Majors, Brian v. Abell, Marsha ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2204
BRIAN MAJORS, et al.,
Plaintiffs-Appellants,
v.
MARSHA ABELL, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 98-1479-C-M/S—Larry J. McKinney, Chief Judge.
____________
ARGUED NOVEMBER 1, 2002—DECIDED MARCH 15, 2004
____________
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 §§ 3-9-3-2.5(b)(1), (d), and
makes violation a misdemeanor. § 3-14-1-3. “Disclaimer” is
2 No. 02-2204
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 interpre-
tation, the statute merely forbids the candidate and his or-
ganization 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
(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 pay-
ment, for political advertising that is required to be dis-
closed), 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 litera-
ture, id. at 357; see also Talley v. California, 362 U.S. 60, 64-65
No. 02-2204 3
(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 refer-
enda 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 (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. 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; 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, 762 A.2d 880, 886-87 (Conn. 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
4 No. 02-2204
been emphasized in Buckley. 424 U.S. at 66-68. 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 docu-
ment’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. 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:
No. 02-2204 5
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, 124 S. Ct. 619 (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 ad-
ditional 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
6 No. 02-2204
where logic or exact observation is unavailing, a speaker’s
credibility often depends crucially on who he is. As Aris-
totle 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 pre-
sented 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 Indiana
statute regulates “electioneering communications,” which
are advertisements broadcast within 60 days of a general
election or 30 days of a primary that refer to a candidate for
federal office. 2 U.S.C. § 434(f)(3)(A)(i). Individuals who
spend more than $10,000 producing such communications,
or contribute at least $1,000 to an organization that produces
them, must report (in the case of the contributions it is the
recipient who must report) their identities to the Federal
Election Commission. 2 U.S.C. §§ 434(f)(1)-(2). Without
attempting to narrow the class of covered “individuals,” the
Supreme Court upheld this provision on the ground that
it served “important state interests . . . [in] providing the
electorate with information, deterring actual corruption and
avoiding any appearance thereof, and gathering the data
necessary to enforce more substantive electioneering re-
strictions.” 124 S. Ct. at 690. Like the Indiana statute, the
provision of the Bipartisan Campaign Reform Act that the
Court upheld requires identifying any person who contrib-
utes to the making of the ad, even if the person is not a can-
didate or part of the candidate’s campaign staff.
No. 02-2204 7
True, what is required is disclosure to an agency rather
than disclosure in the political ad itself, but, as is apparent
from the Court’s reference to “providing the electorate with
information,” the identity of the contributor is available
to the public rather than secreted by the FEC. 2 U.S.C.
§§ 434(a)(11)-(12), (d)(2). That may not seem a big difference
from the standpoint of protecting the advertiser from
retaliation, but the Court had earlier indicated that having
to identify itself to the entire audience for the ad has as a
practical matter a greater inhibiting effect than just a re-
porting requirement because it broadcasts the advertiser’s
name to the entire electoral community. Buckley v. American
Constitutional Law Foundation, Inc., 525 U.S. 182, 197-200
(1999). The reaction may not be “retaliation” in any strong
sense, but there is a weak sense as well; there may be a
degree of social ostracism, some dirty looks, a few snide
comments, and such, and we and other courts have long
recognized that mild forms of retaliation can be effective in
deterring the exercise of free speech. Coady v. Steil, 187 F.3d
727, 734-35 (7th Cir. 1999); Pieczynski v. Duffy, 875 F.2d 1331,
1335-36 (7th Cir. 1989); Bart v. Telford, 677 F.2d 622 (7th Cir.
1982); Keenan v. Tejeda, 290 F.3d 252, 259-60 (5th Cir. 2002);
Suppan v. Dadonna, 203 F.3d 228, 234-35 (3d Cir. 2000); Allen
v. Scribner, 812 F.2d 426, 434 n. 17 (9th Cir. 1987).
The Court in McIntyre thought “the intrusion” on freedom
of political advocacy brought about by a reporting re-
quirement was “a far cry from compelled self-identification
on all election-related writings,” 514 U.S. at 355, which is
what we have here—and what the Bipartisan Campaign
Reform Act does not have; it does not even require identify-
ing the specific ads financed by the reporting contributor.
McConnell v. Federal Election Comm’n, supra, 124 S. Ct. at 693-
94; see 2 U.S.C. §§ 434(f)(1)-(2). But of course the very thing
that makes reporting less inhibiting than notice in the ad
itself—fewer people are likely to see the report than the
8 No. 02-2204
notice—makes reporting a less effective method of convey-
ing information that by hypothesis the voting public values.
It’s as if cigarette companies, instead of having to disclose
the hazards of smoking in their ads, had only to file a
disclosure statement with the Food and Drug
Administration.
The only reference to McIntyre by the majority in
McConnell appears in a footnote that distinguishes “genuine
issue ads” from “regulation of campaign speech” and
assumes that restrictions constitutionally applicable to the
latter, such as the restrictions both in the Bipartisan
Campaign Reform Act and in the Indiana statute, might not
be applicable to the former; McIntyre is cited noncommit-
tally as having invalidated a “statute banning the distribu-
tion of anonymous campaign literature.” 124 S. Ct. at 696 n.
88. Remember that McIntyre had only been about issue
referenda, where there are no candidates and so, it might be
thought, “campaign literature” is more likely to consist of
“genuine issue ads.” Thus the Court may have so far nar-
rowed McIntyre (one of the dissenting opinions said the
Court had overruled it, 124 S. Ct. at 735-36) that it no longer
overlaps the Indiana statute.
An alternative interpretation, however, is that because the
Bipartisan Campaign Reform Act and therefore the
McConnell decision are about campaign financing, the
decision is inapplicable to people who pay for political ads
themselves, since they are not engaged in fund-raising. On
that reading, McIntyre, which was such a case, is unaffected
by McConnell, and so the Indiana statute, which is also
about requiring self-financers to identity themselves, is con-
demned by McIntyre’s holding. But campaign financing and
fund-raising are not synonyms, as the argument assumes;
and the Bipartisan Campaign Reform Act is not just about
fund-raising—the relevant provision that the Court upheld
No. 02-2204 9
applies equally to self-financed and other-financed ads. The
disclosure statement must be filed by “every person who
makes a disbursement for the direct costs of producing and
airing electioneering communications in an aggregate
amount in excess of $10,000 during any calendar year,”
whether he produces the ad himself or gives the money to
someone else to produce it, 2 U.S.C. § 434(f)(1); and sections
434(a)(6)(B) and (E) expressly impose a requirement of
reporting campaign disbursements by a candidate from his
personal funds. And the first governmental interest that the
Court recited in upholding the provision—that it would
provide the electorate with information—is applicable to
self-financed ads. An ad might seem disinterested, but if the
voting public knew who had paid for it—maybe it was an
interest group that the candidate was known to have done
favors for—the existence of an interest might be revealed.
To draw the constitutional line between self- and other-
financed campaign ads would be to deliver a gratuitous
benefit to wealthy candidates and wealthy supporters of
candidates.
But what must give us considerable pause, in light of the
distinction the Supreme Court has drawn between “disclo-
sure” (reporting one’s identity to a public agency) and
“disclaimer” (placing that identity in the ad itself), is the fact
that the Indiana statute requires the latter and not merely
the former. Buckley v. American Constitutional Law Founda-
tion, Inc., supra, 525 U.S. at 197-200, invalidated a state law
that required people who circulated petitions for issue
referenda (actually initiatives, but the only and irrelevant
difference is that a referendum asks the people to vote on a
law proposed by the legislature, while in an initiative the
proposal has not been before the legislature) to wear
identification badges. But the requirement was inapplicable
to elections of candidates. Federal Election Comm’n v. Public
Citizen, supra, 268 F.3d at 1287-91, interpreting a provision
10 No. 02-2204
of the previous federal campaign finance law, upheld a
requirement of a disclaimer in a candidate election. But all
that had to be disclaimed (for once, the word was apt) was
that the advertiser was independent of the candidate—yet
the court assumed that a separate requirement, that the
identity of the advertiser be disclosed in the ad, was also
valid. Id. at 1290. There is a similar assumption in
McConnell. See 124 S. Ct. at 710. A statute quite like the
Indiana statute was invalidated in Citizens for Responsible
Government State Political Action Comm. v. Davidson, 236 F.3d
1174, 1198-1200 and n. 10 (10th Cir. 2000)—and upheld in
Gable v. Patton, supra, 142 F.3d at 944-45, and Kentucky Right
to Life, Inc. v. Terry, supra, 108 F.3d at 646-48. Several cases,
signally McIntyre itself, expressly or implicitly contrast the
fragility of the small independent participant in political
campaigns with large corporations or other organizations.
McIntyre v. Ohio Elections Comm’n, supra, 514 U.S. at 348-49,
351-54; Buckley v. American Constitutional Law Foundation,
Inc., supra, 525 U.S. at 197-200; Citizens Against Rent Con-
trol/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290,
292-94 and n. 4, 298-99, 308 n. 4 (1981); Gable v. Patton, supra,142 F.3d at 944-45; Doe v. Mortham, 708 So. 2d 929, 934-
35 (Fla. 1998); cf. First Nat’l Bank of Boston v. Bellotti, 435 U.S.
765, 777-78 and n. 13, 788-90, 792 n. 32 (1978); Seymour v.
Elections Enforcement Comm’n, supra, 762 A.2d at 888.
The Indiana Supreme Court, recognizing this last point,
did a bit of judicial legerdemain, expanding the statutory
exemption for mailings of up to 100 pieces of “mail” that are
“substantially similar,” Ind. Code § 3-9-3-2.5(a)(9), “to
include any form of delivery of any written material, in-
cluding personal delivery or use of some service other than
use of the United States Postal Service,” with the result that
“Indiana’s law permits some individual pamphleteering
and applies only to candidate elections.” Majors v. Abell,
supra, 792 N.E.2d at 27 n. 11, 28. The statutory exemption as
expanded by judicial interpretation protects the most vul-
No. 02-2204 11
nerable independent contributors to political advocacy. And
as we said earlier, to require only the reporting of the
advertiser’s name to a public agency, while it would as a
practical matter allay some of the anxieties of potential
advertisers, would at the same time reduce the amount of
information possessed by voters. Both sides of the First
Amendment balance would be depressed. We cannot say
that the net effect of invalidating the Indiana statute would
be to promote political speech.
As an original matter it could be objected that speech and
the press would no longer be free if the government could
insist that every speaker and every writer add to his mes-
sage information that the government deems useful to the
intended audience for the message, and that it is arbitrary
for the government to single out the identity of the writer or
speaker and decree that that information, though no other
that potential voters might value as much or more, must be
disclosed. But the Supreme Court crossed that Rubicon in
McConnell. Reluctant, without clearer guidance from the
Court, to interfere with state experimentation in the baffling
and conflicted field of campaign finance law without
guidance from authoritative precedent, we hold that the
Indiana statute is constitutional.
The decision of the district court is modified to place the
dismissal of the suit on the merits, and as so modified is
AFFIRMED.
12 No. 02-2204
EASTERBROOK, Circuit Judge, dubitante. Four decisions of
the Supreme Court hold or strongly imply that the ability to
speak anonymously—and thus with less concern for re-
percussions—is part of the “freedom of speech” protected
by the first amendment against governmental interference.
Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio
Elections Commission, 514 U.S. 334 (1995); Buckley v. American
Constitutional Law Foundation, 525 U.S. 182, 199-200 (1999);
Watchtower Bible & Tract Society of New York, Inc. v. Stratton,
536 U.S. 150, 166-67 (2002). See Jonathan Turley, Registering
Publius: The Supreme Court and the Right to Anonymity, 2001-
02 Cato Sup. Ct. Rev. 57. Although the scope of protected
speech has been held to differ across subject matter, the
ability to denounce public officials by name and call for
their ouster is the core of the Constitution’s protection. See
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
There have been times and places in the United States
when opposing elected political officials risked both wealth
and health. Decisions such as O’Hare Truck Service, Inc. v.
Northlake, 518 U.S. 712 (1996), and Rutan v. Republican Party
of Illinois, 497 U.S. 62 (1990), hold that government is not
entitled to retaliate, but what people do in fact often differs
from what they should do, and litigation after the fact is no
cure-all. It is no cure at all for retaliation by private actors,
who are free to penalize those whose political views they do
not accept, provided only that they do not cross the line into
violence—and that line has not always been observed; think
of persons whose candidates were the “wrong” race.
Anonymity thus may be especially valuable when opposing
entrenched actors. Disclosure also makes it easier to see who
has not done his bit for the incumbents, so that arms may be
twisted and pockets tapped. Labor law deems it improper
for employers to nose out union adherents’ names; judges
and members of the NRLB perceive that knowledge may
facilitate retaliation and that fear of this outcome will stifle
No. 02-2204 13
speech. Yet although union organizers may operate in
secret, and everyone may vote in secret (our adoption of the
Australian ballot came from awareness that disclosure could
affect political support), political advocates must disclose
their identities. Today the court holds that a state may
require persons engaged in core political speech to identify
themselves so that the officeholders and their allies can
pinpoint their critics. How can this be?
According to my colleagues, the answer lies in the fact
that McConnell v. Federal Election Commission, 124 S. Ct. 619,
689-94 (2003), rejected a constitutional challenge to §201
of the Bipartisan Campaign Reform Act of 2002, which
amended §304 of the Federal Election Campaign Act, 2
U.S.C. §434. Section 304 as amended requires any person
who makes disbursements exceeding $10,000 in any year for
speech in federal campaigns, or who donates $1,000 or more
to another person or group engaged in advocacy, to disclose
his identity to the Federal Election Commission. Indiana’s
law differs—it starts from a lower threshold (100 sheets of
paper) and requires disclosure to the public in the election-
eering literature rather than to an agency, see Ind. Code §3-
9-3-2.5—but once it is settled that speakers must reveal their
identities directly to the political establishment, five Justices
may think that everything else is mere detail.
Still, the Justices’ failure to discuss McIntyre, or even to
cite Talley, American Constitutional Law Foundation, or
Watchtower, makes it impossible for courts at our level to
make an informed decision—for the Supreme Court has not
told us what principle to apply. Does McConnell apply to all
electioneering? All speakers? To primary communications
(as opposed to notices sent to agencies)? The Supreme Court
wrote that §304 is valid because it is (in the view of five
Justices) a wise balance among competing interests. Yet the
function of the first amendment is to put the regulation of
14 No. 02-2204
speech off limits to government even if regulation is deemed
wise. See American Booksellers Ass’n v. Hudnut, 771 F.2d 323(7th Cir. 1985), affirmed, 475 U.S. 1001 (1986). See also John
Hart Ely, Flag Desecration: A Case Study in the Roles of
Categorization and Balancing in First Amendment Analysis, 88
Harv. L. Rev. 1482 (1975); Geoffrey R. Stone, Restrictions on
Speech Because of its Content: The Strange Case of Sub-
ject-Matter Restrictions, 46 U. Chi. L. Rev. 81 (1978). For the
judiciary to say that a law is valid to the extent that it is
good is to operate as a council of revision and to deny the
power of a written constitution to constrain contemporary
legislation supported by the social class from which judges
are drawn. And when, as in McConnell, the judgment is
supported by a one-vote margin, any Justice’s conclusion
that a particular extension is unwise will reverse the
constitutional outcome. How can legislators or the judges of
other courts determine what is apt to tip the balance?
Footnote 88 to the lead opinion in McConnell, 124 S. Ct.
at 696-97 n.88, hints that one or more members of the
majority may believe that the validity of the federal statute
depends on its entire complement of rules. This footnote—
the only place in which a majority opinion discusses
McIntyre (though not when dealing with §304!)—says that
“BCRA’s fidelity to those imperatives” sets it apart from the
law held invalid in McIntyre. This treats the statute as a unit.
It is difficult to say that the Indiana legislation at issue today
displays “fidelity” to the “imperatives” of curtailing public
corruption while allowing room for expression. As far as I
can see, it has nothing to do with the risk of subtle bribery,
and it attaches no weight to the risks borne by supporters of
unpopular candidates. The majority in McConnell empha-
sized that the disclosure to the agency did not include the
content of the advertisement. 124 S. Ct. at 693-94. In Indiana
the disclosure is affixed to the speech; the association is
unavoidable; does this make a difference? My colleagues
think not; I am not so sure.
No. 02-2204 15
Doubtless “a speaker’s credibility often depends crucially
on who he is.” Slip op. 6. But how does this support oblig-
atory disclosure? Speakers who prefer concealment in order
to reduce their personal risks, and who accept the discount
that readers attach to advocacy from unnamed sources, do
not impose burdens on strangers. What then is the justifica-
tion for regulation? “People are intelligent enough to
evaluate the source of an anonymous writing. They can see
it is anonymous. They know it is anonymous. They can
evaluate its anonymity along with its message, as long as
they are permitted, as they must be, to read that message.”
McIntyre, 514 U.S. at 348 n.11. Arguments that speech may
be regulated to protect the audience from misunderstanding
should fare poorly and outside of electioneering have fared
poorly. See, e.g., Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 769-70 (1975).
Anyway, we must consider the possibility that anonymity
promotes a focus on the strength of the argument rather
than the identity of the speaker; this is a reason why
Madison, Hamilton, and Jay chose to publish The Federalist
anonymously. Instead of having to persuade New Yorkers
that his roots in Virginia should be overlooked, Madison
could present the arguments and let the reader evaluate
them on merit.
Trade associations and other interest groups will have
little difficulty complying with Indiana’s law. Factions that
hope to secure political favors enjoy legal counsel who spe-
cialize in election matters. Professionals in the field not only
will assure compliance but also will exploit the inevitable
loopholes. The identity of these interest groups is no
mystery; many operate from marble-clad buildings and
deploy full-time lobbyists. Statutes such as Indiana’s have
their real bite when flushing small groups, political clubs, or
solitary speakers into the limelight, or reducing them
to silence. Indiana’s statute, which requires disclosure
16 No. 02-2204
from the first dollar of speech, bears especially heavily on
political outsiders. Indiana has essentially forbidden all
spontaneous political speech, perhaps all electioneering by
individuals and small groups. Before favoring or opposing
any candidate, a would-be speaker must navigate a thicket
of rules.
These laws and regulations are written in language that
only specialists can fathom. For example, Indiana requires
a “disclaimer” of identity; yet, as my colleagues observe, the
state uses this word to mean the opposite of its normal
connotation. In everyday language, a disclaimer is a re-
pudiation or denial of responsibility. In Indiana’s election
code, however, that word denotes a statement accepting re-
sponsibility or authorship—a proclaimer (or just a “dis-
closure”) rather than a disclaimer. Getting through this kind
of doubletalk requires help. Even a lawyer might not be
enough: answering the question that we had certified, the
Supreme Court of Indiana held that both the state’s execu-
tive branch and the federal district judge had misunder-
stood the law’s coverage. Majors v. Abell, 792 N.E.2d 22 (Ind.
2003). (George Orwell, who coined the term “Newspeak”
for evasive governmental expression, used a pseudonym to
conceal his own identity. Anonymity did not reduce the
power of his work or justify mandatory disclosure. Orwell
might call Indiana’s use of language doubleplusungood.)
Often the Supreme Court says that even a small fee or tax,
or a short delay in obtaining a free license (as in Watch-
tower), is an unacceptable burden on speech. Cf. United
States v. Playboy Entertainment Group, Inc., 529 U.S. 803(2000). Yet in McConnell the Court was sanguine about the
delays, and non-trivial legal expenses, entailed in comply-
ing with complex rules for campaign speech. These outlays
come on top of the costs that must be borne by persons who
back the wrong horse and incur the enmity of elected
No. 02-2204 17
officials—for the winners now are entitled to learn all of
their vocal opponents’ identities. Maybe these effects can be
justified with respect to electioneering at the national level
by deep-pocket interest groups—though I think that the
Justices have been too ready to equate political support to
bribery, see Ronald A. Cass, Money, Power, and Politics:
Governance Models and Campaign Finance Regulation, 6 Sup.
Ct. Econ. Rev. 1 (1998)—but for local elections the equation
is impossible to sustain.
Indiana does not contend that requiring disclosure by
plaintiffs Carol Antun, Perry Metzger, and Bruce Martin—
who want to use their own resources to speak on behalf of
candidates of the Libertarian Party (and oppose incumbents,
for libertarians do not occupy any major office in Indi-
ana)—is essential to avert a material risk of underground
favor-trading or bribery. Nor does the state try to justify
mandatory disclosure by any truly independent speaker.
Instead Indiana contends that it is entitled to regulate all
electioneering by every speaker in order to avoid drawing
lines. Given McConnell, I cannot be confident that my
colleagues are wrong in thinking that five Justices will go
along. But I also do not understand how that position can be
reconciled with established principles of constitutional law.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-15-04