Koch-backed lobbying firm asks Third Circuit to halt Delaware donor transparency law

PHILADELPHIA (CN) — A Koch-backed lobbying firm asked the Third Circuit on Monday to pause a Delaware law requiring advocacy groups to disclose the names and addresses of their donors just weeks ahead of state elections.Americans for Prosperity and the related Americans for Prosperity Foundation, a nonprofit lobbying group and political research organization founded by conservative billionaire brothers Charles and David Koch, sued Delaware’s attorney general and state election commissioner in April, arguing the state’s donor disclosure laws violate the First Amendment.The groups challenged the Delaware Elections Disclosure Act, which requires organizations like Americans for Prosperity to disclose the names and addresses of donors who give more than $100.Seeking a preliminary injunction, the groups argued the law lacks a substantial relation to government interests such as informing voters and deterring corruption.U.S. District Judge Jennifer L. Hall, a Joe Biden appointee, rejected the groups’ claim of urgency and denied the injunction in a June bench ruling.The groups promptly appealed.Representing the Americans for Prosperity groups, attorney Allen J. Dickerson spoke only briefly before U.S. Circuit Judge Stephanos Bibas interrupted, noting their opening brief “had next to nothing” beyond the merits and questioning whether a preliminary injunction was appropriate.Bibas, a Donald Trump appointee, questioned whether the equities could favor the groups when they waited nearly five years after Americans for Prosperity Foundation v. Bonta, a 2021 Supreme Court ruling restricting donor disclosure laws, before challenging Delaware’s regulations, just months before the state’s election period.“It suggests that’s a factor against you because you’ve waited a while, and suddenly rushed in and begged that we have to decide this case before this fall election — and we’ve also said that the state has an interest in enforcing its laws,” Bibas told Dickerson. “What makes the balance tip the other way?”“The lack of First Amendment rights for any period of time is irreparable harm,” Dickerson replied, before being again interrupted — this time by U.S. Circuit Judge Marjorie M. Rendell, a George W. Bush appointee.“You have to show some harm here,” Rendell told Dickerson. “You’ve made no record whatsoever. I don’t think the presumption carries over in this type of case.”Dickerson countered, arguing a professed desire to speak itself is sufficient for the groups to show a First Amendment injury.Still, the panel appeared reluctant to favor Dickerson’s argument, as U.S. Circuit Judge Thomas M. Hardiman also jumped in to question the attorney’s reasoning.“Don’t the collections of circumstances negative the idea that there’s something urgent about the harm here?” the Bill Clinton appointee asked. “You’re suddenly coming in five years after Bonda and saying, ‘No, we are being irreparably injured; the court needs to stop this on a [preliminary injunction] as opposed to waiting until final judgment.’”Dickerson said the groups sued shortly after deciding to run advocacy communications in Delaware. But when pressed by Hardiman, he could not say when they made that decision and conceded the information was not in the court record.Hardiman noted that the groups say they would not run ads in Delaware if required to disclose donors, suggesting that such a decision could favor the state.“That just maintains the status quo for the last five years,” Hardiman told Dickerson.“It would be extraordinary, Your Honor, for this court to hold that remaining silent in anticipation of a future trial is not irreparable injury and is not appropriate,” Dickerson retorted.“Maybe it’s irreparable injury, but still, it’s the status quo,” Bibas chimed in. “And there’s plenty of case law that says…the job is normally to preserve the status quo ante. So just because you check the box of likely success and irreparable injury doesn’t automatically get you a [preliminary injury].”Representing the Delaware defendants, state attorney Emily V. Burton suggested the donor disclosure act does not realistically limit the groups’ speech freedoms.“If they want to speak with the benefit of all their donors’ money, the law simply requires them to disclose all of their donors.”“There’s nothing narrowly tailored about that,” Hardiman said, questioning whether Delaware had demanded overly broad disclosures.Shifting focus from the merits, Hardiman sought Burton’s counter against issuing a preliminary injunction enjoining enforcement of the donor disclosure law.“Assume for a minute that you lose on likelihood of success on the merits, and assume for a minute that we think because it’s a First Amendment case, that irreparable harm flows naturally from that,” Hardiman said. “Tell us your best arguments, if you would, as to why we should not require the district court to enter an injunction.”In response, Burton reiterated that Americans for Prosperity has not pursued Delaware communications for five years, adding that“The harm to them is that they want to do something that they have never done before, and they want to do it during a particular two-month window, and they have yet to really clearly identify what it is they want to say or how it ties to their mission,” Burton replied.“Conversely, Delaware has an interest in knowing who is behind political spending in Delaware,” Burton added. “Citizens would reasonably want to know if people funding these advertisements are corporate litigators out of California, or Delawarians.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads