OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 15-IB07
August 27, 2015
The Honorable Elaine Manlove
State Election Commissioner
905 S. Governors Ave Ste 170
Dover, Delaware 19904
RE: Required Disclosure of Identity of Political Party Funding Campaign Advertisements
Dear Commissioner Manlove:
You have asked whether the Department of Elections for the State of Delaware may enforce 15 Del. C. § 8021(a) (“Section 8021(a)”), which requires political parties to include a disclaimer reading “Paid for by [name of political party]” on any and all “campaign advertisements.” For the reasons stated below, notwithstanding our September 29, 1995 Opinion[1] addressing the constitutionality of a previous version of 15 Del. C. § 8021 and in light of the Supreme Court’s 2010 decision in Citizens United[2] and the Third Circuit’s recent opinion in Delaware Strong Families,[3] we believe that Section 8021(a) should survive a constitutional challenge and may be enforced.
Background
In April, 1995 the Supreme Court of the United States issued its opinion in McIntyre v. Ohio Elections Commission.[4] In that opinion, the Supreme Court held that an Ohio law prohibiting the writing or distribution of anonymous campaign literature violated the First Amendment to the United States Constitution.[5] The Supreme Court’s opinion relied heavily on the factual circumstances present in the case – where an individual was being charged with distributing anonymous leaflets opposing a tax proposal prior to a school district referendum – and the broad, open-ended nature of the Ohio law at issue.[6] The Supreme Court explicitly left open the possibility that a more narrowly drawn statute could pass constitutional muster.[7]
Shortly thereafter, the Honorable Thomas J. Cook, then the Commissioner of Elections for the State of Delaware, asked for and received an opinion from this office on the constitutionality of a Delaware statute that provided for a restriction on anonymous election-related communications similar to that which had recently been found unconstitutional in McIntyre.[8] This opinion (the “1995 Opinion”) considered the statutes at issue in light of McIntyre and other relevant cases and ultimately determined that Delaware’s broad, open-ended statute forbidding anonymous campaign-related communications would likely suffer the same fate as the Ohio statute addressed in McIntyre.[9] As with the Supreme Court in McIntyre, the Attorney General left open the possibility that a more narrowly-drawn statute could be acceptable.[10]
Following the 1995 Opinion, it is our understanding that neither the Department of Elections nor the Attorney General enforced the provisions of 15 Del. C. §§ 8021 and 8023, but the laws remained technically “on the books.”
That changed in 2012, with the introduction and eventual passage of the Delaware Elections Disclosure Act (“DEDA”).[11] As passed, DEDA noted that Delaware had seen “a proliferation of advertisements featuring candidates that are distributed during the campaign season and are intended to influence elections, but are not required to be reported under existing law.”[12] DEDA also recognized that Delaware has a “compelling interest in (1) providing voters with relevant information about where political campaign money comes from and how it is spent, so that voters can make informed choices in elections; (2) reducing the risk or appearance of undue influence by ensuring political spending is comprehensively disclosed; and (3) promoting compliance by candidates and political groups with campaign laws.”[13]
In an attempt to further those compelling interests, DEDA made a number of changes to Delaware’s existing campaign-related disclosure, reporting and disclaimer requirements. Relevant to this letter are the changes to the provisions addressed in the 1995 Opinion. As to those provisions, DEDA eliminated 15 Del. C. § 8023 in its entirety,[14] and made substantial edits to 15 Del. C. § 8021. As amended by DEDA, 15 Del. C. § 8021 now reads
§ 8021. Identification of Purchaser.
(a) All campaign advertisements having a fair market value of $500 or more, except printed items with a surface of less than 9 square inches, shall include prominently the statement: “Paid for by [name of political committee or other person paying for such advertisement.].” For purposes of this section, “campaign advertisements” shall include any communication by a candidate committee or political party that would otherwise qualify as an independent expenditure or an electioneering communication but for the fact it was made by a candidate committee or political party.
(b) All third-party advertisements having a fair market value of $500 or more, except printed items with a surface of less than 9 square inches, shall include prominently the statement: “Paid for by [name of political committee or other person paying for such third-party advertisement. Learn more about [name of person] at [Commissioner of Elections’ web address].”
(c) The Commissioner may adopt regulations regarding the size, placement and duration of the foregoing statements as the same shall apply to specific forms of campaign advertisements. In connection therewith, the Commissioner may modify or amend the foregoing statements to conform to the requirements of a particular medium (i.e., television, radio, print, Internet), and may by regulation create exemptions from the requirements hereunder where compliance is not reasonably practicable due to the small size or short duration of such advertisements. In all events, however, campaign advertisements having the same medium and duration (for example, 15-second radio advertisements or Internet advertisements having less than 200 characters) shall be subject to the same requirements.[15]
It is the first subsection of this statute – Section 8021(a) – that is relevant to your request. As compared to the version of Section 8021 at issue in the 1995 Opinion, new Section 8021(a) is substantially revised and limited. Initially, the statute reaches only “campaign advertisements,” which are defined as including “independent expenditures” and “electioneering communications.” Both of these terms were defined by DEDA, and act in tandem to, among other things, limit Section 8021(a)’s reach to communications that either (i) “expressly advocate[e] the election or defeat of a clearly identified candidate;”[16] or (ii) “[r]efer[] to a clearly identified candidate” and are distributed in close temporal proximity to an election (e.g. within 30 days of a primary or special election or 60 days of a general election).[17] This is a significant departure from the version of the statute at issue in the 1995 Opinion, in that it clearly limits the scope of the disclaimer requirement to candidate elections (so referenda are not implicated) and further limits its scope to those communications that are equivalent to (or designed to have the effect of) express candidate advocacy, as opposed to advocacy related purely to specific issues.
Section 8021(a) is further limited, as compared to its predecessor, by the inclusion of a carveout for campaign advertisements that cost less than a threshold dollar amount – here, $500. No similar carveout existed in the prior version of Section 8021.
Since its 2012 passage, Section 8021(a) has been enforced by the Department of Elections. To our knowledge, no court has considered whether its provisions violate the federal Constitution.
Discussion
In light of the 1995 Opinion and the Supreme Court’s McIntyre decision, you have asked whether the Department of Elections can continue its practice of enforcing Section 8021(a) when it becomes aware of violations. For the reasons that follow, barring any additional guidance from the courts in this area, we believe that the Department of Elections can and should enforce the General Assembly’s mandate.
As an initial matter, we do not believe that either the 1995 Opinion or the Supreme Court’s McIntyre decision controls this matter. As set forth above, both of those opinions addressed statutes much broader than Section 8021(a), and McIntyre in particular expressly left open the possibility that a more narrow statute could pass constitutional review.[18] The relevant question, therefore, is whether or not the limitations in Section 8021(a) (which were not present in the 1995 Opinion), when combined with developments in the case law, suggest that Section 8021(a) can survive a First Amendment challenge. We believe that the answer to this question is “yes.”
“Enactments of the Delaware General Assembly are presumed to be constitutional,”[19] and “[a]ll reasonable doubts as to the validity of a law must be resolved in favor of the constitutionality of the legislation.”[20] That said, “[w]hen a law burdens core political speech, [a reviewing court] appl[ies] ‘exacting scrutiny,’ and [upholds] the restriction only if it is narrowly tailored to serve an overriding state interest.”[21]
Since McIntyre was decided, the Supreme Court has had a number of occasions to address restrictions and regulations on political speech. The most important of these cases for purposes of this letter was the Court’s 2010 decision in Citizens United.[22] Justice Kennedy’s majority opinion in Citizens United made clear at the outset that the exacting scrutiny analysis is not an impermeable barrier to regulations and restrictions on political speech. Rather, “[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”[23]
Relying on these standards, the Supreme Court in Citizens United upheld certain provisions of the federal Bipartisan Campaign Reform Act of 2002 (“BCRA”) against an as-applied First Amendment challenge.[24] The provisions in question required televised electioneering communications funded by non-candidates to include “a disclaimer that ‘“________” is responsible for the content of this advertising.’”[25]
In examining the disclosure requirement, the Citizens United Court noted the significant interest that governments have in “‘provid[ing] the electorate with information’ about the sources of election-related spending.”[26] The Court relied, in part, on its 2003 decision in McConnell that upheld this same provision of the BCRA against a facial challenge: “In light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office.”[27] Ultimately, the Supreme Court held that “[d]isclaimer and disclosure requirements may burden the ability to speak, but they ‘impose no ceiling on campaign-related activities,’ and ‘do not prevent anyone from speaking.’”[28] Because the restriction in question was narrowly tailored to serve the Government’s undeniable interest, it survived constitutional scrutiny.
In addition, and very recently, the United States Court of Appeals for the Third Circuit has issued an opinion that has some bearing on this matter. In Delaware Strong Families, the Third Circuit considered an as-applied challenge to the DEDA disclosure requirements.[29] While the Court was not required to – and did not – address the Section 8021(a) disclaimer requirements that are at issue in this letter, it did address the definitions of “electioneering communication” and “third party advertisement” that are incorporated into Section 8021(a). In so doing, the Third Circuit commented on both the monetary threshold at which disclosure requirements kicked in – the same $500 level that is provided for in Section 8021(a)’s disclaimer requirement – and the fact that the definition of “electioneering communication” in DEDA is broader than that in the BCRA, and extends to non-broadcast media such as direct mail and the internet.[30]
The Delaware Strong Families court found that both requirements passed Constitutional review. As to the former, the Court noted that
It is unsurprising that Delaware’s thresholds are lower than those for national elections. Delaware is a small state where direct mail makes up 80% of campaign expenditures. “[F]or less than $500 a campaign can place enough pre-recorded ‘robo-calls’ to reach every household in a Delaware House district. If a hyper-targeted recipient list is used, as is common in campaigns, $150 would suffice.” The expenditure thresholds are supported by the record and are rationally related to Delaware’s unique election landscape.[31]
So too with the latter. The Third Circuit held that “the media covered by [DEDA] reflects the media actually used by candidates for office in Delaware, and thus it bears a substantial relation to Delaware’s interest in an informed electorate.”[32] Indeed, “[h]ad the legislature limited ‘electioneering communication’ to media not actually utilized in Delaware elections, the disclosure requirements would fail to serve the State’s interest in a well-informed electorate thereby resulting in a weaker fit between the two.”[33] The Third Circuit therefore held that both restrictions rendered the disclosure requirements sufficiently tailored to Delaware’s “sufficiently important” interest in an informed electorate to survive the plaintiff’s challenge.[34]
Utilizing these cases as a framework, we believe that Section 8021(a)’s requirement that political parties identify themselves on electioneering communications and third party advertisements is sufficiently tailored to an important state interest to survive a constitutional challenge. The disclaimer provisions are narrowly tailored to communications actually used in Delaware, that have an effect on candidate elections, and that are intended to be the equivalent (or nearly functional equivalent) of express candidate advocacy. Moreover, in light of the monetary threshold it still remains possible for individuals and organizations to engage in certain targeted express advocacy anonymously, if they so desire. We believe that the disclaimer requirement is sufficiently narrowly tailored to the important interests identified by the General Assembly in the Preamble to DEDA and Delaware’s undoubtedly “compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office,”[35] such that it should survive a challenge on First Amendment grounds.[36]
Conclusion
The decision outlined herein is not one that is controlled by well-settled law. It is therefore within the realm of possibility that a court faced with this question could come out in a different way. And we do not mean, by this opinion, to belittle or question the importance of anonymous political speech. Indeed, the Constitution itself – the very document on which the principles discussed in this letter is based – was publicly debated by our founding fathers under the pseudonyms Cato, Brutus and Publius, among others.[37]
But the case law makes clear that reasonable restrictions that are sufficiently tailored to an important government interest may be placed on anonymous speech – even political speech. And we believe that the provisions of Section 8021(a) are sufficiently tailored to the interest in an informed electorate to pass Constitutional review.[38] We therefore advise that you can – and should – continue to enforce that provision as drafted by the General Assembly.
If you have any further questions, please do not hesitate to contact us.
Very Truly Yours,
/s/ Scott Perkins
Scott Perkins
Deputy Attorney General
Approved:
/s/ Aaron Goldstein
Aaron R. Goldstein
Acting State Solicitor
FOOTNOTES
[1] Att’y Gen. Op. 95-FB01.
[2] Citizens United v. Fed. Elec. Comm’n, 558 U.S. 310 (2010).
[3] Delaware Strong Families v. Att’y Gen., — F.3d —-, 2015 WL 4289460 (3d Cir. 2015).
[4] 514 U.S. 334 (1995).
[5]Id. at 357. In relevant part, the Ohio statute provided that
No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general public political advertising, or through flyers, handbills, or other nonperiodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor.
Ohio Rev.Code Ann. § 3599.09(A) (1988) (quoted in McIntyre, 514 U.S. at 338 n.3.
[6] See, e.g., McIntyre, 514 U.S. at 353-56.
[7] Id. at 353 (“We recognize that a State’s enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafleting at issue here.”). Among the limitations that the Supreme Court discussed (but did not fully address the sufficiency of) were potential laws targeting candidate elections. Id. at 356 (“In candidate elections, the Government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures. … In short, although Buckley might permit a more narrowly drawn statute, it surely is not authority for upholding Ohio’s open-ended provision.”).
[8] The statutes in question – 15 Del. C. §§ 8021 & 8023, provided
§ 8021. Identification of Purchaser. All campaign literature or advertising, except on items with a surface of less than 9 square inches, shall display prominently the statement: “Paid for by (name of political committee or other person paying for such literature or advertising).”
§ 8023. Independent Expenditures. (a) All campaign literature, advertising (except on items with a surface of less than 9 square inches) or other message paid for by independent expenditures shall prominently and at all times display the following statement: “Paid for by (name of person paying for the literature, advertising or other message). Not authorized nor paid for by any candidate or by any committee of any candidate. The cost of presenting this message is not subject to any campaign contribution limits.” If the independent expenditure is made or reimbursed by a political action committee or other person other than an individual, the names of the president (or other chief officer) and treasurer of the organization shall be prominently displayed with the rest of the above statement.
15 Del. C. §§ 8021, 8023 (1995) (quoted in Att’y Gen. Op. 95-FBO1).
[9] See Att’y Gen. Op. 95-FB01, at 7 (“Accordingly, unless and until McIntyre is limited by subsequent case law, we believe it must be read to encompass statutes such as 15 Del. C. § 8021 and § 8023 and believe that such statutes are, at present, unenforceable.”).
[10] Id. at 6-7 & n.2 (addressing the broad nature of the Delaware statutes at issue, noting language in Justice Ginsberg’s McIntyre concurrence suggesting that a more narrowly drawn statute could pass muster, but concluding that nothing in McIntyre could be read to indicate that a more narrowly drawn statute would be acceptable at that point).
[11] See 78 Del. Laws, ch. 400.
[12] Id. at Preamble.
[13] Id.
[14] 78 Del. Laws, ch. 400, § 6.
[15] 78 Del. Laws, ch. 500, § 5.
[16] 15 Del. C. § 8002(13) (defining “independent expenditure”).
[17] 15 Del. C. § 8002(10) (defining “electioneering communication”).
[18] See, e.g., McIntyre, 514 U.S. at 353, 356.
[19] Hoover v. State, 958 A.2d 816, 821 (Del. 2008).
[20] McDade v. State, 693 A.2d 1062, 1065 (Del. 1997).
[21] McIntyre, 514 U.S. at 347.
[22] Citizens United v. Fed. Elec. Comm’n, 558 U.S. 310 (2010).
[23] Id. at 319.
[24] The same provision had previously been upheld against a facial challenge in McConnell v. Fed. Elec. Comm’n, 540 U.S. 93, 196, 231 (2003), overruled in part on other grounds by Citizens United, 558 U.S. at 365-66.
[25] Id. at 366 (quoting 2 U.S.C. § 441d(d)(2)).
[26] Id. at 367 (quoting Buckley v. Valeo, 424 U.S. 1, 66 (1976)).
[27] McConnell, 540 U.S. at 205.
[28] Citizens United, 558 U.S. at 366 (quoting Buckley, 424 U.S. at 64; McConnell, 540 U.S. at 201).
[29] 2015 WL 4289460, at *1. As of the date of this letter, the plaintiffs in Delaware Strong Families have indicated that they intend to seek to have the United States Supreme Court review the Third Circuit’s decision, but no writ of certiorari has been filed. We reserve the right to amend this opinion in the event that the Supreme Court accepts the appeal and reverses the Third Circuit.
[30] Id. at *4-5.
[31] Id. at *4.
[32] Id. at *5.
[33] Id.
[34] Id. at *3, 6.
[35] McConnell, 540 U.S. at 205.
[36] Indeed, in light of the Third Circuit’s decision in Delaware Strong Families a contrary holding would be somewhat paradoxical. It would be passing strange if Delaware’s interest in having an informed electorate permitted it to require political committees and other advocacy groups to disclose the identity of their donors, but did not permit the State to require the same committees and advocacy groups to notify the same voters which public statements were actually made by them.
[37] Cf. McIntyre, 514 U.S. at 343 & n.6 (commenting on the “tradition of anonymity in the advocacy of political causes,” including with respect to the authors of the Federalist Papers and their opponents, the Anti-Federalists).
[38] Two more recent Courts of Appeal opinions considering challenges to political disclosure requirements have resulted in similar holdings. See Vermont Right to Life Committee, Inc. v. Sorrell, 758 F.3d 118, 133-34 (2d Cir. 2014) (upholding a challenge to, among other things, a requirement that all “electioneering communications” identify the person or entity that paid for their creation or distribution); Alaska Right to Life Committee v. Miles, 441 F.3d 773, 793-94 (9th Cir. 2006) (upholding facial and as-applied challenges to a law requiring that certain election-related communications include “paid for by” information).
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