In Delaware Strong Families v. Biden, plaintiff Delaware Strong Families, a tax-exempt 501(c)(3) corporation, filed a lawsuit seeking to invalidate portions of the Delaware Elections Disclosure Act as applied to itself. Delaware passed the Act in 2012 to close legal loopholes that enabled third parties to spend extensively on state elections without identifying their contributors. Under Delaware’s old rules, only those engaging in “express advocacy”—i.e., explicit advocacy for the election or defeat of a candidate – were required to disclose their contributors. The Act expanded disclosure to include those making “electioneering communications,” which are communications that refer to a “clearly identified candidate,” target that candidate’s electorate, and are distributed within thirty days before a primary or sixty days before a general election. This definition was modeled after a similar provision in the federal Bipartisan Campaign Reform Act. A wealth of data show that electioneering communications are just as effective as communications containing express advocacy in swaying elections.
DSF challenged the Act’s constitutionality as applied to voter guides it wishes to produce in collaboration with the Delaware Family Policy Council (DFPC), a 501(c)(4) organization. The last such guide was explicitly intended for “Values Voters,” and set forth state candidates’ positions on various social issues, including same-sex marriage, civil unions, abortion, stem-cell research, and sex education. DSF sought a declaration that future guides could not constitutionally be deemed “electioneering communications” under the Act.
On March 31, 2014, the U.S. District Court for the District of Delaware granted Delaware Strong Family’s request for a preliminary injunction blocking implementation of the Act. The court suggested that the Act’s electioneering communication provisions could not constitutionally be applied to “non-political” organizations and communications, like 501(c)(3) entities and voter guides, and argued that a contrary holding would impermissibly subject nonpartisan organizations like the League of Women Voters and Common Cause to disclosure.
The Brennan Center and Weil, Gotshal & Manges LLP, on behalf of the Delaware League and Common Cause, filed an amicus brief in support of the state’s appeal in the Third Circuit. The brief emphasized that the League and Common Cause continue to support the Act, notwithstanding the possibility that it might apply to them. The brief went on to explain that the Act was a reasonable effort to adapt to a changing campaign finance landscape, which has made disclosure more important, and that special exemptions for 501(c)(3) entities and voter guides are not constitutionally required.
Related Court Documents
Third Circuit Merits Briefs
Third Circuit Amicus Briefs
In Support of the State
In Support of Delaware Strong Families
- Amicus Brief of the James Madison Center for Free Speech
- Amicus Brief of the United States Constitutional Rights Legal Defense Fund and the National Right to Work Committee
- Reply Brief for the State