WASHINGTON – More than a decade after the short Supreme changed campaign finance rules in a historic case, judges hear arguments on Monday in a challenge to disclosure requirements that could make it easier for donors to spend anonymously.
At stake is a California mandate for nonprofits to disclose their top contributors to state regulators. Two conservative groups, including one linked to Mega-Honorable Republican Charles Koch, say the state demand violates the Constitution by subjecting donors to threats of violence of political opponents and therefore hampering the exercise of their First Amendment rights.
Groups point to a landmark 1958 civil rights case in which the Supreme Court overturned an Alabama request that the NAACP reveal its members, a ruling that required governments to weigh their need for information against the potential that its disclosure could make people nervous about joining a group defense.
Although the case revolves around a technical question of how to apply this standard, groups working to reduce the influence of money in politics fear that a general High Court ruling in favor of privacy may weaken disclosure requirements during elections, making it easier for large donors. to influence the outcome of political campaigns anonymously.
“Even if they say the case has nothing to do with elections and is not about public transparency, if there is a bad decision here it could be exploited to extend these transparency exemptions in spending.” elections, ”said Beth Rotman, National Money Manager in Politics and Ethics at Common Cause.
The Americans for Prosperity Foundation, founded by Koch, and curator Thomas More Law Center say Americans should be able to donate to causes – especially controversial subjects – without having to reveal their identity. They question California’s need for donor lists. And they argue the case has nothing to do with campaign disclosure requirements, which the Supreme Court has recognized as performing a legitimate government function.
California says it uses donor lists for fraud investigations. The groups say the state should request the lists once an investigation is underway, not before.
“It is not necessary for them to request tens of thousands of names and confidential amounts of donors in advance,” said John Bursch, vice president of appeal advocacy for Alliance Defending Freedom, which represents the legal center. “They testified that they never had a problem getting it after the fact.”
It would be easy to read the case through a partisan political lens. The original complaint was filed in 2014 against the California Attorney General at the time, now-Vice President Kamala Harris. Americans for Prosperity, a sister organization of the foundation, is a major player in conservative politics – so much so that several Democratic lawmakers demanded Associate Judge Amy Coney Barrett is recusing itself from the case because the group spent more than a million dollars to support its confirmation last year.
“They pursue a substantive constitutional right to secret elections and political spending that did not previously exist,” said Sen. Sheldon Whitehouse, DR.I., one of the lawmakers calling for Barrett’s recusal who raised questions about the transparency of the groups and their funding. “The question is, will the Supreme Court go that far and do that kind of damage?”
Barrett did not say if she would participate in the case.
While the call received the support of many conservative organizations, it was also joined by organizations such as the American Civil Liberties Union, the NAACP Legal Defense and Educational Fund, and the LGBTQ Human Rights Campaign. All say they fear the potential for retaliation against donors if their names are disclosed.
Several experts supporting the challenge said they doubt the Supreme Court, even with its relatively new 6-3 conservative majority, will deal a blow to disclosure of such scope as to undermine disclosure requirements for campaigns. policies.
This is in part because the court defended the government’s interest in regulating campaign finance. In the case of California, groups say government interest is less obvious because 46 other states do not require nonprofits to disclose donors.
“You’re supposed to attack this with a scalpel, not a hammer,” said Trevor Burrus, editor of the Supreme Court journal of the libertarian Cato Institute. “It’s a little hard for California to say ‘we have to do this’ when a bunch of states don’t.”
Threats from donors
From sabotaged tents to death threats, the groups are reporting a litany of incidents that they say show their donors’ safety would be at risk if their names were revealed. At a 2012 rally in Michigan, for example, protesters demolished a tent at the Americans for Prosperity event, trapping several elderly people inside, the group said.
A year earlier, protesters surrounded an American Prosperity Foundation event in Washington, DC, blocking exits and injuring several people.
Disclosure of donor names, the groups say, would give people a pause over their contribution for fear of similar retaliation. And that, they told the court, would lead to a cold on First Amendment freedom of association. A California Federal District Court agreed in its 2016 ruling, noting that it was “not prepared to wait for an AFP opponent to execute one of the many death threats made against its members.”
Opponents counter that most nonprofits, including groups involved in the case, are already required to disclose donors to the Internal Revenue Service for tax purposes. At the federal and state levels, they say, the information is only used for investigations and is not meant to be made public – although past slippages have occurred.
The California-based 9th Circuit US Court of Appeals overturned the lower court’s decision, ruling that the groups never really demonstrated that a potential donor had in fact decided not to donate money because past incidents. Without this concrete evidence of harm, the court ruled, the case collapses.
“The plaintiffs have failed to demonstrate a real burden on First Amendment rights,” the court wrote.
Others cite a 2010 opinion by the late Conservative Deputy Judge Antonin Scalia, who wrote that holding people to account for their public opinions fosters civic courage “without which democracy is doomed to failure.”
the nonprofits rely on civil rights case from 1958 when Alabama demanded that the NAACP reveal its membership, a dangerous demand in the Jim Crow South. The Supreme Court blocked it, ruling that governments must demonstrate a “substantial relationship” between the information they seek and a “primary and compelling state interest”.
In this case, the appeals court said California meets the requirement, but the groups want the Supreme Court to read another condition in the standard. If the government wants to restrict freedom of association, they told the court, then the requirement would have to be “narrowly tailored” to achieve the goal.
If the judges agree, they argue, then California’s disclosure requirement must go.
“When the government infringes on a right, it must try to do so by the narrowest means possible,” Bursch said. “And the reason for that … is that if they do it more closely, it violates less rights.”
If the court applies this high-level rule, groups pushing for stricter campaign finance laws fear the next trial will also challenge disclosure requirements for the election.
“If you’re going to expand these assumptions so broadly, then you’re really going to take away a lot of the transparency that we have in political disclosure laws,” Rotman said.
A decision in the case is expected in June.