By Patsy R. Brumfield / Daily Journal
ABERDEEN – The constitutionality of Mississippi’s campaign finance reporting laws remains at issue in federal court today.
U.S. District Judge Sharion Aycock heard more than 2 1/2 hours of legal back-and-forth over whether a Lafayette County citizens group’s free-speech rights were stymied by state registration and reporting requirements.
Five Oxford-area residents filed suit in just prior in 2011 and challenged Mississippi’s campaign finance laws.
They did not, however, register as a political action committee to accept responsibility for organization, filings and accounting requirements.
Aycock had numerous questions for the lead attorneys and aksed for additional legal viewpoints on trends, legal precedents and possible contradictions in the state law.
In the end, she asked them for more specific cases and information as it relates to the balance of public benefits versus group burdens as a result of the state law.
Just a few weeks before the state’s 2011 election, the Oxford group wanted to financially support a viewpoint about a ballot initiative to change eminent domain law.
But, to do so, state law required that if they were to spend more than $200 in a calendar year on promoting their viewpoint, they must register with the Secretary of State’s office and make periodic reports about their spending.
The plaintiffs insist the process is onerous and “chilled” their free-speech rights.
Willful violation of the law is a misdemeanor punishable by a fine of up to $3,000 or six months in jail or both.
Attorneys are Paul Avelar of Arizona for the plaintiffs, and Harold Pizzetta, assistant attorney general representing his office and co-defendant Mississippi Secretary of State, which oversees state election laws passed by the Legislature.
In November 2011, Aycock declined to grant the group an exception to spend money for newspaper advertising by side-stepping the state process while she considered the wider legal issues.
• • •
(Below is a running account of today’s hearing in Aberdeen federal court. Please excuse the typos and other glitches likely as I type rapidly. Consider some of this paraphrase.)
The five plaintiffs are Vance Justice, Sharon Bynum, Matt Johnson, Alison Kinnaman and Stan O’Dell, along with the Institute of Justice, based in Arlington, Va.
Justice and Kinnaman attended the hearing. Assisting Avelar was Diana Simpson, a constitutional law fellow with IofJ.
10:03 – Aycock opens the hearing on oral arguments for summary judgment, which is a legal term asking for a decision in favor of one side or another.
JUDGE – This is the approach I would like to take. Blake Adams is the law clerk in this case. He has more expertise in this than I do. We have some questions and some of it deals with statutes and some deals with practical implications so that I can have a better understanding of how this has worked, how this is playing out across the nation with challenges to these campaign finance laws.
I like candor and not fluff. I have pages of fluff here (she points to briefs). I need you to answer my questions as candidly as you can. I won’t always ask questions as it should. There’s a lot of material. If you don’t understand what I’m asking, please tell me so. We are searching for a correct resolution of this on how to best address it. Because I ask it, doesn’t mean I’ve made up my mind. Should stress – we are in the ditches about this and to make some sense out of it. Don’t assume anything from the questions that I ask. Try to give me straightforward answers or that you don’t know.
So, the court has before it cross-motions Plaintiffs, for summary judgment – asks the court to declare to dispatch reporting threshold. Has the state cross-motion… states its constitutional with no issues about other states and their reporting thresholds. Are we at a point that you both agree there is no genuine issue of material fact, that this case can be resolved at district level on motions for summary judgment.
LAWYERS – We agree.
JUDGE – May we state you have so stipulated? (Lawyers – yes)
I’ll be all over the page. Questions aren’t in any order.
To State: Essentially the state says Chapter 17 applies to constitutional initiatives. Therefore reporting requirement is Chapter 17. You make reference to 23-15-803C and I’m curious. Was this an oversight … contend that 15 doesn’t apply? Why cite 15 if this is about 17?
PIZZETTA – Correct, that is an error on my part. Actual is 23-17-49. Reporting requirements, within 10 days.
JUDGE – Only Chapter 17 applies? (Pizzetta – one other, enforcement provision in 813 makes cross reference to Chapter 17. Enforcement of all the law. Sets forth what SOS can do. In terms of actual reporting requirements for constitutional challenges, that is Chapter 17.)
PIZZETTA – 23-15-813, think only other reference was in a deposition (Turner). Many requirements are similar, but she said if ambiguity, look to Chapter 15 to resolve ambiguity.
JUDGE – Chapter 15 proscribes that SOS shall create forms to aid the user and forms were created? (Pizzetta – yes). You also, as AG but as SOS today, you also have created forms for compliance with Chapter 17. But I don’t find any requirement in Chapter 17, unlike 15, to produce the forms. (Pizzetta – At SOS, have separate forms for initiatives or candidates.) But I cannot find directive under 17 for forms to aid person interested in a ballot initiative. (Pizzetta – I have not looked at that question. First, about general provisions for SOS forms. Legislature may be instructing an officer to complete a task, may have authority to do what is necessary to conform with the act. Other answer, in Chapter 17, discussion … of statement of organization shall be filed. Anticipates that someone must develop that statement of organization. SOS likely obliged to do that.)
That is becoming more important to me.
Chapter 15, you said doesn’t apply. Requires SOS to develop forms. But they aren’t ones you contend they have to complete. You contend they must comply with Chapter 17, and SOS developed forms to help assist compliance with Chapter 17. I represent there are numerous errors in Chapter 17 forms. They don’t comply with statutory requirements … Chapter 17 cite requirements under Chapter 15. Numerous. We’ve marked it up. Numerous ones.
Question, whether it is unconstitutional as it applies to plaintiffs, I’m asking myself… they msut comply with Chapter 17 and forms were wrong, they still ahven’t complied with Chapter 17? Does merely their completion of unrequied forms mean they have complied?
PIZZETTA – If they filled out a form we provided through Chapter 17 and they filled it out, then if we said you ahve violated 17 because of way you answered our questions… I think we would ahve a serious.. under state law, misinterpreting state law. May not even have to get to the constitutional question… like SOS isn’t complying.
JUDGE – What if SOS says doesn’t care, they haven’t complied.
PIZZETTA – Raise serious questions.
JUDGE – To Avelar, I’m suggesting Chapter 17 forms do not address the requirements … really related to Chapter 15. (Avelar – That is correct.) Buyt your plaintiffs never filled out those forms. Almost a concession that is SOS provides incorrect forms, if they did and SOS said still not complying. But they never filled them out, so how can they have violations?
AVELAR – Confusion with the form demonstrates the complexity and confusion of the statutes. That confusion is one of the burdens of the problem… chilling effect. Even if they don’t fill it out, still presented with confusing statute to comply with.
JUDGE – They are. But that’s not … I really don’t understand it … how is it… you know that now because we’ve done all this work. You now know those forms would not have complied. But they didn’t know that when they decided not to be involved in initiative process because of threshold.
AVELAR – Did they know. Concerned and confused. This burden of confusion falls heaviest on small groups like our clients from Oxford. Burdensome if confusing, especially for small groups.
PIZZETTA – May I add something? We have a history of compliance with this statute. We know that of all the ones who filled out the forms, at no point did SOS say you have filled them out but violated Chapter 17. Is there a way SOS could have interpreted in violatino of federal law? Possibly. But did he? No. Never went back to those who filled out the form and said we’ll enforce. Turner … object is to get disclosure and forms accomplish that. Track record. No testimony from anyone that says they were confused about the forms. Actual people who filled them out … one person in this brief … said she didn’t now what to do, called SOS, they provided form, answered her questions and she filed them. Are there parts of the forms to be fixed? Does that make the scheme unconstitutional?
JUDGE – That’s the heart of the question – must the court find that as applied to these plaintiffs, there is a constitutional violation … because the state … created forms that contained numerous errors that even if they have complied and completed forms… which they did not … that they would ahve been out of compliance with Chapter 17 – subjecting them to the burden of enforcement. Does this make it a burden … completing erroneous, non required forms?
PIZZETTA – Think court will be satisfied that SOS has the authority to make these forms to satisfy the statute. (Judge – Look at the Guide, which only addresses Chapter 17. Different one for Chapter 15, for initiative. Do you ahve a statutory obligation to produce this guide?) I’m not sure about that. I’d say they have obligation to produce the form in Statute, no necessarily this guide. But part of the education effort .. tht good government should do.
JUDGE – Guide suggests citizen do certain things only provided under Chapter 15. So, yes, I’m a citizen, trust me. But as a federal judge, don’t know if I understand this better than a citizen, especially when I’m picking up a form not technically correct or that complies with the statute. Greater burden if I had to look at Code book and figure out how to do this and write a letter to SOS to comply with 17 to get involved in an initiative. That seems like a burden.
PIZZETTA – I don’t think allegation … that I sat down to fill out the form and were confused. But for specific allegation, saying thought it conflicted with the statute, might apply. Forms don’t match … is that proper way? They never filled out the forms. Way to resolve is to deny the challenge. May be that SOS should change the forms and alleviate these errors before we have another challenge.
JUDGE – This discussion .. for now, let’s say there is a challenge. (To Avelar) I an get there, but can’t figure out how they got hurt or injured or why they are entitled to … they never completed forms, they hever formed organization, were never penalized … they didn’t participate in the ballot initiative … so, how are they injured?
AVELAR – A pre-enforcement challenge … that they would ahve been subjected to. Supreme Court says … mere existence of schemes have effect of chilling speech … not going to require violation but to have the ability … to come to court without violation. (Judge – remedy?) Remedy is that plaintiffs were going to do what they set out to do … buy newspaper ad … it costs more than $200 … therefore we would have become a political committee and subject to regulations… we think that is wrong.
We view … essentially two kinds of arguments we made. First, that informational interest to justify this scheme doesn’t appy to ballot measures at all. However, if it does … there is a level below which that interest no longer applies. When burdens outweigh the benefits … scheme becomes unconstitutional as applied in tht scenario. Recent federal decisions… how big is that circumstance (he cites rulings)? And so, although plaintiffs never filled ou the forms, they were aware of the statutory scheme in general and were aware that they may not be able to coply with it because of the burdens set up because they were confused by this. They therefore did not engage and exceed the $200 threshold.
PIZZETTA – This isn’t a path we anticipated. But I don’t remember that being an allegations. What I remember was allegations that non-registration had nothing to do with their non partiipation. It was they didn’t want to comply with reporting. (Avelar – We say it is all very confusing. Chills our speech and substantive requirements put on us, thus we were afraid and didn’t go beyond. Confusin with the forms is evidence that the statutory scheme is complex and would confuse people. If forms don’t match rquirements, how is it that regular people understand?)
PIZZETTA – Let me explain forms. SOS would say that forms match statute. May be incorrect. But form … he has not produced forms that he knowingly vioaltes the law. He’s entitled to interpret those statutes. Are the forms themselves … do they vioalte the First Amendment? Going back to burdensome. Answer, no. Just looking at these forms in isolation. Does it chang … if SOS forms don’t exactly comply .. I think not. Onlyif they had filled them out. But we’re telling them to fill out. They didn’t but many many people did.
JUDGE – But important that I not burden Mr. Hosemann with obligation or arbitrary discretion … this time I’ll say do this, another time I won’t. I am concerned about .. HAD they completed the forms, they were not in compliance.
PIZZETTA – I think SOS would differ. Best evidence is that others filled them out. He did not from 1st Amendment standpoint … not comply. But is that a First Amendment issue when he hasn’t done anything but ask them to fill out forms, and once they did … SOS’ record in the election… that he doesn’t take an unusual enforcement stance. I think … if you don’t do certan things … SOS’s concern is to get information out there … a good record. Think that would be reassuring that there isn’t an unreasonable interpretation. But this is a different argument – substantial complaince to make it the last burdensome reporting requirement.
JUDGE – But isn’t there a difference? Not about arbitrary enforcement by SOS. we’re talking about validity of a statute to put burdens in place. Not enforcement, it’s afterthought. But it could have a chilling effect on these plaintiffs in Oxford, thinking they want to get involved with ballot initiative … read statute and it’s confusing. So, I think I msut look at in light of their mindset at time making the decision to involve themselves in process or not. Not whether after, they might or might not based on how SOS felt about enforcing the law.
PIZZETTA – Facial challenge supports us. No evidence that we interpreted it different from statute and form. On its face it’s easier to say the forms don’t burden speech. When I hear your questions … I think … First Amendment … imagine situation where they come up and say I’m concenred that SOS will read this provsion in an unreasonable way. But no credible threat of enforcement. Materials say fill out forms. No evidence SOS is going to make you … put you in unreasonable position.
JUDGE – Valid point. Bourne out by document attached to .. Exhibit 8 … lists … 10 groups in last year’s election 2011 .. interstedin ballot initaitives… personhood and eminent domain. Ten groups had money contributed and spent. Let’s take Farm Bureau, who wanted to promote same initiative as the plaintiffs… FB did not comply with Chapter 17 because they did not file statement of organizaiton, yet they spent $600,000 and SOS arbitratrily arguable elected not to penalize FB for not techically compying with Chapter 17. These plaintiffs wanted to spend coupel of hundred dollars because they were afraid they would be subjected to enforcement.
If we’re alking burdens and benfits: More important for voters to now about 4 people in Oxford .. or more important to know who was behind initiative by FB that spent $600K?
PIZZETTA – PERSONHOOd AND FB, had other identification of backers. SOS enforcement was substantial compliance. FB already had documents on file like statement of organizaiton Not arbitrary .. SOS went out of way for substantial compliance, not just to penalize for small problems. SOS says want to encourage monthly filings. Had these plaintiffs not filed Sstatement of Org and spent money, … and SOS said no… that would ahve set up a challenge. But SOS did not do that. They took very lenient position to file the forms … it’s hard for me to go back to SOS and say, These plaintiffs rights were violated because you allowed substantial complaince for others … some disconnect… by ot strictly enforcing at every turn.
JUDGE – Kind of a crazy argument to make … but I asked clerk … make sure that FB statement was not filed. I’m in a [position as a citizen at home at a computer… which would ahve told me things what statute says are important … are not required yet they spent $600K. (Pizzetta – they filed a monthly report.) They did, but didn’t tell me who was behind the initiative. I understand … that state on behalf of citizens would enact laws and disclosure to enable citizen to see where the money is, to see who is behind it, who stands to benefit or lose. It’s all about the money. If I go to public Web site and look under FB and see they haven not given MS that information …. that law hasn’t helped me.
PIZZETTA – Monthly reports … they filed them. Monthly report … tells you who FB is. Only information that voters did not have without statement is name and address of officers of FB. Your point is valid … because didn’t file statement, missed some small information. (Judge – but not me) But you have access to monthly reports. You’re right, they didn’t file statement of organization … but monthly. If SOS came after them … a valid challenge. These plaintiffs.. they didn’t want to make disclosure at all. Disconnect between that and point that forms didn’t match stattue. SOS may need to go back and correct them.
JUDGE – LET’S GET AWAY FROMF ORMS. Let’s look at statute: Requires statement of orgaization. Purpose … is that is contains important information … that I as citizen should ahve access to before I vote … because I can tell if it’s a wolf dressed in sheep’s clothing. Figure outwho’s behind thiseffort Who’s going to make money.
AVELAR – That’s it. INFORMATION is forced and then allowed voters make more informed decisions about ballot measure in front of them. (Judge – you think $200 is too low threshold?) Yes. Issus is burden versus benefits. Courts have said … when you’re talking about low -level speech, the issues are different. So problem fro our perspectives is … facts say that MS may require disclosure … but in this insance, it can’t because we don’t fit the concerns of the information. Our disclosures don’t further interests of the voters… because we are small. Burdens are greater.
Question if plaintiffs could count on strict enforement or not? (cites court case) Can’t reply on plain enforcement of the statute… chilling effect on free speech.
JUDGE – I do get that. If it’s not clear and precise … not technically complied with, Hosemann would not do it. But arbitrary enforcement because they could? (Pizzetta – CAN’T ASSume state will act unreasonably.) I’m not. But may have a chilling effect to think Hosemann may come after them. ( Pizzetta – rightfully concerned. But statute was not applied in this way.) Taht’s what bothers me, that it wasn’t applied.
PIZZETTA – Cases …
JUDG E- To Avelar, do you agree you don’t have any ase law on $200? (Avelar – WE haven’t made that claim. Our challenge, that the information al interest does not apply to ballot measure.) But have been circuits have found informational interest does apply. (Avelar – Yes. 9th and 10th disagree. conflict) I’m treating this as an applied challenge.
PIZZETTA – As I remember, the complaint only alleged they wanted to spend more than $200. Didn’t say how much. No evidence that distinguished from $43,000. (Judge – assuming $200 threshold is not totally without rationale… assuming court believes that threshold is rational… that that alone does not create a burden to plaintiffs … then, I think we’ve covered the reporting issues that concern me. What might you add that is chilling or so burdensome?)
AVELAR – I understand. From our perspective, whether or not burdens outweigh the benefits. Standard other courts have applied. Without rationality should not apply here. (Judge – OK.) But questions about burdens … first, ust know there are statutes, laws governing. Testimony, woman said she set up website about ballot issue and she because subject to statutes that she had no way of anticipating. Have ot know burden. Second, understanding what the law says. It’s complicated. Requirements are ot always clear as to what you must do. Understanding the law is coplicated. For a conttibution… means anything of value. For woman, two hours or her work. Could be donated signs … discount on printing… can be lots of things. Same as IRS 1040 asks income … contributions or expenditures are slippery.
JUDGE – Find Wwoman’s statement almost benefited the state, not complaintiff. Computer programmer wants to get involved. She doesn’ tinow about laws. Somebody suggests she should check. She looks at guide, forms. She says SOS was helpful. … but more money we started getting in, took more time and reporting. Doesn’t that go back to reason for the law? She collected $22K for this initiative (Avelar – ultimately collected that much. Initiatlly she set up web site. It was doing that that subjected her to the law. She said, well I might as well keep going. But we can’t assume that everybody will say, I’m regulated and what the heck. Different from, I’m afraid of the statute. Should have been her choice if she were goingt to be a political ommittee. Should have been her choice. In this case, with such a low amount … not $22K … they didn’t pla to spnd more than $1,000. At that level, is the same interest? Some courts say no for such a low amount.
JUDGE – How does citizen benefit if 5 people in Oxford know they raised $201? Knowing that. (PIZZETTA – Two things for low-dollar organizations … One, is an aggregate of the information. Not a lot of information but the idea in the aggregate it tells you who is sponsoring a particular initiative. Cites California initiative with outside-state donors. Second, an informational interest even for $25 gifts. Identify is the issue. That sitting governor has given money says a lot … amount may be small, but who is giving is strong message. So even smaller dollar organizations say a good deal in reports. One other point – I’m not sure … issue … what is plaintiffs standing to raise issues about other … not sure they have standing to say SOS doesn’t enforce in a way that doesn’t effectthem.)
AVELAR – Cites case from 9th circuit… $25.01 contribution reporting requirement. 9th distinguished between two types of burdens .. group that must otherwise report, needs to report about contributions. 9th distinguished …. what we’re saying about requirement to report, disclosure reporting. On issue of whether they hae standing to argue about other people … using them as examples of burdens that apply to all would-be comittees in Mississippi. To give examples of burdens inherent to statutes themselves. Complications arise from statute. Finally … talks about plaintiffs past politial involvement and their interst for the future.
JUDGE – I think I recall language… their intent to incorporate their issues with others.
I want to go back to my questions… Chapter 15 versus 17 issue. State says only 17 applies, plaintiffs say both. Is it confusing. (Avelar – one burden) If I determined that because of a number of things … OK … bear with me. It might be confusing to a citizen… 15 similar to 17. 17’s forms make refernce to 15 requirements. Chapter … the Guide … doesn’t give me clear guidance between 15 and 17. Then I have this issue … if state correct that 17 applies to constitutional amends, and that 15 applies to ballot measures, then why was it necessary for the state to come back to tell me in 15 that the flag initiative was a ballot initiative? Legislature amended and inserted in 2001, they said the flag vote was not a constitutional amendment, hence it wasn’t governed by 17. But I’m suppose to know that 15 applies? (PIZZETTA – I’m not following. Is it confusing?) I’m not even sure Legislature understood. Did they mean to amend Chapter 15, that onloy deals with ballot initiatives, not constitutional amends, and they knew the flag wasn’t a constitutional amendment?
PIZZETTA – As I undertand, flag wasn’t constitutional but statewide ballot initiative. Flag is a15 not a 17. Legislature specified. A process how does this work? Did SOS eer put somebody in a trap oer this? Important that SOS … does education efforts and gets the word out. That’s always part of this. Part concerns this … 2 tracks… arguments by court concerns about how it works. Larger arguments, more … about burdens to reporting… would put this court on another track. IN this instance, did MS do this wrong? Our thresholds and laws are very similar to other states. Forms are very straightforward. To make it as easy as possible. Did MS do something wrong with forms? If somebody had fallen into that trap … could ahve been an issue, but it wasn’t.
But otherwise for $200 and one-page form, MS is in line with other states. Substantial compliance makes that point.
JUDGE – Confused about 15 or 17. Read about ballot measure or balloted measure, but not a constitutiona amendment. That was confusing to me. And so for purposes of today, I am of the opinion thqat there is some ambiguity between 15 and 17. Lay citizen .. might pick up 15 and ask if this applies to me? So, for today, if I see ambiguity as ot whether 15 or 17 or both applies to thse plaintiffs, then, … we’ve looked ahead about canons of construction and maximum construction would be … to sort out ambiguity.
But I get back to Chapter 17 … think I’m going to ask you to assume that I think there is ambiguity for these plaintiffs. Ask you to brief why or why not these apply… do not resolve the issue?
AVELAR – Applications of canon construction may lead back to oly 17. For our purposes, the confusion that results from those statutes in the problem. Even applying them doesn’t solve our problem. The confusion is still on the face of the stattues… even if only 17 or 15 … still have the burden of the rquirements under each. Formation, registratoin, reporting, acocunting etc. burden – for our purposes … confusion between 15 or 17 illustrates the confusion for us. Becomes difficult for an average person.
JDUGE – You ahve just made a valid point. I have jumped ahead, to figure out statutes. From your point that’s not hte point… point is the very confusion itself. Turning question is – hae they picked up 15 or 17 they would ahve been confused. OK
pizzetta – BUT THEY are not reading these in isolation. Let’s sya, only info they have is statutes. I don’t think you would say there’s confusion. 17 entitled Amendments to Constitution. What would I tell Legislature …. now put in two statutes.
JUDGE – When they clarified with flag statement.
PIZZETTA – But where would you look? Guide points you to Chapter 17. Sets out what you’re suppose to do. SOS also produced the form … at least clear which you fill out and how it complies with statute. Take a step back .. if court would say it’s confusing… but here’s death-knell issue… Avelar will say never get over that. Always going to be someone who says I’M CONFUSED. Is there evidence in their testimony who says they were confused. Don’t think so. Also, did SOS do anything strange to create confusion? None. Just to say confusion … somebody is alwasy going to say that. It’s a hard standard to articulate.
AVELAR – On that point … Guide does not refer just to 17 but also to 15 or campaign finance guide. WE’re back to confusing laws that chill speech – problem.
PIZZETTA – Reminds me of case … party challenge said closure time wasn’t stated. Remember aguments … she finally said, election law is not written for Numbskulls. Reminded us that there is always about drafting and applying laws. Had there been evidence of massive confusion … (JUDGE – Good issues. Looking at the evidence… what evidence in complaint is there that plaintiffs were confused about application of 15 or 17?)
AVELAR – Don’t hae complaint in front of me. It talks about their concern about complying with statutes. Doesn’t say they were confused about 15 versus 17. Says … (judge – BUT YOU’VE got to tell me how they were confused) Burden … on face of the statute aren’t justified.
PIZZETTA – Not allegation they didn’t know what forms to fill out. To make it constitutional, they need to know which to fill out. Don’t think there’s an argument they didn’t know which. Isn’t it hard to make when forms were provided. They knw about the right forms to file no later than preliminary injunction hearing. But they stuck their heads in the stand up to that point.
JUDGE – (Asks clerk about language about confusion in filing?)
AVELAR – On forms question, even if perfectly clear which form? … fact that they were rquied to complete forms in first place has a chilling effect on their speech. This isn’t about the forms… it’s about the government’s laws. That’s what’s at issue. Example, to fill out forms, must understand what the law requires. Like IRS 1040, must understand some aspect of the tax code. To fill these out, must have some underlying understanding of the election law. Steps you have to take to form, register, report, now about law, accounting… all are burdens that every court that has ever looked at recognize as real burdens.
JUDGE – Put hat on as SOS, seriously … what would have been more rational?
AVELAR – Don’t think that’s the question. What are the state’s interests? As SOS, apply laws where we have legitimate interest. (Judge – What threshold would you apply as SOS?) Would look to other states. At all levels. What courts have said about small groups … setting level is question for the Legislature… but doesn’t insulate decision from judicial review. (JUDGE – But SOS has informational interest in plaintiffs’ interest in spending less than $1,000?) I don’t see that. (More than $1000?) I can’t tell you where the line is. Courts … have asked, is there an important interest? (Judge – It strikes me that $200 is too low but maybe a $1000 is more reasonable. But really, what does a citizen benefit by knowing those folks in Oxford were going to spend $200?)
PIZZETTA – I hate to say … number of state have Zero Dollar registration requirements. You are forming a group. Individuals don’t have to register…only when they form that group. Was state rational in saying $200? Not in line with some, lower than others. But MS is a less expensive place. It does make a difference. In the end … one of those opinions for court… to say if I were a legislator, I would do this different, but I can’t say it’s wholly different…
AVELAR – Those other case didn’t deal with same issues. Others dealt with disclosure … about large organizations … not small group that we’re dealing with here. It’s important because of large money. Case for small groups … only a few. (JUDGE – You say in conclusion, that US trend is to provide greater protection to small groups. What other case do you cite in that trent?) Cites Wisconsin cases. 9th circuit.
JUDGE – you cite small-group trends. Have there also been cases that have upheld the in place burdens against small groups? (Avelar – not that I know.) Follow up on that for me. Trend nationally is to treat small groups differently? VErsus those raising large amounts. What have other courts done? (Avelar – relatively few cases nationwide dealing with small groups This one, another in Arizona, cites 4 others. Other campaign finance rulings. Haven’t dealt with small groups. But even with large groups, court was very careful to carve out conclusions about informational interests … doesn’t apply to small groups.)
JUDGE – Also want you to brief 15 versus 17 issues. Make argument, that I believe is ambiguity, …question is mere fact of confusion. I want to weigh that out. Talk about experts. State filed motion to strike certain experts.
PIZZETTA – Particular way you want us to order this, for briefs? (Judge – don’t know yet.)
JUDGE – On plaintiffs expert … Daubert challenge, that he is not employing reliable data and that his testimony isn’t a result of reliable methods. I’m really concerned about this guy thinking that he can get into the Minds of a Mississippi voter. I bet he’d be hired by a lot of Mississippi groups, if he could. (Avelar – He first talks about MS system, also lack of informational benefit to voters.) Do I need an expert? Concerned that he is subjective about MS voters. Problems with his information … and don’t now I should consider it or would it survive Daubert challenge on reliable methods. Not sure experts aid in determination, matter of law versus facts.
AVELAR – Some courts … look at burden on face of statute and also… burdens with evidence of the record including testimony from him … as a political scientist, measure the impact of government decisions on subsequent behavior.. on this, voter behavior. He found in a Florida experiment … provision of campaign disclosure information, plus other available info on ballot measure, had no marginal effect on their knowledge about the measure. Said SOS’ summary was more informative. Here, he extrapolated … if his cues were also available in Mississippi. Found, yes, all that stuff existed. He said disclosure was incredibly small… about benefits of campaign finance requirements. People assume it results in informational benefit. Supreme Court … has talked about marginal benefits of laws or lack of benefits. Campaign finance info … can’t be treated as if it’s the only information out there. That’s what expert did.
As to burdens, he looked at that. His conclusions are result of a proper scientific method. He’s not necessary. Plaintiffs can win without him. Still apparent that benefits and burdens are still too far askew.
JUDGE – While I appreciate it’s important for somebody to study … I don’t know that I need … that a citizen needs from informational interest standpoint… from the benefit. Common sense is that a citizen would benefit more by knowing about Farm Bureau’s expenditures that blasted all newspaper statewide, compared with 1/4 page in Oxford paper by a small citizens group.
AVELAR – Add, that if state has concerns about expert, will bring him here for a hearing so you can address these questions. Can bring in other political scientists to talk about his methods, even if they disagree with his conclusions.
JUDGE – Right now, not suggesting Daubert hearing for experts. Strikes me I don’t need that expert but will give it other thought. Ms. Simpson’s declaration … she inserts her subjective opinion into summary. My inclination is not to consider either. If you wish to address it … (Avelar – if court can’t consider her declaration, it could consider her summary.) I understand that she said she went to SOS …just that in my practice … I want to see her. I want to see the underlying facts and where they came from. I will look at the data. I open that up for discussion in your briefs.
I think I have asked my questions. (To clerk – do you have others?) When we come back, we’ll think about anything else. I want you to think about other things that have or haven’t been addressed that you think you need to reinforce in my mind. Give you opportunity to file briefs – underlying data, differences beween 15 and 17 and their applications, I’m inclined not to receive expert deposition, and trends/cases dealing with small groups or associations.
12:09 – TAKE SHORT BREAK.
12:40 – JUDGE BACK
JUDGE: Any benefit to you to stipulate what the maximum would have been spent by the plaintiffs? You alluded to $1,000. Does that help narrow the issue? It might be a benefit to us all to deal with exactness, if we knew what they would have done.
Mr. Avelar, every time I try to oversimply I get in trouble. But I want to leave this courtroom with a simple understanding to your claim.
To a facial challenge – you are not challenging the statutes based on overbreadth? (Correct) Vagueness?0 (No.) Two-fold as I see it – Plaintiffs contention that it is never appropriate or justified in a ballot measure to require this kind of disclosure scheme? You say information isn’t in state interest in ballot initiatives? (Avelar – informational interest does not apply to ballot initiatives. May apply to candidates.)
One argument for these statutes, OK? (yes)
Second argument – because that threshold is so low, because benefit versus burden is insufficient … you argue that there ought not even be a rquirement to disclose at all in a ballot initiative because there’s no valid information al interest But if you force me to report, then MS’s law is unduly burdensome to small groups in particular because of the small benefit state gets from that information. (Avelar- oversimplified yes. Because they would have spent so little.)
So, I think I can represent you that I am leaning of the opinion based on other case law, there is a general benefit … the informational interest for the state is a benefit. Can you argue… really concentrate on burden versus benefit as it applies to small groups.
Pizzetta, I want you to help me determine … any case where a state has upheld this low $200 threshold versus $200 itemization threshold in small group situations.
Avelar, other points? (Avelar – Clear up two points. One group filing versus individuals Under Chapter 17, both must file at $200+ threshold. Also, my clients are libertarians, not liberals. … (little joke… laugh). Add that this case requires application of exacting scrutiny is the standard. Issue then is the benefit versus burdens for small groups like the plaintiffs.
AVELAR – Must know law exists, must register, report in statement of organization, appoint treasurer, keep detailed accounting of what receive what you spend, who you get contributions from, track of their employers and occupations, also keep track of where you make expenditures. Reported to clerk monthly. To understand what the law requires. Not just about the forms, about the law. Weigh benefit versus burdens to small groups especially.
PIZETTA – Make sure on same page with exacting scrutiny. If I understand … he approaches as a third criteria. In our response, we explain that those two tests are applicable and measure two different things. Exacting – relationship between disclosure and benefits. Court have been clear that challenge … to report levels … The last part of what Avelar said, helpful to keep in mind, like a Death Penalty argument – if you buy the premise … there’s always going to be a burden but an important countervailing interest. We say that reporting requirements are the least restrictive way to show campaign information.
JUDGE – Created my own confusion, reading all this. Many campaign finance case, but they deal with different issues. I’m now at a point … to narrow it down to those cases most applicable to the plaintiffs’ situation. Help me with that.
12:55 – DISMISSED.
AVELAR – Reported on briefing schedule to judge. Final response March 18 to various briefings.