By: Briana Cornelius

Earlier this summer, the Third Circuit Court of Appeals upheld a Delaware state election law that went into effect in 2013 and compels advocacy groups to disclose their political advertising donors.  The Third Circuit’s ruling reversed a district court’s grant of a preliminary injunction declaring the law’s disclosure requirements unconstitutional.

The Delaware Elections Disclosure Act (the “Act”) requires groups that spend more than $500 per year on electioneering communications to report the full name and address of each individual who contributes $100 or more to the advertisement. The plaintiff in the case, Delaware Strong Families (“DSF”), is a conservative group that spends over $500 annually to distribute “voter guides” to Delawareans ahead of elections. Though these voter guides do not specifically recommend how to vote, they do refer to specific candidates and those candidates’ respective views on positions advanced by DSF, such as prohibiting insurance coverage for abortion and defining marriage as a union between one man and one woman. DSF distributed these voter guides without incident in 2012, and had planned to distribute voter guides via the internet within 60 days of Delaware’s 2014 general election as well. DSF filed suit in October 2013—about ten months after the Act went into effect—alleging that the law was too broad, and therefore unconstitutional.

The district court found for DSF, and concluded that the Act’s disclosure requirements were unconstitutional as applied to the organization. The district court relied on DSF’s status as a § 501(c)(3) organization to find that the voter guide was a “neutral communication” by a “neutral communicator,” an argument that the Third Circuit rejected outright: “[I]t is the conduct of an organization, rather than an organization’s status with the Internal Revenue Service, that determines whether it makes communications subject to the Act.” Because the district court found the Act unconstitutional as applied, it did not analyze the Act’s specific requirements in order to determine whether the law was sufficiently tailored to pass Constitutional muster. The Third Circuit took on this analysis itself, applying a heightened, exacting scrutiny standard that requires the government to show there is a substantial relation between the disclosure requirements at issue and a sufficiently important governmental interest. Throughout the opinion, the court relied on recent Supreme Court precedent that analyzed the Bi-Partisan Campaign Reform Act (“BCRA”), the federal statute analogous to Delaware’s disclosure Act.

DSF did not dispute whether Delaware’s stated interest in an informed electorate was sufficiently important. It argued instead that both the monetary threshold of the law and the types of media covered by it (i.e., non-broadcast media including the internet and direct mail) were impermissibly broad. The Third Circuit rejected both of these arguments by citing Delaware’s “unique election landscape”—reflecting that its low population and reliance on specific types of media in campaign elections warranted departures from BCRA that might not pass muster in larger states. For example, the court postulated that although the Act’s definition of “communications media” was much broader than BCRA’s, this broader definition was justified because Delaware in fact lacks its own major network TV station and must use non-broadcast media or else rely on expensive advertising in neighboring Pennsylvania and Maryland. The court ultimately found that “[t]he Act marries one-time, event-driven disclosures to the applicable ‘election period,’ which is itself controlled by the relevant candidate’s term. This provides the necessary ‘substantial relationship’ between the disclosure required and Delaware’s informational interest.”


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