Third Circuit Court Upholds Delaware Dark Money Disclosure Law


Yesterday in Delaware Strong Families v. Attorney General of Delaware, the U.S. Court of Appeals for the Third Circuit upheld the Delaware Elections Disclosure Act (“DEDA”), which was proposed and signed by Governor Jack Markell in 2012.  The Third Circuit reversed a lower court decision that preliminarily enjoined Delaware’s disclosure law as applied to a voter guide put out by a nonprofit group, Delaware Strong Families (DSF), in a constitutional challenge to DEDA’s electioneering communications law.                                         

“This Third Circuit ruling is an important victory for Delaware voters, who deserve to know the identities of those spending money to influence their votes,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “The Delaware Elections Disclosure Act promotes transparency in elections, which the Supreme Court has long recognized as a vital governmental interest, and yesterday’s ruling ensures that Delaware voters will continue to have access to the information they need to make informed decisions on Election Day.”

The Court of Appeals also rejected the argument that disclosure can only reach ‘express advocacy’ or its functional equivalent, recognizing that “[t]he Supreme Court has consistently held that disclosure requirements are not limited to ‘express advocacy’ and that there is not a ‘rigid barrier between express advocacy and so-called issue advocacy.’” 

Lawyers from the law firm WilmerHale and the Campaign Legal Center represent the Defendants-Appellants, Delaware Attorney General and Delaware Commissioner of Elections.

The case was argued before the Third Circuit on October 28, 2014.                                                          

To read the Third Circuit’s opinion, click here.

To read the Defendants-Appellants’ opening brief and reply brief, click here and here.