Sunshine’s Shadow: Overbroad Open Meetings Laws as Content-Based, Distinct from Campaign Finance Disclosure Laws, and Constitutionally Suspect

Abstract

In this Article, Professor Mulroy discusses “strict” open meetings laws applicable in many states to local legislators — laws which restrict substantive discussion of government business even among two or three legislators (far short of a quorum) outside a properly noticed public meeting, and/or which contain no exceptions for sensitive, privacy-invasive topics which might legitimately warrant private deliberation at early stages. Such laws are surprisingly common and broad, and stand in stark contrast to the lack of such restrictions applicable to most state legislators and all federal legislators. Drawing on a novel Fifth Circuit case criticizing such laws, Prof. Mulroy’s prior Tennessee Law Review Article had argued that such laws are overbroad speech restrictions. This new Article draws on a new Fifth Circuit case upholding such laws, and analyzes two relatively new arguments in the defense of such laws. First, this Article argues that such strict “sunshine” laws cannot be defended by analogizing them to campaign finance disclosure laws upheld in the Supreme Court’s Citizens United case and its progeny, because the government interests justifying such disclosure laws do not apply with equal force to strict sunshine rules. In so doing, it discusses the 2014 Supreme Court decision in McCutcheon v. Federal Election Commission. Second, it argues that such laws are properly analyzed as “content-based” speech restrictions triggering “strict scrutiny” constitutional review. In so doing, the Article discusses the 2014 Supreme Court decision in McCullen v. Oakley. It synthesizes the surprisingly muddled Supreme Court guidance on when to analyze a speech restriction as content-based, criticizes part of the current doctrine on this question, and argues for a straightforward “purely facial” approach which always treats a law as content-based if the law’s application turns on the content of the speech involved. Along the way, it explains many of the counterintuitive, harmful effects of overbroad sunshine laws, including their tendency to chill discussion, hinder compromise, force inappropriate disclosure of sensitive information, breed widespread noncompliance and contempt for the law, and transfer power from legislators to unelected staff and lobbyists.