Conservative legal group puts Mayor Soglin on notice for First Amendment violation

A few weeks ago, this blog took Madison Mayor Paul Soglin to task for proposing that anyone wishing to contract with the city of Madison must disclose their political donations. (“Is Paul Soglin that stupid?” – May 9, and “Soglin is evil” – May 16.)

The Wisconsin Institute for Law & Liberty, headed by Marquette University adjunct professor Rick Esenberg, on Monday warned Madison Mayor Paul Soglin and the members of the Madison Common Council that the “ordinance proposed by Mayor Soglin is a blatant violation of our State and Federal constitutions.”

In a letter to the mayor and to council members, Esenberg’s group points out that “it is a bedrock principle of our democracy that government cannot play favorites among citizens, including public contractors, based on their political beliefs.”

The warning also notes that the city has no compelling business reason to require the disclosure, other than prior restraint of protected political speech. I had expressed just such concerns about the Soglin ploy to Rick personally last month. I’m glad his group has taken action.

Here is the letter from WILL in its entirety:

The Wisconsin Institute for Law & Liberty is a not-for-profit public interest firm that seeks to protect and advance our common interests in individual liberty, constitutional government, the rule of law and a robust civil society. As well as litigation on behalf of its clients, WILL is engaged in education on issues of importance to our mission and participates in public discourse on those issues. For more information on WILL, you can visit our website at www.will-law.org.

On May 8, 2013 the Cap Times reported that you had introduced a Common Council resolution that, if passed, would require certain City of Madison contractors to disclose their contributions to advocacy organizations. According to the Cap Times, your purpose in introducing the proposed legislation is to expose and discourage contributions to groups supporting conservative causes. Even if that is not an accurate report of your intentions, you are actually quoted by the Cap Times as stating that that the purpose of the proposed resolution is to curtail contributions to groups that “hate government and try to make it less efficient.”

It is well-established as a matter of law that contributions of this kind are a form of constitutionally protected free speech. See Buckley v. Valeo, 424 U.S. 1 (1976). Your apparent intention to put the City of Madison into the business of suppressing speech with which you and perhaps other members of the Common Council disagree shows a surprising disregard for these constitutional protections. You are entitled to your own views, of course, but any attempt by the City to suppress the rights of free speech and free association, as your proposed resolution is intended to do, would be entirely unlawful. It is a bedrock principle of our democracy that governments may not play favorites among groups based on their political persuasion. (Indeed, your proposal calls to mind the recent misbehavior of the IRS in singling out groups for special treatment based on their political views.)

Of course, and probably for that reason, the text of the proposed resolution that you introduced does not – on its face – play favorites. It requires City contractors to disclose contributions to all advocacy groups of every political or ideological flavor. Even so, we do not believe that the resolution as proposed – in light of the possibility that it may discourage protected speech of any political stripe – can possibly pass constitutional muster. We can discern no substantial relation between what the City would require and any important governmental interest that would be sufficient to justify the disclosures.

The proposed resolution requires certain City of Madison contractors to disclose their contributions to advocacy organizations, defined as any and all organizations qualifying as tax exempt under sections 501(c)(4) or 527 of the Internal Revenue Code. The disclosure requirement would apply not only to the contracting party, but to any persons having an ownership interest of more than 10% of the contracting party. In the case of a contractor that is a corporation, the disclosure requirement thus applies to political contributions by individuals, including minority owners who may have little or no control over the contractor’s activities. Why does the City of Madison need to intrude into the political contributions of individuals who have no contracts with the City?

More to the point, the disclosure requirement pertains to contributions to advocacy organizations that have made expenditures in the last two years for the purpose of “influencing any election or advocating on a political issue or on any matter before a legislative body.” This is not limited to elections in the City of Madison or business before the Common Council. The resolution would thus require disclosures of contributions to advocacy organizations that have not been active in Madison and that may have nothing whatsoever to do with the City or even the State of Wisconsin. Why does the City of Madison need to know whether its contractors have made contributions to the Cato Institute, the California Humane Society, or Planned Parenthood of Alabama?

(Continued)

 

Most importantly, the proposed resolution makes it clear that the disclosures the City intends to require would not be used for any purpose actually relating to contracting by the City. “The disclosures required by this subsection (6) may not be used in or constitute a standard for the award of a City contract.” Absent some plausible governmental purpose, the City of Madison has no legal right to inquire about the political contributions of City contractors. Curiosity is not a valid governmental purpose, nor is the exposure of private contributions to the public for use by you or others in the political arena. To the contrary, mandatory disclosures of this kind can be justified only by a compelling governmental interest in light of the chilling effect they may have on free speech and free association. You yourself apparently recognized that chilling effect, at least according to the Cap Times. “He’s betting that exposing such activities might prompt some companies to curtail them.”

Your belief, as reflected in the drafter’s analysis of the proposal, that mandatory disclosures of political or election related expenditures are invariably permitted under the Supreme Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) is plainly wrong. In that case, the Court restated the well-established principle that, even in the specific context of election law, disclosure requirements are subject to “exacting scrutiny” which requires a “substantial relation” between the disclosure requirement and a “sufficiently in important” government interest. Id at 366-367 citations omitted.

Your proposed resolution does not relate to Madison election law, cannot be used in Madison procurement decisions, and has as your stated purpose to curtailing political contributions to organizations that have views that are different from yours and perhaps those of a majority of the Common Council. Nothing in any of that suggests a valid governmental purpose that would justify the required disclosures and their intended chilling effect on free speech.

We hope that you and the Common Council will consider these points in connection with your deliberations.

RICHARD M. ESENBERG
President & General Counsel

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