9th Circuit Strikes Down Ban on Contributions to Ballot MeasuresUpholds Disclosure for Small Contributions

John Kramer
John Kramer · April 13, 2010

Seattle, Wash.—In a mixed decision for the First Amendment, the 9th U.S. Circuit Court of Appeals today struck down a Washington law that banned certain contributions to ballot measures within the key final three weeks before an election.  The court also upheld Washington’s stringent disclosure requirements for ballot measures.  The case is Family PAC of Washington v. McKenna.

The case was brought by Family PAC, an organization that supported a referendum challenging Washington’s domestic partnership law.  Family PAC challenged two components of Washington’s strict campaign finance reporting laws:  first, a provision that requires committees supporting or opposing a ballot measure to report to the government the names and addresses of anyone who contributed as little as $25 to the effort, and second, an administrative code provision that added a requirement that, for contributions over $100, the contributor’s employer and occupation also be reported.  Once reported to the state, the government would make all of this information available on an online database, accessible to anyone in the world with a computer.  Family PAC also challenged a state law that prohibited ballot measure committees from accepting from any one person contributions exceeding $5,000 within 21 days of a general election.

Citing the government’s purported “important governmental interest in informing the electorate,” the court upheld the reporting requirements.  The court recognized that disclosure of one’s political contributions can chill political activity and cause retaliation and harassment.  It also noted that the lower a disclosure requirement is, the less useful information it provides.  It nonetheless concluded that Washington’s laws were constitutional because disclosure of even these small contributions can further the government’s interest “in the aggregate.”

In contrast, the court struck down Washington’s law banning contributions exceeding $5,000 from one source as it was applied to ballot measures.  The court concluded that the law created a significant burden on First Amendment rights because it deprived ballot measure committees of contributions “during the critical three-week period before the election, when political committees may want to respond to developing events.”

“The court correctly recognized that the 21-day cap on contributions significantly burdened speech during the most important time of a campaign,” said Bill Maurer, the executive director of the Institute for Justice Washington Chapter (IJ-WA).  IJ-WA filed a friend-of-the-court brief with the 9th Circuit in support of the challenge to the law.  “The court, however, was simply wrong that Washington’s burdensome disclosure laws are constitutional, especially on the basis of something as amorphous as ‘informing the electorate.’  That standard could be used to require pretty much any information about a donor be reported to the government.  Under our Constitution, the government has no role in collecting and disseminating the names, addresses, employers, occupations or other information of ordinary Americans just because they gave $25.01 to support or oppose a ballot measure.”

IJ-WA Staff Attorney Jeanette Petersen said, “Requiring this kind of information as a precondition for participating in politics just drives small contributors and ordinary Americans from politics, leaving large, established interests—who do not need to fear harassment or reprisals—occupying the political field.  Why should Washingtonians participate in debates about controversial issues if it means that their address and employer will end up on the Internet?”

Maurer concluded, “The 9th Circuit’s decision today conflicts with the trend among other courts recognizing that reporting of small contributions provides little useful information while significantly chilling political speech.  We expect that the U.S. Supreme Court will eventually need to resolve these divergent views.”