|Senate Counsel & Research||State of Minnesota|
|S.F. No. 458 - Disclaimers in Campaign Material|
|Author:||Senator Jim Carlson|
|Prepared by:||Peter S. Wattson, Senate Counsel (651/296-3812)|
|Date:||February 8, 2007|
Riley v. Jankowski is not the first case to have struck down Minnesota's disclaimer law, and this is not the first bill seeking to repair it.
The disclaimer law dates from the Progressive Era. It was enacted in a 1912 special session as Act of June 20, 1912, Ex. Sess. ch. 3, § 7, 1912 Minn. Laws 23, 26. By the end of World War I, 24 states had similar laws, and by 1995, every state but California had one. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 375-76 (1995) (Scalia, J., dissenting).
In McIntyre, the U.S. Supreme Court struck down Ohio's similar disclaimer law as it applied to a woman who distributed a handbill opposing a school tax levy that was the subject of an eminent referendum. Justice Stevens, writing for the seven-person majority, held that the Ohio law requiring campaign material to bear its author's name was an unconstitutional abridgment of Mrs. McIntyre's freedom of speech.
Justice Stevens recognized that "a state's enforcement interest might justify a more limited identification requirement," 514 U.S. 353, but held that the Ohio law went too far. For example, he said:
[T]he prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to valid issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author's interest in anonymity.
514 U.S. 351-52.
On February 1, 1996, Senator Marty introduced S.F. No. 2527, a two-section bill designed to address only the problems raised by the McIntyre decision. It passed the Senate unanimously on February 29. The House of Representatives' Committee on General Legislation, Veterans Affairs, and Elections, however, had taken similar language and added it to Senator Sams' bill, S.F. No. 315, which had passed the Senate the year before as an uncontroversial housekeeping bill for the Secretary of State. The House amendments also added a variety of other provisions, including one to authorize the use of mail ballots in any precinct with fewer than 400 registered voters. A conference report on S.F. No. 315, including the amendments to the disclaimer law, was passed on April 1, sent to the Governor as Laws 1996, chapter 441, and vetoed on April 12, 1996, because of the mail ballot provision.
On February 20, 1997, Senator Marty introduced S.F. No. 708, a comprehensive bill on campaign finance and fair campaign practices that included the disclaimer law language from the conference report on S.F. No. 315. It was heard and amended by the Elections Committee on February 26, March 3, and March 10, but the motion to pass as amended was defeated. It was schedule for another hearing on March 26, 1997, but was not heard. It remained in the Committee on Election Laws.
On August 27, 1997, in response to a request from the LeSueur County Attorney, the Attorney General issued an opinion that Minn. Stat. § 211B.04 was unconstitutional. Op. Atty Gen. 82t.
On October 7, 1997, Minn. Stat. § 211B.04(a), was declared unconstitutional in the case of State v. Wiger, Nos. T8-97-1017, T1-97-1019, TX-97-1018 (5th Jud. Dist., Brown County, Oct. 7, 1997). Three citizens promoting the candidacy of a write-in candidate for school board had distributed literature without the required disclaimer and were charged under § 211B.04. Judge Norbert P. Smith dismissed the charges on the ground that § 211B.04(a), was unconstitutional. He based his decision on McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
The Legislature attempted to correct the disclaimer law's flaws by enacting Laws 1998, ch. 376, § 2, 1998 Minn. Laws 832, which exempted a fact situation like the McIntyre case from the disclaimer requirement. That was not good enough for the federal district court, which held the revised language unconstitutional in 2003. Minnesota Citizens Concerned for Life v. Kelley, 291 F. Supp.2d 1052, 1067-69 (D. Minn. 2003), aff'd in part, rev'd in part, 427 F.3d 1106 (8th Cir. 2005). Judge Kyle wrote that, during the debate on the law, "Representative Milbert indicated an unwillingness to broaden the statute unless the legislature was 'under a direct threat by a court to do it.' That day has come." 291 F. Supp.2d at 1069.
The Legislature's next attempt to correct the law was enacted as Laws 2004, ch. 293, art. 3, 2004 Minn. Laws 1536. It broadened the exemption to include campaign material distributed at least seven days before the election by an individual or association spending only their own money and less than $500. The Minnesota Court of Appeals found this exemption insufficient in Riley v. Jankowski, 713 N.W.2d 379, 401-05 (Minn. App. Apr. 26, 2006). Judge Peterson observed that, "[w]hile a more limited disclaimer requirement might indeed pass constitutional scrutiny, Minnesota's disclaimer requirement directly attacks core political speech '[un]supported by an interest in avoiding the appearance of corruption.'" 713 N.W.2d at 404 (internal citation omitted). He said that:
[T]here may be circumstances in which the disclaimer requirement is violated by completely truthful anonymous statements made by individuals acting independently from any candidate and using their own resources. Respondents have not identified an overriding state interest that permits section 211B.04 to limit such political expression under the exacting scrutiny that we must apply.
Section 1 adds to the disclaimer law a statement of four purposes that it is designed to serve. It also exempts campaign material that is not disseminated with knowledge that it is false or reckless disregard of whether it is true or false, regardless of when it is distributed or how much it costs.
Section 2 makes the act effective the day following final enactment.
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