A court determined that as applied to a small issue committee that made only a very modest amount of expenditures, the state constitution is unconstitutional, and that the state constitutional provision has a chilling effect on speech by purporting to ban constitutionally protected speech.

It was an “as applied” challenge rather than a facial challenge to the statute as a whole, that prevailed, so the entire issue committee statute is not unconstitutional, but the court ruling, without setting a specific dollar figure, said that all low dollar issue committees are exempt under the First Amendment from the disclosure requirement.

In the absence of a regulation on point, we operated on the pigs get fat, hogs get slaughtered rule and even quite substantial issue campaigns can claim to believe that they were within the scope of the court ruling.  If there is a regulation crafted in an express attempt to defer to the court ruling, this has some presumptive validity and make the “I thought it was unconstitutional” defense harder in a medium dollar case than it would have been otherwise making the law stronger.

Also, does Common Cause genuinely believe that issue committees with less than $5,000 of expenditures are really something that creates a way for big money to manipulate the system?  It is hardly a dangerous exception.  

Neither the legislature nor the Secretary of State would have the power to do anything if the partial unconstitutionality under the First Amendment of the state constitutional provision in question weren’t established, but once it is, surely someone has the authority to clarify what it means.  I suppose that the alternatives would be a declaratory judgment action or an attorney general’s opinion, but somebody ought to be able to tell us what the line is now, even if the people never decide to vote on it again.