
sought to the purposes of [FECA] may be too remote. To insure that the reach of§
434(e) is not impermissibly broad, we construe 'expenditure' for purposes of that
section ... to reach only funds used for communications that expressly advocate the
election or defeat of a clearly identified candidate. This reading is directed precisely to

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that spending that is unambiguously related to the campaign of a particular federal
candidate." /d. at 79-80. The Court concluded that"§ 434(e), as construed, bears a
sufficient relationship to a substantial governmental interest. As narrowed,§ 434(e) ..
. does not reach all partisan discussion for it only requires disclosure of those
expenditures that expressly advocate a particular election result." /d. at 80 (emphasis
added).
2. McConnell v. FEC ("McConne/1'1
The Supreme Court in McConnell v. Federal Election Commission, 540 U.S. 93
(2003), addressed the Bipartisan Campaign Reform Act of 2002 ("BCRA"), which
amended FECA and other portions of the United States Code. "In enacting BCRA,
Congress sought to address three important developments in the years since th[e]
Court's landmark decision in Bucke/y v. Valeo . .. : the increased importance of 'soft
money' [and] the proliferation of 'issue ads,' [as detailed in] findings of a Senate
investigation into campaign practices related to the 1996 federal elections." /d. at 93.
With regard to the first development, prior to BCRA, FECA's disclosure
requirements and source and amount limitations extended only to so-called
"hard-money" contributions made for the purpose of influencing an election
for federal office. Political parties and candidates were able to circumvent
FECA's limitations by contributing "soft money" - money as yet unregulated
under FECA -to be used for activities intended to influence state or local
elections; for mixed-purpose activities such as get-out-the-vote (GOTV)
drives and generic party advertising; and for legislative advocacy
advertisements, even if they mentioned a federal candidate's name, so
long as the ads did not expressly advocate the candidate's election or defeat.
With regard to the second development, parties and candidates circumvented
FECA by using "issue ads" that were specifically intended to affect election
results, but did not contain "magic words," such as "Vote Against Jane Doe,"
which would have subjected the ads to FECA's restrictions.

/d. at 93-94.

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The relevant analysis to the issues at bar includes the Court's review of BCRA §
201's definition of "electioneering communications," a new term coined

so

to replace the narrowing construction of FECA's disclosure provisions
adopted by this Court in Buckley. As discussed further below, that
construction limited the coverage of FECA's disclosure requirement to
communications expressly advocating the election or defeat of particular
candidates. By contrast, the term "electioneering communication" is not
limited, but is defined to encompass any "broadcast, cable, or satellite
communication" that
"(I) refers to a clearly identified candidate for Federal office;
(II) is made within(aa) 60 days before a general, special, or runoff election for the
office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a
convention or caucus of a political party that has authority to nominate
a candidate, for the office sought by the candidate; and
(Ill) in the case of a communication which refers to a candidate for an
office other than President or Vice President, is targeted to the relevant
electorate."

/d. at 189-190.
Consistent with the above definition, BCRA provided "significant disclosure
requirements for persons who fund electioneering communications." /d. at 190. "The
major premise of plaintiffs' challenge to BCRA's use of the term 'electioneering
communication' [was] that Buckley drew a constitutionally mandated line between
express advocacy and so-called issue advocacy, and that speakers possess an
inviolable First Amendment right to engage in the latter category of speech." /d. The
Court disagreed, clarifying that Buckley's "express advocacy limitation, in both the
expenditure and the disclosure contexts, was the product of statutory interpretation

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rather than a constitutional command." 3 /d. at 191-192. Nor was the Court persuaded,
"independent of [its] precedents, that the First Amendment erects a rigid barrier
between express advocacy and so-called issue advocacy." /d. at 193.
"Having rejected the notion that the First Amendment requires Congress to treat
so-called issue advocacy differently from express advocacy," the Court examined the
use of the term "electioneering communication" in the challenged disclosure provisions.
The Court concluded
that the important state interests that prompted the Buckley Court to
uphold FECA's disclosure requirements - providing the electorate with
information, deterring actual corruption and avoiding any appearance
thereof, and gathering the data necessary to enforce more substantive
electioneering restrictions- apply in full to BCRA. Accordingly, Buckley
amply supports application of FECA § 304's disclosure requirements[4] to
the entire range of "electioneering communications."
/d. at 196. While acknowledging, as it did in Buckley, "that compelled disclosures may

impose an unconstitutional burden on the freedom to associate in support of a
particular cause," id. at 198, nevertheless, the Court recalled that an as-applied
challenge could be mounted based on "evidence that any party had been exposed to

3

ln this regard, the Court observed that the definition of "electioneering
communication" "raise[d] none of the vagueness concerns that drove [its] analysis in
Buckley. The term 'electioneering communication' applies only (1) to a broadcast (2)
clearly identifying a candidate for federal office, (3) aired within a specific time period,
and (4) targeted to an identified audience of at least 50,000 viewers or listeners."
McConnell., 540 U.S. at 194.
4

BCRA § 201 amended the disclosure requirements to FECA § 304, providing
that "[e]very person who makes a disbursement for the direct costs of producing and
airing electioneering communications in an aggregate amount in excess of $10,000
during any calendar year shall ... file with the [Federal Election] Commission a
statement" containing certain required information. BRCA, Pub. L. No. 107-155, § 201
(codified as amended at 2 U.S.C. § 434 (f)(1 )).

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economic reprisals or physical threats as a result of the compelled disclosures." /d.
The Court then turned its attention to BCRA § 203's prohibition of corporate and
labor disbursements for electioneering communications. "Since our decision in
Buckley, Congress' power to prohibit corporations and unions from using funds in their

treasuries to finance advertisements expressly advocating the election or defeat of
candidates in federal elections has been firmly embedded in our law." /d. at 203.
Section 203 of BCRA extended this rule to all "electioneering communications," as
defined in BCRA §201 (f)(3)(A). In response to plaintiffs' argument that "the
justifications that adequately support the regulation of express advocacy do not apply to
significant quantities of speech encompassed by the definition of electioneering
communications," id. at 206, the Court explained that
[t]his argument fails to the extent that the issue ads broadcast during the
30- and 60-day periods preceding federal primary and general elections
are the functional equivalent of express advocacy. The justifications for
the regulation of express advocacy apply equally to ads aired during those
periods if the ads are intended to influence the voters' decisions and have
that effect. The precise percentage of issue ads that clearly identified a
candidate and were aired during those relatively brief preelection timespans
but had no electioneering purpose is a matter of dispute . . . . Nevertheless,
the vast majority of ads clearly had such a purpose. . . . Moreover, whatever
the precise percentage may have been in the past, in the future corporations
and unions may finance genuine issue ads during those timeframes by
simply avoiding any specific reference to federal candidates, or in doubtful
cases by paying for the ad from a segregated fund.

/d. The Court thus upheld the constitutionality of the challenged amendments.
3. FEC v. Wisconsin Right to Life, Inc. (" WRTL")
The Supreme Court, in Federal Election Commission v. Wisconsin Right to Life,
Inc., 551 U.S. 449 (2007), had the opportunity to address BCRA § 203 again, this time

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in the context of an as-applied challenge to its constitutionality. Appellee Wisconsin
Right to Life, Inc. ("WRTL") was a nonprofit, nonstock, ideological advocacy corporation
recognized by the Internal Revenue Service as tax exempt under§ 501 (c)(4) of the
Internal Revenue Code. WRTL planned on running certain ads financed with funds
from its general treasury, which ads would be illegal "electioneering communictions"
under BCRA § 203. WRTL filed suit against the Federal Election Commission ("FEC"),
seeking declaratory and injunctive relief, alleging that BCRA's prohibition on the use of
corporate treasury funds for "electioneering communications" as defined in BCRA was
unconstitutional as applied to its ads. 5 The Court set the stage for its analysis by
reminding the readers that,
[p]rior to BCRA, corporations were free under federal law to use
independent expenditures to engage in political speech so long as that
speech did not expressly advocate the election or defeat of a clearly
identified federal candidate. . . . BCRA significantly cut back on
corporations' ability to engage in political speech. BCRA § 203, at issue
in these cases, makes it a crime for any labor union or incorporated entity
- whether the United Steelworkers, the American Civil Liberties Union, or
General Motors - to use its general treasury funds to pay for any
"electioneering communication."

/d. at 457. In establishing the proper burden of proof, the Court recognized that,
[b]ecause BCRA § 203 burdens political speech, it is subject to strict
scrutiny . . . . Under strict scrutiny, the Government must prove that
applying BCRA to WRTL's ads furthers a compelling interest and is
narrowly tailored to achieve that interest. . . . This Court has already
ruled that BCRA survives strict scrutiny to the extent it regulates express
advocacy or its functional equivalent. . . . So to the extent the ads in
these cases fit this description, the FEC's burden is not onerous; all
it need do is point to McConnell and explain why it applies here. If, on

5

The ads, entitled "Wedding," "Waiting," and "Loan," were all similar in substance
and format, and similarly suggested to viewers that they contact identified politicians
"and tell them to oppose the filibuster." WRTL, 551 U.S. at 458-459.
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the other hand, WRTL's ads are not express advocacy or its equivalent,
the Government's task is more formidable. It must then demonstrate
that banning such ads during the blackout periods is narrowly tailored to
serve a compelling interest.

/d. at 465 (emphasis in original).
During the course of its analysis, the Court "decline[ d) to adopt a test for asapplied challenges turning on the speaker's intent to affect an election," as "opening the
door to a trial on every ad within the terms of § 203, on the theory that the speaker
actually intended to affect an election, no matter how compelling the indications that the
ad concerned a pending legislative or policy issue." /d. at 467-468. The Court instead
embraced an objective standard: "[A] court should find that an ad is the functional
equivalent of express advocacy only if the ad is susceptible of no reasonable
interpretation other than as an appeal to vote for or against a specific candidate." /d. at
469-470. "[C]ontextual factors 6

...

should seldom play a significant role in the inquiry."

/d. at 473-474.
The Court ultimately held that, "[b]ecause WRTL's ads may reasonably be
interpreted as something other than as an appeal to vote for or against a specific
candidate, ... they are not the functional equivalent of express advocacy, and therefore
fall outside the scope of McConnelfs holding." /d. at 476. Significantly, the Court
declared that it had "never recognized a compelling interest in regulating ads, like
WRTL's, that are neither express advocacy nor its functional equivalent." /d. In the
concluding passage of its opinion, the Court observed:

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For instance, that WRTL participates in express advocacy in other aspects of its
work. /d. at 472-474.

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Yet, as is often the case in this Court's First Amendment opinions, we
have gotten this far in the analysis without quoting the Amendment itself:
"Congress shall make no law ... abridging the freedom of speech." The
Framers' actual words put these cases in proper perspective. Our
jurisprudence over the past 216 years has rejected an absolutist
interpretation of those words, but when it comes to drawing difficult lines
in the area of pure political speech- between what is protected and what
the Government may ban - it is worth recalling the language we are applying.
McConnell held that express advocacy of a candidate or his opponent by a
corporation shortly before an election may be prohibited, along with the
functional equivalent of such express advocacy. We have no occasion to
revisit that determination today. But when it comes to defining what speech
qualifies as the functional equivalent of express advocacy subject to such a
ban- the issue we do have to decide- we give the benefit of the doubt to
speech, not censorship. The First Amendment's command that "Congress
shall make no law ... abridging the freedom of speech" demands at least
that.

/d. at 481-482 (emphasis in original).
4. Citizens United v. FEC ("Citizens United'')
The last of the significant First Amendment cases is the Supreme Court's
decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (201 0),
another as-applied challenge to FECA, 2 U.S.C. § 441b, as amended by BCRA § 203.
In January 2008, appellant Citizens United, a nonprofit corporation, released a
documentary (hereafter "Hillary") critical of then-Senator Hillary Clinton, a candidate for
her party's Presidential nomination. Concerned about possible civil and criminal
penalties for violating § 441 b, it sought declaratory and injunctive relief, arguing that (1)

§ 441 b was unconstitutional as applied to Hillary, and (2) BCRA's disclaimer,
disclosure, and reporting requirements, BCRA §§ 201 and 311, were unconstitutional
as applied to Hillary and the television ads Citizens United produced to announce the
availability of Hillary on cable television through video-on-demand. Applying an

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objective test to determine whether Hillary was the functional equivalent of express
advocacy, the Court found that there was "no reasonable interpretation of Hillary other
than as an appeal to vote against Senator Clinton. Under the standard stated in

McConnell and further elaborated in WRTL, the film qualifies as the functional
equivalent of express advocacy." /d. at 326.
The Court then proceeded to "exercise ... its judicial responsibility" to consider
the facial validity of§ 441 b, explaining that "[a]ny other course of decision would
prolong the substantial, nationwide chilling effect caused by § 441 b's prohibitions on
corporate expenditures." /d. at 333. The Court once again traced the history of
campaign finance regulation, and characterized the dilemma at hand in terms of
"confront[ing] ... conflicting lines of precedent: a pre-Austin line that forbids restrictions
on political speech based on the speaker's corporate identityrJ and a post-Austin line
that permits them." /d. at 348. The Court reconfirmed that "[p]olitical speech is
'indispensable to decisionmaking in a democracy, and this is no less true because the
speech comes from a corporation rather than an individual."' /d. at 349. The Court
rejected the reasoning of Austin, finding it "irrelevant for purposes of the First
Amendment that corporate funds may 'have little or no correlation to the public's
support for the corporation's political ideas,' ... [because a]ll speakers, including

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1n Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the
Supreme Court held that political speech may be banned based on the speaker's
corporate identity, having found "a compelling governmental interest in preventing 'the
corrosive and distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have little or no correlation to
the public's support for the corporation's political ideas."' Citizens United, 558 U.S. at
348 (citing Austin, 494 U.S. at 660).
14

individuals and the media, use money amassed from the economic marketplace to fund
their speech. The First Amendment protects the resulting speech, even if it was
enabled by economic transactions with persons or entities who disagree with the
speaker's ideas." /d. at 351 (quoting Austin, 494 U.S. at 660). The Court then
overruled Austin, based on the "principle established in Buckley . .. that the
Government may not suppress political speech on the basis of the speaker's corporate
identity. No sufficient governmental interest justifies limits on the political speech of
nonprofit or for-profit corporations." /d. at 365.
The Court next addressed Citizens United's challenge to BCRA's disclaimer and
disclosure provisions as applied to Hillary and the advertisements for the movie. The
Court acknowledged that "[d]isclaimer and disclosure requirements may burden the
ability to speak, but they 'impose no ceiling on campaign-related activities,' Buckley,
424 U.S. at 64 ... and 'do not prevent anyone from speaking,' McConnell, [540 U.S.] at
201 .... " Citizens United, 558 U.S. at 366. Under the "exacting scrutiny" standard that
requires a "substantial interest" between the disclosure requirement and a "sufficiently
important" governmental interest, the Court found the statute valid as applied to the ads
for the movie and to the movie itself. In so concluding, the Court reiterated the
governmental interests identified in Buckley, 424 U.S. at 66, and rejected the argument
that "the disclosure requirements in § 201 must be confined to speech that is the
functional equivalent of express advocacy." Citizens United, 558 U.S. at 368.
The Court has explained that disclosure is a less restrictive alternative to
more comprehensive regulations of speech. . . . In Buckley, the Court
upheld a disclosure requirement for independent expenditures even though
it invalidated a provision that imposed a ceiling on those expenditures ....
15

In McConnell, three Justices who would have found § 441 b to be
unconstitutional nonetheless voted to uphold BCRA's disclosure and
disclaimer requirements .... And the Court has upheld registration and
disclosure requirements on lobbyists, even though Congress has no power
to ban lobbying itself.... For these reasons, we reject Citizens United's
contention that the disclosure requirements must be limited to speech that
is the functional equivalent of express advocacy.

/d. at 369. Finally, because Citizens United offered no evidence that its members may
face threats, harassment, or reprisals if their names were disclosed, the Court found no
showing that BCRA's disclaimer and disclosure requirements to the movie and ads
would impose a chill on speech or expression. The Court found no constitutional
impediment to the application of such requirements to the movie and ads at issue. /d.
at 370-371.
B. Circuit Court Precedent

When asked about cases most analogous to the facts at bar, the parties (not
surprisingly) identified different cases. For its part, DSF identified Buckley v. Valeo, 519
F.2d 821 (D.C. Cir. 1975), 8 and the discussion therein related to now repealed FECA §
437a, which provided that:
Any person (other than an individual) who expends any funds or commits
any act directed to the public for the purpose of influencing the outcome of
an election, or who publishes or broadcasts to the public any material
referring to a candiate (by name, description, or other reference) advocating
the election or defeat of such candidate, setting forth the candidate's position
on any public issue, his voting record, or other official acts ... , or otherwise
designed to influence individuals to cast their votes for or against such
candidate or to withhold their votes from such candidate shall file reports
with the [FEC] as if such person were a political committee. The reports
filed by such person shall set forth the source of the funds used in carrying
out any activity described in the preceding sentence in the same detail as if
the funds were contributions within the meaning of section 431 (3) of this
8

(See D.l. 32 at 6)
16

title, and payments of such funds in the same detail as if they were expenditures within the meaning of section 431 (f) of this title.

/d. at 869-870 (citing 2 U.S.C. § 437a (repealed by Pub. L. 94-283, § 105, 90 Stat. 475
(May 11, 1976))). The D.C. Circuit observed at the outset of its analysis that "the
activity summoning the report is calculated to exert an influence upon an election. But
section 437a is susceptible to a reading necessitating reporting by groups whose only
connection with the elective process arises from completely nonpartisan public
discussion of issues of public importance," including such groups as plaintiffs. 9 /d. at
870. In distinguishing between the disclosure requirements of§ 437a and the central
disclosures requirements of FECA pertaining to "political committees" and to
"contributions" and "expenditures," the court grounded its decision to uphold the latter
requirements on its
recognition that the government has demonstrated a substantial and
legitimate interest in protecting the integrity of its elections, an interest
closely connected to and plainly advanced by those provisions.
Section 437a, however, seeks to impose the same demands where the
nexus may be far more tenuous. As we have said, it may undertake to
compel disclosure by groups that do no more than discuss issues of public
interest on a wholly nonpartisan basis. To be sure, any discussion of
important public questions can possibly exert some influence on the
outcome of an election . . . . But unlike contributions and expenditures
made solely with a view to influencing the nomination or election of a

9

Human Events, Inc., "the publisher of a weekly newspaper devoted primarily to
events of political importance and interest," and the New York Civil Liberties Union, an
organization that "engage[s] publicly in nonpartisan activities which 'frequently and
necessarily refer to, praise, criticize, set forth, describe or rate the conduct or actions of
clearly identified public officials who may also happen to be candidates for federal
office."' 590 F.2d at 870-71. With respect to the latter, it sufficiently demonstrated a
"'threat of specific future harm,' ... ([to wit] disclosure would cause loss of contributions
from those who currently insist that their gifts remain confidential)." Buckley v. Valeo,
519F.2dat871 n.130.
17

candidate, see 2 U.S.C. §§ 431(e), 431(f), issue discussions unwedded to
the cause of a particular candidate hardly threaten the purity of elections.
Moreover, and very importantly, such discussions are vital and indispensable
to a free society and an informed electorate. Thus the interest of a group
engaging in nonpartisan discussion ascends to a high plane, while the
governmental interest in disclosure correspondingly diminishes.

/d. at 872-873. Despite an unmistakable congressional intention to apply the statute
broadly, 10 the court concluded that "the crucial terms 'purpose of influencing the
outcome of an election' and 'design[ ] to influence' voting at an election stand without
any readily available narrowing interpretation" and, thus, were unconstitutionally vague
and over-broad. /d. at 877-878. This holding was not appealed and, therefore, not
subject to the Supreme Court review in Buckley, 424 U.S. at 11 n.7.
Defendants, for their part, direct the court's attention to Center for Individual
Freedom, Inc. v. Tennant ("CFIP'), 706 F.3d 270 (4th Cir. 2013), where the Fourth

Circuit reviewed West Virginia's campaign finance laws. 11 Defendants find most
relevant to the dispute at bar the challenge in CFIF to West Virginia's definition of
"electioneering communication" found in W.Va. Code§ 3-8-1a(12)(A), to wit,
any paid communication made by broadcast, cable or satellite signal, or
published in any newspaper, magazine or other periodical that:
(i) Refers to a clearly identified candidate ... ;
(ii) Is publicly disseminated within:
(I) Thirty days before a primary election ... ; or
(II) Sixty days before a general ... election ... ; and
(iii) Is targeted to the relevant electorate ... .

10

According to the legislative history included in the court's opinion, the provision
was intended "to apply indiscriminately," "bring[ing] under the disclosure provisions
many groups, including liberal, labor, environmental, business and conservative
organizations." /d. at 877 & n.140 (citing 120 Gong. Rec. H10333 (daily ed. Oct. 10,
1974) (statement of Rep. Frenzel)).
11

( See

D.l. 33 at 1)
18

W.Va. Code§ 3-8-1a(12)(A). In CFIF, plaintiff challenged the definition's inclusion of
materials "published in any newspaper, magazine or other periodical." 706 F.3d at 281282. In this context, and applying "exacting scrutiny" for its evaluation of the campaign
finance disclosure provisions, the Fourth Circuit found that West Virginia could rely on
its interest of "providing the electorate with election-related information." /d. at 283.
The Fourth Circuit concluded, however, that West Virginia had "failed to demonstrate a
substantial relation between its interest in informing the electorate and its decision to
include periodicals - but not other non-broadcast materials - in its 'electioneering
communication' definition." /d. More specifically, the Court found that, "[a]lthough the
affidavits that West Virginia submitted sufficiently support its decision to regulate
periodicals and other non-broadcast media, they do not justify the legislature's decision
to regulate periodicals to the exclusion of other non-broadcast media, such as direct
mailings." /d. at 285. "[E]rr[ing] on the side of protecting political speech rather than
suppressing it," id., the Fourth Circuit determined that "limiting the campaign finance
regime's applicability to only broadcast media causes it to burden fewer election-related
communications." /d.
C.

Likelihood of Success on the Merits

Starting where defendants left off, as far as the court can discern, there is no
case that purports to address disclosure requirements with the breadth attributed to the
Act. 12 As noted by DSF, many of the cases identified by defendants relate to statutes
that only regulate express advocacy or its functional equivalent (not the mere mention
12

The Delaware Election Disclosures Act, 15 Del. C. § 8001, et seq., as defined
in part I, introduction.

19

of a candidate), 13 while other cases (including CFIF) involve statutes that have
exemptions from the reporting requirements, such as those exempting§ 501 (c)(3)
activity from disclosure 14 or those exempting such publications as voter guides. 15
Consequently, when the Fourth Circuit in CFIF upholds the constitutionality of West
Virginia's substantive disclosure requirement, W.Va. Code§ 3-8-2b(b)(5), which
mandates the disclosure of certain contributors "whose contributions were used to pay
for electioneering communications," one cannot ignore the context of the decision,
where the West Virginia legislature, by its exemptions to the definition of "electioneering
communication" 16 and its preamble to the regulations, 17 made clear that its intended
focus was on express advocacy. Indeed, where a legislature (Congress) clearly
intended otherwise, i.e., to embrace virtually all political communications and
communicators, the D.C. Circuit rejected the resulting statutory language as being over-

13

(See D.l. 32 at 7 n.8)

14

(See D.l. 43 at 7 n.9)

15

(See D.l. 32 at 7 n.10) Because the characterization of DSF's proposed "voter
guide" has not been the subject of this motion practice, the court will assume for
purposes of its analysis that it would pass muster as a nonpartisan voter guide.
16

1ncluding, e.g., "[a] communication, such as voter's guide, which refers to all of
the candidates for one or more offices, which contains no appearance of endorsement
for or opposition to the nomination or election of any candidate and which is intended
as nonpartisan public education focused on issues and voting history." W.Va. Code§
3-8-1 a( 12)(B)(viii).
17

See W.Va. Code§ 3-8-1 (a)(6): "Disclosure by persons and entities that make
expenditures for communications that expressly advocate the election or defeat of
clearly identified candidates, or perform its functional equivalent, is a reasonable and
minimally restrictive method of furthering First Amendment values by public exposure of
the state election system."
20

broad. See Buckley v. Va/eo, 519 F.2d at 877-78 and 877 n.140.
The question remains how to apply the guidance of Citizens United to the Act
which, by its language, is broad enough in scope to capture neutral communications
similar to those exempted by West Virginia's legislature and deemed over-broad by the
court in Buckley v. Valeo, 519 F.2d at 877. The court notes at this juncture that the
Supreme Court's relatively terse discussion about disclosure in Citizens United is based
in large measure on citations to its precedential opinions in Buckley and McConnell,
neither of which were as-applied challenges and neither of which addressed a statutory
regime as broadly constructed (and apparently construed) as the one at bar. As noted
above, the disclosure requirements under examination in Buckley were those directed
to contributions made by individuals, as well as contributions to minor parties and
independent candidates. The Court had no problem finding that the governmental
interests in disclosure were substantially related to its interests in election transparency
when reviewing the application of the disclosure requirements to contributions to minor
parties and independent candidates, obviously participants in the political process.
The Court had more difficulty applying such requirements to individual
contributors and, in that context, found "the relation of the information sought to the
purposes of the Act ... too remote." Buckley, 424 U.S. at 79-80. To insure that the
reach of 434(e) was not impermissibly broad, the Court construed "expenditure" for
purposes of that section "to reach only funds used for communications that expressly
advocate[d] the election or defeat of a clearly identified candidate." /d. at 80. The
Court in McConnell, while rejecting the notion that "Buckley drew a constitutionally

21

mandated line between express advocacy and so-called issue advocacy," McConnell,
540 U.S. at 190, nevertheless rooted its decision to uphold the disclosure requirements
to "evidence in the record that independent groups were running election-related
advertisements 'while hiding behind dubious and misleading names."' Citizens United,
558 U.S. at 367 (emphasis added) (citing to McConnell, 540 U.S. at 197).
Although the First Amendment does not "erect[ ] a rigid barrier between express
advocacy and so-called issue advocacy," the Supreme Court continues to demand,
under an "exacting scrutiny standard," that the government's interest in obtaining
information about a communicator must be substantially related to a sufficiently
important governmental interest, e.g., election transparency. It would appear as though
other legislative efforts have translated this guidance into exempting from disclosure
requirements those communicators generally considered to be non-political (e.g.,§
501(c)(3) groups) and/or those communications generally considered to be nonpolitical (e.g., voter guides), the reasoning being that the less a communicator or
communication advocates an election result, the less interest the government should
have in disclosure when weighed against the important First Amendment rights at
stake.
The Act has no such exemptions, apparently leaving to the Commissioner (and
the less transparent administrative regulation process) any efforts to perhaps more
narrowly tailor the Act's disclosure requirements to communicators/communications
more likely to raise concerns about partisan politics. In this regard, the court notes that
the focus of the Act was actually on communications that are the functional equivalent

22

of advocacy, e.g., on "sham issue ads," 18 voter guides, 19 and even advertisements that
encourage recipients to contact officeholders and candidates, all described in the
record in terms of advocacy, i.e., as efforts intended "to affect voters' choices at the
ballot box." (D.I. 30, ex. 4 at 4)
The court recognizes that it is never an easy task for the legislature to draw lines
when it comes to restricting constitutional rights. A fully informed electorate is a worthy
goal recognized by the Supreme Court. 20 Nevertheless, as presented, the Act is so
broadly worded as to include within the scope of its disclosure requirements virtually
every communication made during the critical time period, no matter how indirect and
unrelated it is to the electoral process. 21 On the record presented, this would include
DSF's proposed voter guide (as a presumably neutral communication) published by

18

Described as "campaign advertisements that target candidates right before an
election, but escape disclosure by avoiding the 'magic words' of express advocacy like
'vote for' or 'vote against' that have traditionally triggered disclosure requirements."
(D. I. 30, ex. 2 at 2)
19

"Voter guides are typically intended to influence voter behavior," despite
"lacking words of express advocacy." (/d., ex. 3 at 4-5)
20

The court notes the difference between educating - providing information to the
public - and "influencing" - affecting the conduct, thought or character of the public. As
reflected in the legislative history, the Act was intended to control the latter form of
communication, not the former.
21

Any one who contributes to such civic organizations as the League of Women
Voters, the American Civil Liberties Union of Delaware, or Common Cause might well
expect to have their names and addresses listed as a matter of public record, because
such organizations tend to discuss the actions of clearly identified public officials. The
Act, however, is broad enough to cover the contributors to any charitable organization,
e.g., those advocating such causes as a cure for cancer or support for wounded war
veterans, if the organization publishes a communication within the critical time frame
that so much as mentions, even in a non-political context, a public official who happens
to be a candidate.

23

DSF (a presumably neutral communicator by reason of its 501 (c)(3) status). The court
concludes that the relation between the personal information collected 22 to the primary
purpose of the Act2 3 is too tenuous to pass constitutional muster. 24 Therefore, DSF is
likely to prevail on the merits of its claim that the Act, as applied, is unconstitutional.
D. Balance of Harms
In the Third Circuit, "[i]t is well established that 'the loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury."' Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (quoting Elrod v. Burns, 427
U.S. 347, 373 (1976)). Having found that DSF has demonstrated a likelihood of
success on the merits of their First Amendment claim, and concluding that defendants'
interest in public disclosure cannot withstand the public's interest in protecting their
privacy of association and belief guaranteed by the First Amendment, the court
concludes that the balance of harms weighs in favor of DSF.

IV. CONCLUSION
For the reasons states, DSF's motion for a preliminary injunction (0.1. 22) is
granted. The court recognizes, however, that the factual underpinnings for its decision
have not been specifically challenged or vetted through discovery. Therefore, no order

22

Like the metadata collected by the National Security Administration.

23

Regulating anonymous political advocacy.

24

And, indeed, those who want to circumvent the intent of the Act will simply
contribute anonymously. It will likely be the First Amendment rights of non-political
contributors that will end up being violated by the intrusive collection of personal
information - the full name and mailing address of each person who has made
contributions in excess of $100 during the election period- information that is unrelated
to the regulation of abusive political activity.
24

shall be executed until the court has conferred with the parties at the scheduled April 1,
2014 telephonic status conference.

25