Litigation We're Watching

By Terry Martin

Last Updated 04/25/2019

Calzone v. Missouri Ethics Commission (8th Circuit opinion issued, on petition for rehearing en banc): The State of Missouri’s lobbying registration and reporting law applies to anyone designated by an organization to influence legislation, whether any payment is promised or not. The United States Court of Appeals for the Eighth Circuit upheld the law, citing recent Supreme Court cases taking a permissive stance toward disclosure laws that are triggered by speaking about public officials and opining that broad transparency is important to combat possible corruption.

Institute for Free Speech v. Jackley (D. South Dakota, parties currently filing briefs after motion for TRO/PI granted in part and denied in part): South Dakota law requires organizations that incur expenditures over $100 for communications “concerning… ballot questions” to include a statement in their ads disclaiming coordination with any candidate, officeholder, or committee, further revealing the organization’s name, web address, and mailing address, and finally identifying the five largest contributors to the entity in the preceding calendar year. A nonprofit exempt from tax under IRC section 501(c)(3) challenged these restrictions under the First Amendment as being vague for failing to include sufficiently precise definitions for the conditions that trigger the law’s application and for failing to allow a state agency to provide advice as to the same, and by regulating advertisements about issues that are not campaign related.

Citizens for Responsibility and Ethics in Washington v. Federal Election Commission (notice of appeal filed by subject party Crossroads GPS): Federal Election Commission (“FEC”) regulations interpreting the Federal Election Campaign Act (“FECA”) require a committee to disclose a third party contributor only if his contribution is earmarked for a specific independent expenditure. Citizens for Responsibility and Ethics in Washington (“CREW”) challenged this regulation as being an unreasonable narrowing of the FECA provision it was promulgated to implement. The lower court agreed and struck the regulation. The subject party, Crossroads GPS, has appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

Thompson v. Hebdon (9th Circuit, challenge sustained, on remand to D. Alaska where opening briefs are being filed): First Amendment law forbids discriminating against speakers based on identity, with rare exceptions such as certain forms of foreign national participation in the political process. Alaska enforces a statutory provision that limits the aggregate contributions a candidate may accept from out-of-state residents. A panel of the 9th Circuit ruled that such a law does in fact infringe unconstitutionally on First Amendment rights.