Editorial: A troubling decision on disclosure

Friday, Aug. 13, 2004 | 8:57 a.m.

A federal appeals court has struck down as unconstitutional a Nevada law that requires campaign literature to include the name of the group paying for the material. The U.S. 9th Circuit Court found that Nevada's law violates the First Amendment because its disclosure requirements can hinder speech. The court asserted that individuals or groups may fear speaking out on a controversial issue if they know they're going to be identified.

The court did note that Nevada could change its existing disclosure law, which the court believed was written too broadly, and possibly address the court's constitutional concerns. The law definitely could use some fine-tuning, especially since it exempts some groups that should be required to disclose -- political parties and candidates -- and doesn't require that the law only apply to those groups seeking to directly affect the outcome of an election. The court didn't provide a clear road map to Nevada, however, on how to craft a disclosure requirement that would pass constitutional muster. For that matter, it's unclear if a disclosure law could be drafted that a federal court would find acceptable. A U.S. Supreme Court decision in 1995, which the 9th Circuit Court of Appeals cited extensively in reaching its decision, tossed out as unconstitutional an O hio disclosure law similar to Nevada's.

This is a difficult call for the courts to make, balancing free speech rights versus the ability of states to hold honest elections where voters can make an informed decision. In our view, states should be allowed to require groups to disclose that they paid for ads expressly advocating the election or defeat of a candidate or a ballot question. The content of their speech isn't harmed by disclosure.

It also is worth noting that the courts haven't been consistent on disclosure requirements. The U.S. Supreme Court has ruled that states and the federal government have the power to require candidates and interest groups to file disclosure statements showing how much money they have spent on an election. But if expenditure reporting requirements aren't having the effect of chilling speech, then just exactly how is requiring a group to put their name on a campaign brochure doing that?