Delaware Strong Families v. Biden
34 F. Supp. 3d 381
D. Del.2014Background
- Delaware enacted the Delaware Election Disclosures Act (15 Del. C. § 8001 et seq.), effective Jan 1, 2013, imposing contributor disclosure and reporting requirements for "third-party advertisements" and "electioneering communications" within defined pre-election windows.
- Plaintiff Delaware Strong Families (DSF), a nonprofit that distributed a voter guide online in 2012 and plans similar activity before the 2014 general election (expecting >$500 in costs), sued to enjoin enforcement of the Act as applied to its activities.
- The Act requires persons spending over $500 on third-party ads during an election period to file reports identifying contributors who gave more than $100; "person" is broadly defined to include nonprofits and virtually any organization.
- The Act contains no categorical exemptions (e.g., for 501(c)(3) groups or nonpartisan voter guides); the Commissioner of Elections has broad authority to adopt exemptions or modifications administratively.
- DSF argued the statute is overbroad and vague and burdens First Amendment associational and speech rights; defendants relied on governmental interests in disclosure, transparency, and preventing corruption.
- The district court found DSF likely to succeed on the merits, concluding that the Act’s breadth (capturing neutral communications and communicators) makes the required disclosures insufficiently related to the Act’s stated objectives, and granted a preliminary injunction (brief stay pending status conference).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act’s disclosure/reporting requirements, as applied to DSF’s voter guide and similar communications, violate the First Amendment | The Act is overbroad and vague; it reaches neutral/nonpartisan communications and would require disclosure of private contributors unrelated to corruption concerns, chilling association and speech | The State has a substantial interest in informing the electorate, deterring corruption/appearance of corruption, and enforcing campaign laws; Citizens United and McConnell support broad disclosure of electioneering communications | The court held DSF likely to succeed: the Act is too broadly worded and the connection between the collected contributor information and the Act’s objectives is too tenuous as applied to DSF |
| Whether the Act’s breadth is saved by administrative delegation (Commissioner’s exemption power) | Delegation to the Commissioner does not cure a facially broad statute and leaves too much discretion to narrow scope post hoc | Delegated exemption authority can narrow applications and address overbreadth concerns | The court treated the lack of statutory exemptions and reliance on administrative narrowing as insufficient to cure constitutional overbreadth in this context |
| Proper standard of scrutiny for compelled disclosure of contributors | Compelled disclosure implicates associational privacy and requires exacting/strict scrutiny; government must show a substantial relation to an important/compelling interest | Government relies on precedents permitting disclosure as a generally less-restrictive means to inform voters and deter corruption | Court applied First Amendment protection to associational privacy and found government’s asserted relation insufficient here; favored protection of speech |
| Whether balancing of harms and public interest favors injunctive relief | Disclosure would cause irreparable First Amendment harm and chill speech; public interest favors protecting constitutional rights | State interests in transparency and preventing corruption weigh against injunction | Court found irreparable harm from First Amendment loss and that balance of harms/public interest favor DSF; granted preliminary injunction |
Key Cases Cited
- Buckley v. Valeo, 424 U.S. 1 (1976) (compelled disclosure can infringe associational privacy; disclosure must satisfy exacting scrutiny and be closely related to governmental interests)
- Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (struck down broadly worded reporting requirement as overbroad where it captured nonpartisan issue discussion)
- McConnell v. FEC, 540 U.S. 93 (2003) (upheld BCRA disclosure and defined "electioneering communications" broadly; Buckley’s express-advocacy construction was statutory interpretation, not absolute constitutional command)
- FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (as-applied test: an ad is the "functional equivalent" of express advocacy only if it is susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate)
- Citizens United v. FEC, 558 U.S. 310 (2010) (overruled Austin; affirmed that disclosure requirements can survive exacting scrutiny but emphasized protecting political speech and that disclosure is a less-restrictive alternative)
- Center for Individual Freedom, Inc. v. Tennant, 706 F.3d 270 (4th Cir. 2013) (upheld disclosure tied to "electioneering communications" for certain media but struck down selective media coverage where legislature failed to justify limiting regulated media)