On Thursday morning, the Supreme Court ruled that the state of California cannot require its charities to report information about the identities of their major donors. It was the second of two major cases decided by 6–3 margins on the last day of the term. Chief Justice John Roberts authored the majority opinion and found the California regulation was unconstitutional on its face. While the seemingly narrow opinion doesn’t get to the larger questions about campaign finance disclosure laws, it surely opens the door to their demise, a point noted by Justice Sonia Sotomayor in dissent: “Today’s analysis marks reporting and disclosure requirements with a bull’s-eye.”
The policy this case knocks down required California charities to file a copy of an IRS form with the names and addresses of its major donors annually. As a result of a security breach, some of this information had been disclosed online. The petitioners—Americans for Prosperity Foundation, a Koch-affiliated group, and the Thomas More Law Center—claimed that the compelled disclosure violated their First Amendment rights and the rights of their donors, and that state collection of this information would subject them to harassment and reprisals. (Americans for Prosperity, it should be noted, told the Hill it spent “in the seven figures” on its campaign to have Justice Amy Coney Barrett seated at the court last fall.)
Roberts likened the dispute to a civil rights era case, NAACP v. Alabama, which prevented the attorney general of Alabama from accessing the NAACP’s membership list—an example of compelled disclosure the court said was prohibited under the First Amendment. Using an “exacting scrutiny” standard, the chief justice found that California’s “blanket demand” for these tax documents is facially unconstitutional, batting away California’s stated interest in battling charitable fraud and self-dealing. “When it comes to the freedom of association,” he wrote, “the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough.”
In the California example, some of the donors “have been subjected to bomb threats, protests, stalking, and physical violence,” Roberts wrote, adding that “such risks are heightened in the 21st century and seem to grow with each passing year.” Because computers. Sotomayor noted in dissent that these reprisals arose in different contexts and not because California collected their information. Roberts noted that many good liberal groups like the ACLU and the Knight Foundation and the Human Rights Campaign joined the challengers in this case, in case one was worried that only wealthy conservative donors want to preserve their anonymity. The concurring justices—Clarence Thomas, Sam Alito, and Neil Gorsuch—would have applied an even higher standard, strict scrutiny, to invalidate the rule.
In her dissent, joined by Justices Elena Kagan and Stephen Breyer, Sotomayor pointed out that the wealthy objectors now need show no objective harms at all, and that “the same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support.” The majority, she noted, has vaulted us all into a world in which “a subjective preference for privacy, which previously did not confer standing, now subjects disclosure requirements to close scrutiny,” and added that since “all disclosure requires some loss of anonymity, and courts can always imagine that someone might, for some reason, prefer to keep their donations undisclosed,” it stands to reason that hereinafter “all disclosure requirements ipso facto impose cognizable First Amendment burdens.” Sotomayor ended her dissent by pointing out that this result only very recently commanded a single vote on a court: “That disclosure requirements directly burden associational rights has been the view of Justice Thomas, but it has never been the view of this Court.” This is not just a big win for big wealthy donors and dark money and vague claims that they should get to operate in the shadows because they are America’s real victims. This case is potentially the end for campaign disclosure rules in general and for oversight and transparency.
There is a strange two-step happening in both of today’s major cases. In Shelby County in 2013, the Supreme Court promised that the effects of its decision on Section 5 of the Voting Rights Act would not be consequential because racial voting practices would still be covered by Section 2. Well, today the court slashed Section 2 to the bone. By the same token, when the court decided Citizens United in 2010, the majority promised us that doing away with campaign finance rules would not be consequential because robust disclosure rules would take care of any corruption. Well, today the court made it unlikely that campaign finance disclosure laws will survive. Doing terrible things in two steps over many years doesn’t make doing the terrible thing less terrible. Today the court made it harder to regulate actual charitable corruption, and easier to regulate imaginary vote fraud. Neither of those outcomes is good for democracy.