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Federal Court Hears Arguments in Ballot Campaign Disclosure Case

July 26, 2011 - 6:00pm

A federal Tallahassee judge will decide whether small groups of citizens can group together to campaign for or against a ballot measure in Florida after hearing arguments in the case Wednesday.

During the 2010 election campaign cycle, a group of four Sarasota residents wanted to spend their own money and lobby their friends and acquaintances for money to campaign against the proposed Amendment 4 ballot measure, which would have forced local governments to place land-use changes on the ballot.

The amendment failed, but the group believed it was unnecessary to form a political action committee and submit campaign disclosure forms. Under current state law, any group of two or more people that wants to spend $500 or more on a political campaign must file campaign finance reports.

Paul Sherman, an attorney for the Institute for Justice, a libertarian firm representing the Sarasota group, cited McIntyre v. Ohio Elections Commission, a 1995 case in which a state law prohibiting anonymous campaigning was overturned when a woman issuing leaflets was fined. A November 2010 U.S. Supreme Court ruling affirmed the finding in the case.

He argued the regulation of small groups trying to influence ballot measures was a burdensome infringement of the First Amendment.

If they want to speak out on an issue they face a choice -- either speak out as a heavily regulated (political action committee) or not at all. That choice is unconstitutional, Sherman said.

U.S. District Judge Robert Hinkle challenged Sherman, asking if a January 2010 U.S. Supreme Court ruling, Citizens United v. Federal Elections Commission, which allowed corporations to more directly fund political campaigns but upheld disclosure requirements, was more germane to the case.

Citizens United upheld this requirement, it didnt even cite McIntyre, Hinkle said.

Florida Department of State assistant general counsel Ashley Davis, defending the states disclosure requirements, argued filing disclosure and campaign finance forms is in the publics interest to know who is attempting to influence elections, and that setting up a PAC and filing quarterly reports is not too much to ask.

Your honor, the organizational and administrative requirements are minimal, Davis said, adding that the Sarasota group in question is not limited in the amount of money it can raise or spend.

For Sherman, the Citizens United ruling renders much of Floridas campaign finance laws unconstitutional, but he said he was only looking to ease restrictions on disclosure requirements related to ballot measures, not political campaigns involving candidates.

Judge Hinkle expressed concern that a favorable ruling for the Sarasota group would force him to draw the line between a large, well-funded group whose campaign finances should be disclosed, and a small, cheaply funded campaign that doesnt require disclosures. Sherman countered that he could render a favorable ruling without creating a new law regarding campaign disclosures.

The judge doesnt have to draw the line; he can say that whatever the line is, these people are under it, Sherman told reporters outside the courtroom.

Hinkle appeared to question Sherman more vigorously than Davis. Despite the harsh questioning, however, Sherman was upbeat about his chances of a favorable ruling, but added he will appeal if things dont go his clients way.

If the judge rules against us, we are absolutely prepared to take this to the 11th Circuit (Court of Appeals) and potentially to the Supreme Court if necessary, he said.

Reach Gray Rohrer at or at (850) 727-0859.

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