Independence Institute v. Buescher

Amici brief for certiorari in Independence Institute v. Buescher
Benjamin Barr and Stephen Klein

Filed: October 2, 2009 (U.S. Supreme Court)

Issues:
1. Do the First and Fourteenth Amendments forbid Colorado from imposing registration, administrative, and continuous reporting regulations on policy organizations that comment on state ballot measures but do not have the support or opposition of such measures as their central major purpose?

2. Do Colorado’s disclosure requirements for donors to ballot measure campaigns in which there is no chance of quid pro quo corruption violate the right to engage in anonymous speech and association?

Summary:
This brief—which was joined by the Cato Institute, Center for Competitive Politics, Sam Adams Alliance, Montana Policy Institute and Goldwater Institute—called for the Supreme Court to examine campaign finance disclosure requirements for political communications relating to ballot measures.  Specifically, the Wyoming Liberty Group sought to emphasize the First Amendment’s protection of associational rights (that is, the right to join together with others in groups or organizations) and an important corollary: associational privacy.

The Supreme Court has previously ruled that the state of Alabama could not force the NAACP to disclose its membership list.  More recently, the Court ruled that one does not have to disclose his or her name and address when distributing flyers in a public place. The Court has allowed for specific protection of anonymity for certain political parties that have shown they are subject to repression. This brief argues that these targeted protections need to be formulated into a coherent First Amendment protection for all sorts of citizen groups, specifically in light of the fallout from the Proposition 8 campaign in California.

The First Amendment does not provide a right to have one’s words go unanswered, but it does protect from government facilitating the names and addresses of speakers so that opposing voices can find them while the government intrudes into their privacy.

Outcome:
The Supreme Court denied certiorari. We hope that future cases, such as the pending case ProtectMarriage v. Bowen, have more success in prompting the Supreme Court to reconcile associational privacy with campaign finance disclosure.

Click here to read the brief.