The U.S. Ninth Circuit Court of Appeals has refused a request for a new hearing to reconsider an earlier ruling upholding a San Francisco city ordinance that required campaign committees to disclose the identities of their donors.
In March, Ninth Circuit Judge Susan Graber, with concurrence from Judges Ronald Gould and Paul Watford, ruled against Todd Davis, who had founded the campaign committee known as No on E, San Franciscans Opposing the Affordable Housing Production Act.
The campaign committee had been created to back Proposition B, a June 2022 ballot measure to change the composition and appointment structure of the City Building Inspection Commission.
No on E planned to publicize its support of the proposition through mailers and newspaper and digital advertisements. As of May 10, 2022, it raised $15,000 from three donors, one of which was Edwin M. Lee Asian Pacific Democratic Club PAC Sponsored by Neighbors for a Better San Francisco Advocacy, according to court papers. Although state law requires certain political ads to include the committee’s chief financial contributors, San Francisco has an ordinance requiring committees to also name top donors to the chief contributors. Davis and the No on E committee argued the city ordinance violates First Amendment protections, both as it is written and as it was applied to the committee’s activity.
On Oct. 26, Judge Graber, joined by Gould, issued an opinion amending the March order to also include a rejection of Davis' rehearing request. Judge Watford resigned from the Ninth Circuit on May 31, returning to private practice. But there were not enough votes from non-recused active judges to proceed with the rehearing of the entire circuit, the court said.
Circuit Judges Daniel Collins and Lawrence VanDyke wrote dissents to the decision to deny rehearing. They were joined by Ninth Circuit Judges Consuelo Callahan, Sandra Ikuta, Mark Bennett, Ryan Nelson, Kenneth Lee, Daniel Bress and Patrick Bumatay.
Van Dyke wrote that the San Francisco ordinance “burdens associational and speech rights,” despite the March finding it satisfies the government’s “important interest in informing voters about the source of funding for political advertisements.” He said the rule compels disclosure of secondary contributors — those who give to a committee that later spends money supporting a cause or candidate — resulting in a final product that is “facially onerous and visually cumbersome” and “drowns the political speaker’s message in disclosure.”
Representing the city and San Francisco County were City Attorney David Chiu and deputies Tara Steeley and Wayne Snodgrass. VanDyke’s dissent noted Chiu’s State Assembly campaign donated more than $5,000 to a committee, Ed Lee Dems, which later donated to a group that supported Proposition B. He said the San Francisco ordinance would compel publication of the donation from Chiu’s campaign, known as David Chiu for Assembly 2022, which could mislead voters into thinking the sitting city attorney is seeking a different office or taking positions on certain issues.
VanDyke said the March opinion and October amendment appear rooted in a concern donors could use clever committee names to hide the source of their donations. But if the secondary donors must be listed, he reasoned, then another layer of clever names would be an obvious workaround, with each level of money further separating an individual donor from the primary supported cause.
“The reason a government cannot justify an interest in the compelled disclosure of five layers of contributors,” VanDykle wrote, “is precisely the same reason Proposition F (the San Francisco ordinance) fails any sort of heightened scrutiny: because a secondary contributor logically does not endorse a political speaker or the speaker’s message by funding a primary contributor.”
Collins agreed with VanDyke’s position the March opinion “threatens vital constitutional protections” and further said the city ordinance “explicitly allows San Francisco to commandeer political advertising to an intrusive degree that greatly exceeds what our settled caselaw would tolerate in the context of commercial advertising.”
Both dissents noted the city recently amended the ordinance to add exemptions for several short or small advertisements, but said that didn’t address the No On E committee's arguments about impositions on physical space due to the mandatory disclaimers, which Collins said are concerns that warranted rehearing en banc.
Alan Gura, of the Institute for Free Speech in Washington, D.C., argued for the No on E committee, which also had representation from Sutton Law Firm, of San Francisco.
Neither Gura nor the Institute for Free Speech responded to requests for comment on the decision.
The American Legal Center filed a supporting brief in favor of rehearing through Washington, D.C., attorneys Tara Malloy and Megan McAllen, of the Campaign Legal Center. The Liberty Justice Center, of Chicago, also filed a support brief through its attorneys Daniel Suhr and Reilly Stephens.