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.
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.