Majors v. Abell

• Decision Date: 15 March 2004
• Docket Number: No. 02-2204.,02-2204.
• Parties: Brian MAJORS, et al., Plaintiffs-Appellants, v. Marsha ABELL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

361 F.3d 349

Brian MAJORS, et al., Plaintiffs-Appellants, v. Marsha ABELL, et al., Defendants-Appellees.

No. 02-2204.

United States Court of Appeals, Seventh Circuit.

Argued November 1, 2002.

Decided March 15, 2004.

Rehearing Denied April 7, 2004.

Robbin Stewart (argued), Indianapolis, IN, for Palintiff-Appellant.

Jay A. Ziemer (argued), Bowers Harrison, Evansville, IN, Frances Barrow (argued), Office of Atty. General, Indianapolis, IN, for Defendant-Appellee.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

An Indiana statute, challenged in this suit as an infringement of free speech, requires that political advertising that "expressly advocat[es] the election or defeat of a clearly identified candidate" contain "a disclaimer that appears and is presented in a clear and conspicuous manner to give the reader or observer adequate notice of the identity of persons who paid for ... the communication," Ind.Code §§ 3-9-32.5(b)(1), (d), and makes violation a misdemeanor. § 3-14-1-3. "Disclaimer" is a misnomer; the correct word would be "disclosure" — but as we'll see, that word has been appropriated to describe a reporting requirement.

The district court dismissed the suit on jurisdictional grounds that we concluded were unsound, 317 F.3d 719, 721-23 (7th Cir.2003), but we decided that we should not attempt to decide the merits of the plaintiffs' constitutional challenge until we obtained an authoritative interpretation of the statute from the Indiana Supreme Court. The state had argued that despite using the word "person" to denote who was subject to it the statute was limited to candidates, campaign committees, and the committee's agents. We said that if the statute was as narrow as the state claimed it was — a claim no court of Indiana had passed on — it was a straightforward antifraud statute unlikely to present serious constitutional problems. For on the state's interpretation, the statute merely forbids the candidate and his organization to create the impression that independent voices support him or oppose his opponent, when in fact the voices are those of the candidate himself, playing ventriloquist. Cf. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 351, 354, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). But if instead, as the plaintiffs argued, the statute reached all persons, then it was a blanket prohibition of anonymous campaign-related speech (unless the speech is costless, for it is only the identity of someone who pays or contributes to paying, either directly or by soliciting payment, for political advertising that is required to be disclosed), and thus might discourage political speech by exposing persons who want to express themselves for or against a particular candidate to the risk of retaliation, a risk from which anonymity would shield them.

Although the McIntyre decision held that government may not forbid the distribution of anonymous campaign literature, id. at 357, 115 S.Ct. 1511; see also Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), several subsequent decisions upheld statutes similar to the Indiana statute interpreted to reach all persons. Federal Election Comm'n v. Public Citizen, 268 F.3d 1283, 1287-91 (11th Cir.2001) (per curiam); Gable v. Patton, 142 F.3d 940, 944-45 (6th Cir.1998); Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 646-48 (6th Cir.1997). Those cases point out that the statute struck down in McIntyre applied to issue referenda as well as to candidate elections and that only issue referenda were before the Court, a difference on which McIntyre had relied to distinguish Buckley v. Valeo, 424 U.S. 1, 80, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), which had upheld a provision of the federal campaign finance law that was similar to these state statutes. "The Federal Election Campaign Act of 1971, at issue in Buckley, regulates only candidate elections, not referenda or other issue-based ballot measures; and we construed `independent expenditures' [in Buckley] to mean only those expenditures that `expressly advocate the election or defeat of a clearly identified candidate.'" McIntyre v. Ohio Elections Comm'n, supra, 514 U.S. at 356, 115 S.Ct. 1511. The opinions that distinguish McIntyre also point out that Ohio had defended its statute only on the basis that knowing the author of a document helps one to evaluate its truthfulness, whereas a weightier ground is that "disclosure protects the integrity of the electoral process by ensuring that the words of an independent group are not mistakenly understood as having come from the mouth of a candidate." Federal Election Comm'n v. Public Citizen, supra, 268 F.3d at 1288; see also Buckley v. Valeo, supra, 424 U.S. at 66-67, 96 S.Ct. 612; Gable v. Patton, supra, 142 F.3d at 944-45; Kentucky Right to Life, Inc. v. Terry, supra, 108 F.3d at 646-48; Seymour v. Elections Enforcement Comm'n, 255 Conn. 78, 762 A.2d 880, 886-87 (2000). It also deters corruption by identifying large contributors who may be seeking a quid pro quo and — a related point — it provides information helpful to the enforcement of the provisions of election campaign law, both also being purposes that had been emphasized in Buckley, 424 U.S. at 66-68, 96 S.Ct. 612. See generally Malcolm A. Heinicke, Note, "A Political Reformer's Guide to McIntyre and Source Disclosure Laws for Political Advertising," 8 Stan. L. & Pub. Policy Rev. 133 (1997).

Although the Indiana statute is inapplicable to issue referenda (the only type of political campaign that McIntyre had considered), we realized when we first heard the appeal in this case that if the Indiana statute reached political advertising wholly independent of the candidate or his campaign organization, a serious constitutional question would be created. Interest groups contest issue referenda just as candidates and parties contest elections of officials, and so the public interest in knowing the source of an anonymous contribution to the debate is as great in the one case as in the other, though it may be small in both if the contributor is an obscure individual. The Court in McIntyre said that "insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude," and added that in the case of "a private citizen who is not known to the recipient, the name and address of the author add little, if anything, to the reader's ability to evaluate the document's message." 514 U.S. at 348-49, 115 S.Ct. 1511. Yet this too is an observation that seems apt to campaigns to elect officials, as well as to issue referenda, though perhaps less so than in the latter case.

Our doubts about the constitutionality of the Indiana statute if interpreted more broadly than the state thought it should be interpreted impelled us to certify to the Indiana Supreme Court, pursuant to 7th Cir. R. 52 and Ind.Code § 33-2-4-1, the following question:

Is the term "persons" in Ind.Code §§ 3-9-3-2.5(b)(1), (d) limited to candidates, authorized political committees or subcommittees of candidates, and the agents of such committees or subcommittees, or does it have a broader scope, and, if so, how much broader?

317 F.3d at 725. The Indiana Supreme Court accepted the certification and ruled that the statute was not so limited; that "person" means "person" — any person. It thus rejected the state's narrowing construction. 792 N.E.2d 22 (Ind.2003).

The litigation in our court then resumed. With the major constitutional challenge to the Bipartisan Campaign Reform Act (popularly known as the McCain-Feingold Act) pending in the Supreme Court, we decided to hold off on further consideration of the appeal until the case was decided, because the Act contains a provision rather similar to the Indiana statute challenged in this case. When the Supreme Court rendered its decision, McConnell v. Federal Election Comm'n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), we directed the parties to submit memoranda discussing the bearing of that decision on the appeal; and they have now done so.

The constitutional issue now ripe for resolution is difficult because it entails a balancing of imponderables. On the one hand, forbidding anonymous political advertising reduces the amount of political advertising because some would-be advertisers are unwilling to reveal their identity. On the other hand, the quality of the political advertising that continues to be produced and disseminated under such a regime is enhanced because the advertising contains additional information useful to the consumer. The avidity with which candidates for public office seek endorsements is evidence (as if any were needed) that the identity of a candidate's supporters — and opponents — is information that the voting public values highly. In areas of inquiry where logic or exact observation is unavailing, a speaker's credibility often depends crucially on who he is. As Aristotle said, "persuasion is achieved by the speaker's personal character when the speech is so spoken as to make us think him credible. We believe good men more fully and more readily than others: this is true generally whatever the question is, and absolutely true where exact certainty is impossible and opinions are divided." Aristotle, Rhetoric, in 2 The Complete Works of Aristotle 2152, 2155 (Jonathan Barnes ed.1984). "Where exact certainty is impossible and opinions are divided" is a pretty good description of politics.

Can we get help in answering the thorny question presented by this appeal from the case law, and in particular from the Supreme Court's recent and very lengthy opinions in the McConnell case? The provision of the Bipartisan Campaign Reform Act that is analogous to the...