stating “as a general matter, mandating disclosure of the financiers of a ballot initiative may prevent the wolf from masquerading in sheep’s clothing” and finding “we have little trouble concluding that Montana’s informational interest is generally ‘important’ in the context of Montana’s statewide ballot issues.”
How later courts described this case
- stating “as a general matter, mandating disclosure of the financiers of a ballot initiative may prevent the wolf from masquerading in sheep’s clothing” and finding “we have little trouble concluding that Montana’s informational interest is generally ‘important’ in the context of Montana’s statewide ballot issues.”
- holding Montana’s “ ‘zero dollar’ threshold for disclosure” unconstitutional under the wholly without rationality standard as applied to an incorporated church’s “de min-imis in-kind expenditures,” which consisted merely of allowing a church member to photocopy a few dozen petitions on the Church’s copy machine using her own paper, placing petitions in the Church’s foyer, and a pastor’s “exhortation to sign the ... petition during a regularly scheduled sermon”
- finding Montana’s “zero dollar” reporting threshold “wholly without rationality” because “[a]s a matter of common sense, the value of this financial information to the voters declines drastically as the value of the expenditure or contribution sinks to a negligible level. As the monetary value of an expenditure in support of a ballot issue approaches zero, financial sponsorship fades into support and then into mere sympathy”
- finding disclosure requirements unconstitutional where no dollar threshold but explicitly withholding judgment as to whether the requirements, which the court described as "not exceedingly onerous,” might pass constitutional muster with protection for small donors
Written by the judges who cited it.
The opinion
NOONAN, Circuit Judge,
concurring:
I gladly join the opinion of the court and write here to address an issue briefed by both parties and not of inconsequential importance: the constitutionality of MCA § 13-1-101 et seq. and the regulations thereunder in the light of the Free Exercise Clause of the First Amendment.
Current constitutional doctrine permits “a neutral, generally applicable law” to operate even though its incidental effect is an impact on the exercise of religion. Employment Division v. Smith, 494 U.S. 872, 890 , 110 S.Ct. 1595 , 108 L.Ed.2d 876 (1990). In contrast, a statute that is not both of general applicability and neutral toward a religious practice is constitutional only if justified by a compelling government interest which the law is narrowly tailored to serve. Church of Lukumi Babalu Aye., Inc. v. City of Hialeah, 508 U.S. 520, 531 , 113 S.Ct. 2217 , 124 L.Ed.2d 472 (1993). Is the Montana statute neutral and generally applicable? Is it narrowly tailored to serve a compelling government interest?
The first question is answered by inspection of the statute. A large class of activities is exempted from its operation. A reportable contribution does not include “the cost of any bona fide news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication of general circulation.” MCA § 13 — 1—101(7)(b)(2). The media are free to promote political opinions without registering as independent political committees and without disclosing the identity of those owning the facilities used to promote the opinions. The most likely sources of potent political input into an election are removed from the statute’s scope. The generality of the statute is destroyed. The neutrality of the statute is preserved as to the media while all religious expressions on a ballot measure are swept within its requirements. The disparity between the treatment of the media and the treatment of churches is great and gross.
It might be countered, “Of course the press doesn’t fall within the statute. Its freedom is protected by the First Amendment.” But if it is obvious that the freedom of the press would be infringed by the statute’s requirements, is it not equally obvious that the free exercise of religion is burdened by them? To carve out an exemption for one kind of speech — -that employed by the professional media — and deny the exemption to speech by a church is to achieve neither neutrality nor general applicability.
The burden imposed by the statute on a church speaking its mind is not trivial, especially in the case of a church, such as the Canyon Ferry Road Baptist Church of East Helena, Inc., a Southern Baptist entity possessed of its own identity and governance. The church consists of 400 members; it has a pastor and a youth pastor and a part-time secretary. To comply with the statute, the pastor would first have to understand what the statute requires in the framework of Montana election law. This understanding is not materially assisted by the regulations issued by the Commissioner of Political Practices, whose statutory duty is “the control of political practices.” As with many specialized statutes and the regulations issued under them the advice of a good lawyer would be essential not to fall afoul of the statute’s criminal penalties. Reading and *1036 understanding the statute with the help of counsel is the first burden imposed.
The second burden on the church is to convert itself for the time being into an independent political committee, registered with the state, equipped with a campaign treasurer, a depository, and a new name. Now minted as an IPC, this entity must file a form with the Commissioner of Political Practices and with the county within five days of making a political expenditure. The IPC must also file a form with the Commissioner reporting contributions. It is easy to suppose these reporting and filing requirements are slight. They may be so for a large enterprise. They are care-demanding and time-consuming for a small congregational church. In addition, the statute seeks the names and the employers of the contributors of small amounts of money. For business or social reasons, a small contributor may wish not to be publicly identified with one side of a controversial public issue. The required report strips this contributor of his chosen anonymity. This effect, which discourages contributors, is an additional burden on the church.
As for narrow tailoring to a compelling government interest, the Commissioner of Political Practices contrasts the bad old days of domination by the Anaconda Company with the present healthy state of Montana politics, said to be due to the disclosure law. The Commissioner does not even attempt to show how the disclosure law has this beneficent effect.
The disclosure law leads to the disclosure of the names of the makers of small contributions, said by the Commissioner to be a major factor in Montana elections. How do the names of small contributors affect anyone else’s vote? Does any voter exclaim, “Hank Jones gave $76 to this cause. I must be against it!” Small contributors are not the Anaconda Company.
The Commissioner also argues that the report of in-kind contributions by the church is helpful to the voters. But if the church’s corporate efforts are effective at all, both the supporters and opponents of a ballot measure will know where the church stands and judge accordingly. They don’t need to consult what is filed with the Commissioner.
What has happened here is that a small congregation has been put to trouble and expense in order to exercise its right to speak on an issue seen by it to be of vital religious significance. One lesson of history is that small incursions on freedom are to be resisted lest they grow greater.
I noted earlier the exemptions of the press from the disclosure statute. An unregulated, unregistered press is important to our democracy. So are unregulated unregistered churches. Churches have played an important — no, an essential' — • part in the democratic life of the United States. On two of the greatest issues ever to confront our country, churches led the way and churchmen conducted crusades.
The first decided whether this nation should be half free and half slave. Not only the slaveowners but many persons of equable temperament and moderate judgment hesitated to dislodge an institution that had existed in America for over 200 years, protected by the constitution and the courts. Church-men — principally Congregationalists and Unitarians — took up the cause of universal freedom and over bitter opposition and armed rebellion assured the triumph of what they put forward as a Christian cause.
A century later, when the fruits of freedom had been imperfectly realized and African-Americans still suffered grievously from discriminatory laws and practices, Christian churchmen again led the way in what has been aptly described by one of its leaders, the Reverend Joseph Lowery, as *1037 “the black church coming alive.” Its opening moments occurred in 1955 in Montgomery, Alabama when Rosa Parks refused to move to the back of the bus and was arrested for violating a municipal ordinance segregating bus seating by race. Martin Luther King, Jr., a local pastor, emerged as the leader of a boycott of the buses by blacks. At each critical stage King spoke in the language of religion. At the first mass meeting he quoted the words of Jesus as reported in the Gospels, told the crowd that their protest should be “with Christian love,” and gave as advice, “Let your conscience be your guide.” The crowd sang “Onward Christian Soldiers.” When his house was bombed, King cooled the crowd saying, “What we are doing is just. God is with us.” For King, conscience was a trumpet. The Lustre of Our Country (1998) 256.
Is it necessary to evoke these historic struggles and the great constitutional benefits won for the country by its churches in order to decide this case of petty bureaucratic harassment? It is necessary. The memory of the memorable battles grows cold. The liberals who applaud their outcomes and live in their light forget the motivation that drove the champions of freedom. They approve religious intervention in the political process selectively: it’s great when it’s on their side. In a secular age, Freedom of Speech is more talismanic than Freedom of Religion. But the latter is the first freedom in our Bill of Rights. It is in terms of this first freedom that this case should be decided.