Should the state have the power to regulate groups that publish nonpartisan voter guides in the same way that it regulates candidate committees, political parties and PACs? That’s the issue at stake in Delaware Strong Families v. Denn, a case challenging a new Delaware law that violates the First Amendment by placing unconstitutional burdens on groups publishing nonpartisan voter guides.
As written, the law appears to require groups to choose between publishing information on candidates or violating the privacy of their supporters who might contribute as little as $9 a month. As a result of the law, Delawareans will find it more difficult to get information about elected officials and candidates.
The Delaware law, which took effect in January, creates a new form of regulated speech known as a “third-party advertisement.” The law appears to subject groups that publish voter guides to essentially the same regulatory and disclosure burdens as parties, PACs and candidate committees.
The lawsuit was filed October 23, 2013 on behalf of Delaware Strong Families (DSF), which published a nonpartisan voter guide in 2012 and hopes to publish a similar guide next year. The lawsuit notes that “[a]bsent a declaratory judgment [by the court], DSF will not publish and disseminate its voter guides in 2014, for fear of risking enforcement of the Delaware Elections Disclosure Act. Thus, Delaware’s campaign finance regime—left untouched—will chill speech in a manner found unconstitutional by the Supreme Court” in the landmark 1976 decision of Buckley v. Valeo.”
As a part of its mission, DSF informs voters about the positions of candidates for federal, and state office on issues of importance to the community. It accomplishes this task by releasing voter guides listing every candidate seeking state or federal office, as well as those candidates’ positions on a variety of issues. Even though the group does not endorse candidates and the voter guides are neutral and nonpartisan, the law would force the group to turn over contribution lists to the state and make detailed filings that the Supreme Court has found to be unconstitutional in other cases.
“It’s wrong for the State to require that Delaware Strong Families register with the government, hand over contributor lists, and comply with the State’s regulatory morass just to get permission to distribute information about every candidate running for office and where they stand,” said Nicole Theis, the president of Delaware Strong Families (DSF), “There is nothing in the First Amendment that says that we need to beg the state for a license to speak.”
DSF would face stiff penalties for publishing the voter guides in 2014 without abiding by the new law.
“If DSF were to continue issuing voter guides and then neglect or refuse to file these burdensome reports, the organization would face a fine of $50 a day,” said Allen Dickerson, Legal Director of the Center for Competitive Politics, which is representing DSF in court. “The Buckley Court upheld disclosure of a group’s contributors only if its communications objectively urge people to vote for a specific candidate. The government cannot impose extensive regulatory burdens, or violate the privacy of donors, where an organization does not advocate for any candidate.”
United States Supreme Court
- Dissent from Denial of Writ of Certiorari to U.S. Supreme Court (June 28, 2016)
- Reply Brief of Petitioner (May 27, 2016)
- Brief in Opposition (May, 2016)
- Petition for Writ of Certiorari (March 30, 2016)
- Amicus Brief of Americans for Prosperity Foundation in Support of DSF
- Amicus Brief of Buckeye Institute for Public Policy Solutions, Goldwater Institute, Montana Policy Institute, and Mackinac Center for Public Policy in Support of DSF
- Amicus Brief of The Cato Institute and Institute for Justice in Support of DSF
Third Circuit Court of Appeals
- Third Circuit Opinion (July 16, 2015)
- Third Circuit Brief for Plaintiff-Appellee (July 9, 2014)
District Court for the District of Delaware
- Order. Motion for Preliminary Injunction (April 8, 2014)
- Opinion, Motion for Preliminary Injunction (March 31, 2014)
- Plaintiff’s Reply Brief in Support of its Motion for Preliminary Injunction (March 14, 2014)
- Plaintiff’s Opening Brief in Support of its Motion for Preliminary Injunction (January 14, 2014)
- Opening Brief in Support of Motion for Preliminary Injunction (January 14, 2014)
- CCP’s Verified Complaint (October 22, 2013)
- Wilmington News Journal: Supreme Court rejects challenge to Delaware election law, By Jessica Masulli Reyes (June 28, 2016)
- CCP: Supreme Court declines review of Delaware disclosure law, Thomas dissents (June 28, 2016)
- More Soft Money, Hard Law: Again Before the Supreme Court: Can There Be “Issues Speech” During Campaigns?, By Bob Bauer (June 13, 2016)
- CCP: Statement on ruling in the case of Delaware Strong Families v. Attorney General (July 16, 2015)
- News Journal (Letter to the Editor): State to appeal ruling on political secrecy, By Allen Dickerson (April 18, 2014)
- The Wall Street Journal: The First State’s Free Speech Win, with David Keating (April 11, 2014)
- Reason: Delaware Faces Lawsuit Over Campaign Finance Law That Targets Political Speech, By Ed Krayewski (October 24, 2013)
- The Libertarian Republic: Knowledge is Power, By Joe Trotter (October 23, 2013)