The Supreme Court Hears a Case Next Week That Could Make Citizens United
Even Worse
By Ian Millhiser, Vox
17 April 21
The Court's new majority could make it much easier for big spenders to
influence American politics in secret.
The Supreme Court will hear a major case on April 26 that could
fundamentally alter the Court's approach to laws requiring political
organizations to disclose their donors - a change that could make it much
easier for big spenders to hide the ways they seek to influence policy and
elections.
That case is Americans for Prosperity Foundation v. Rodriquez. But to fully
understand it, it's important to keep in mind the Supreme Court's decision
in Citizens United v. FEC (2010).
Citizens United is best known for its anti-canonical holding that
corporations may spend unlimited money to influence elections. While five of
the justices who heard Citizens United voted to dismantle much of the
nation's campaign finance laws, eight justices also voted that the
government has fairly broad authority to require advocacy groups to disclose
major funders of their political activity.
Disclosure requirements should be upheld, Justice Anthony Kennedy wrote for
the Court, so long as there is "a 'substantial relation' between the
disclosure requirement and a 'sufficiently important' governmental
interest."
A lot has changed since Citizens United tucked this pro-disclosure ruling
into its broader ruling against campaign finance limits, however. Four of
the eight justices who supported disclosure rules have since left the Court,
and three of them were replaced by judges who are significantly more
conservative than the person they replaced.
Which brings us to Americans for Prosperity Foundation. The plaintiffs in
the case - which include a conservative advocacy group closely associated
with the billionaire Koch brothers, and the Thomas More Law Center, a
conservative law firm that claims it was formed to promote "America's
Judeo-Christian heritage" - seek to undercut pro-disclosure decisions such
as Citizens United. And, with six Republican appointees on the Supreme
Court, they have a very good chance of prevailing.
The specific issue in Americans for Prosperity is fairly far afield of the
foundational questions about money in politics that animated Citizens
United. The plaintiffs challenge a California regulation that requires
charities that wish to raise tax-deductible funds in California to disclose
their largest contributors to the state attorney general's office. State
regulations require the attorney general to keep this information
confidential from the public, but the attorney general's office may use it
to investigate allegations of fraud by nonprofits.
The Americans for Prosperity plaintiffs claim that this disclosure
regulation is unconstitutional, and they rely largely on doctrines created
to prevent civil rights organizations from having to disclose their donors
to Jim Crow government officials in the 1950s and '60s.
There are difficult questions underlying Americans for Prosperity. If you
are inclined to be unsympathetic to a Koch-aligned group that wants to keep
its donors secret, imagine a very similar case where Texas required Planned
Parenthood to disclose its donors to the state attorney general's office.
Would you have confidence that no one in that office would leak the names of
those donors to Tucker Carlson?
But the Court has also spent the past 60 years striking a careful balance
between the public's interest in requiring charities and advocacy groups to
disclose where they get their money, and the groups' interest in making sure
that their donors are not harassed, intimidated, or attacked by people who
loathe a particular group and what it stands for.
Americans for Prosperity gives the Court's very conservative majority an
opportunity to rework this balance. And those justices could allow political
groups to operate with far more secrecy, allowing wealthy donors to shape
American politics in the shadows.
Why the First Amendment imposes some limits on mandatory disclosure laws
In the mid-1950s, an Alabama court ordered the NAACP, which was then the
preeminent organization fighting segregation in the Jim Crow South, to turn
over a full list of its members to the state attorney general - and then
imposed a $100,000 fine on the NAACP if it did not comply.
Had the NAACP complied, it could have placed those members in grave danger.
State officials could have turned over the list of members to the Ku Klux
Klan. Or they may have disclosed them to racist employers who could have
fired the NAACP's members and blacklisted them from obtaining future
employment.
The Alabama court's order, in other words, was a fairly transparent effort
to shut down the NAACP's operations in Alabama, either by terrorizing the
organization's members or by imposing crippling fines on the NAACP. The
$100,000 fine imposed by the state court was roughly the equivalent of a $1
million fine in today's dollars.
Ultimately, however, this scheme did not succeed. In NAACP v. Alabama ex
rel. Patterson (1958), a unanimous Supreme Court ruled that Alabama could
not force the NAACP to disclose its members, given the obvious danger to
those members if their names were disclosed.
"We think that the production order, in the respects here drawn in question,
must be regarded as entailing the likelihood of a substantial restraint upon
the exercise by petitioner's members of their right to freedom of
association," Justice John Marshall Harlan wrote for his Court. He added
that the NAACP had made "an uncontroverted showing" that "revelation of the
identity of its rank-and-file members has exposed these members to economic
reprisal, loss of employment, threat of physical coercion, and other
manifestations of public hostility."
NAACP was an extreme case, and the plaintiffs in Americans for Prosperity do
not allege anything that even vaguely resembles the kind of abuse and
intimidation that NAACP members faced in the Jim Crow South. As a lower
court that upheld California's disclosure law explained, an executive with
the Americans for Prosperity Foundation "described two individuals who, she
believed, stopped supporting the Foundation in light of actual or feared
retaliation by the IRS," and another donor who "did business with the
Government" said that he and his associates "did not feel like they could
take on the risk of continuing to give to us."
Similarly, the Thomas More Law Center "introduced a letter from a
contributor who chose to make a $25 contribution anonymously out of fear
that ISIS would break into the Law Center's office, obtain a list of
contributors and target them."
Unlike the NAACP in the 1950s, in other words, the Americans for Prosperity
plaintiffs largely raise speculative fears that, by disclosing their major
donors to one government agency, that information may somehow - in violation
of California state regulations - wind up in the hands of another agency,
which might target those donors. (Or, in the case of the law center, that
the donor information might wind up being discovered by a terrorist
organization located on the other side of the globe, which will then target
American donors to the law center.)
That said, the plaintiffs do have some basis to fear that some of their
donor information might accidentally be disclosed to the public. An expert
witness hired by Americans for Prosperity was able to hack the state's
website and uncover confidential donor information - although this security
hole has since been plugged - and clerical workers in the California
attorney general's office once accidentally made a small fraction of the
office's confidential records public.
The plaintiffs fear that, had their donor information become widely
available to the public through a similar error, then those donors might be
harassed or their businesses might be boycotted.
The core question in Americans for Prosperity is whether this fear that an
inadvertent disclosure might happen and that such a disclosure might lead to
consequences for donors is sufficient reason to invoke constitutional
protections intended to shield organizations like the NAACP in the Jim Crow
era.
How the Court currently approaches mandatory disclosure laws
Under current precedents, the Supreme Court uses two sorting mechanisms to
help it identify which disclosure laws should be struck down.
The first is a balancing test described in Citizens United. Under that test,
a disclosure law should be upheld if there is "a 'substantial relation'
between the disclosure requirement and a 'sufficiently important'
governmental interest." Thus, Alabama's attempt to obtain the NAACP's
members list was invalid, because the only "interest" that Alabama sought to
advance when it sought this list was undermining the NAACP.
By contrast, a federal appeals court upheld California's disclosure rule
because, by obtaining information about major donors to nonprofit
organizations, the state advanced its important interest in determining
"whether a charity is actually engaged in a charitable purpose, or is
instead violating California law by engaging in self-dealing, improper
loans, or other unfair business practices."
As California explains in its brief to the Supreme Court, the state's
disclosure rule "helps state regulators detect whether a charity is misusing
charitable assets, such as by diverting funds for a donor's personal
enrichment." A businessman might, for example, make a tax-deductible
"donation" to a nonprofit organization, which immediately turns around and
hires that businessman's company as a "consultant" - thus allowing the
businessman to take a fraudulent tax deduction without actually contributing
anything to charity.
The second mechanism that the Court uses to sort through challenges to
disclosure laws is that it ordinarily requires such challenges to be brought
on an "as applied" basis, a mechanism that allows courts to pay special
attention to the specific facts of an individual case.
Courts distinguish between "facial" challenges, which allege that a law is
invalid in all circumstances and must cease to operate altogether, and "as
applied" challenges, which allege that the law is only unconstitutional when
applied to a particular plaintiff. Thus, if a plaintiff prevails in a facial
challenge, the challenged law can no longer be enforced against anyone. But
if a plaintiff prevails in an as-applied challenge, the government may still
be able to enforce the challenged law against other parties.
As-applied challenges are the preferred mechanism to challenge a disclosure
law because such a challenge typically hinges on the particular impact of
that law on a particular plaintiff. In Americans for Prosperity, for
example, the plaintiffs allege that they engage in unpopular political work
that makes their donors unusually vulnerable to harassment and intimidation.
But the same cannot be said about most nonprofits - it is highly unlikely,
for example, that donors to the March of Dimes would be harassed if their
donations became public knowledge.
Thus, when a party challenges a particular disclosure law, courts will often
ask whether that individual party should be exempted from the law, rather
than striking down the law on its face. In Citizens United, for example, the
Court explained that a facial challenge to certain campaign finance
disclosure laws was inappropriate, but "as-applied challenges would be
available if a group could show a 'reasonable probability' that disclosure
of its contributors' names 'will subject them to threats, harassment, or
reprisals from either Government officials or private parties.'"
Nevertheless, the plaintiffs in Americans for Prosperity bring a facial
challenge to California's disclosure law. They also claim that the balancing
test described in Citizens United should be abandoned in favor of something
much more skeptical of disclosure laws.
How Americans for Prosperity might change disclosure laws
Though there are some important differences between the argument in the
Americans for Prosperity Foundation's brief and the Thomas More Law Center's
brief, both argue that Citizens United's relatively permissive rule
governing disclosure laws should be, in the words of the former brief,
"confined to election regulation." Thus, while the government may be able to
require advocacy groups to disclose their donors when those groups attempt
to influence an election, disclosure laws enacted in any other context would
be treated as more suspect.
Most disclosure laws, the plaintiffs claim, must be "narrowly tailored" to
serve the purpose of that law. Thus, they argue, the California law should
fall because the state could use less intrusive methods to investigate
fraudulent nonprofits, such as only subpoenaing records from charities that
are under investigation.
The state, for its part, argues that relying on subpoenas is not enough, in
part because subpoenas tip off a fraudulent organization that it is under
investigation. But there's also a much more fundamental problem with the
plaintiffs' attempts to draw a line between election-related disclosure laws
and laws that do not touch on elections - the border between "issue"
advocacy and election-related advocacy is notoriously porous.
Before Citizens United opened the floodgates to unlimited corporate sending
on elections, for example, lawmakers struggled to draw a sensible line
between "issue" ads - ads intended to inform voters about a policy-related
matter - and "electioneering communications," which sought to influence an
election. If an advocacy group runs an ad saying "tell Congressman Smith
that he was wrong to vote for Obamacare," for example, is that ad merely
educating voters about a policy matter, or does it seek to undermine Smith's
reelection bid? What if the ad also praises Smith's opponent for opposing
Obamacare? What if the ad runs a week before the election?
The plaintiffs' proposed rule could very easily allow advocacy groups to
evade disclosure rules that apply to election ads and similar communications
with voters, so long as those communications superficially appear to focus
on "issues."
Conservatives weren't always so skeptical of disclosure laws
Ultimately, cases like Americans for Prosperity come down to a question of
values. Should donors who wish to spend gobs of money influencing public
policy be allowed to do so anonymously? And if we think that the answer to
this question typically should be no, at what point should we give special
protections to donors who face harassment, boycotts, or worse?
In Doe v. Reed (2010), a case about whether the public should be allowed to
learn who signed a petition seeking to call a referendum on a state law,
Justice Antonin Scalia offered a bracing answer to these questions:
Requiring people to stand up in public for their political acts fosters
civic courage, without which democracy is doomed. For my part, I do not look
forward to a society which, thanks to the Supreme Court, campaigns
anonymously . . . and even exercises the direct democracy of initiative and
referendum hidden from public scrutiny and protected from the accountability
of criticism. This does not resemble the Home of the Brave.
"Harsh criticism, short of unlawful action," Scalia added, "is a price our
people have traditionally been willing to pay for self-governance."
There do have to be some limits on the government's power to require
advocacy groups to disclose their donors - NAACP presents a particularly
stark example of why. And if either of the plaintiffs in Americans for
Prosperity has evidence that their donors face a serious risk of illegal
reprisals, then they should be allowed to bring an as-applied challenge to
disclosure laws that endanger those donors.
But the Americans for Prosperity plaintiffs ask for much more. They ask for
a fundamental shift in how the Court approaches disclosure laws. And, while
they concede that there may still be campaign disclosure laws in the
elections context, it's far from clear that the Court will draw a sensible
line between issue-related advocacy and election advocacy.
The views that Scalia expressed in Doe represent a confident conservatism -
a conservatism that believes it can win the hearts and minds of the nation
through open debate. But that brand of conservatism has been replaced by
something far more insecure, and far more fearful of a frequently overblown
"cancel culture" that is ready to pounce on anyone brazen enough to express
a conservative viewpoint.
Americans for Prosperity will be an early sign of just how far this new, far
more insecure conservatism has penetrated into the Supreme Court.
