In its infamous ruling in Citizens United v. FEC, the Supreme Court in 2010 struck down most limits that had been placed on corporations' ability to influence elections while narrowly defining the public interest in the regulation of corruption and the appearance of corruption as applying only to cases of actual quid pro quo bribery. Justice Anthony Kennedy's opinion for the court, however, suggested another remedy the legislative branch could try: While the government could not "suppress [corporate] speech altogether," Kennedy wrote, it "may regulate corporate political speech through disclaimer and disclosure requirements."
A decade later, however, Kennedy's suggestion is looking more like a bait-and-switch than a viable way to restrict corporate influence on politics.
The court heard oral arguments Monday in challenges to a California law that requires nonprofits to disclose their biggest donors, brought by two conservative activist groups, the Thomas More Law Center and the Americans for Prosperity Foundation. It is likely that this case will strictly limit the ability of Congress and state governments to ever force the disclosure of the identities of big donors trying to influence political outcomes.
A broad First Amendment holding in the case would make it difficult for most campaign finance requirements to ever survive judicial review.
As an expert on campaign finance and election law, Richard Hasen, a professor at the University of California, Irvine Law School, observes, given the particular set of facts, California is almost certain to lose — and it may not get a single vote. This particular disclosure law required all tax-exempt charities, not just those trying to influence public officials, to provide the state government with their federal tax returns, but it did not make that information public. However, as Hasen says, California "collected donor information for law enforcement purposes but allowed the information to leak." (At trial, the plaintiffs showed that mistakes by public employees left 1,800 such documents publicly available, and a consultant they hired was able to access the entire database by changing one character in the website.)
Recognizing an inevitable loss, the Biden administration in its brief, along with questioning by the court's Democratic members, suggested the possibility of a narrow ruling, holding that California's disclosure requirements violated the First Amendment as applied to this particular set of facts while still giving the state significant leeway to require the disclosure of major donors who use their money to influence politicians.
At oral argument, however, the court's Republican members appeared to have little interest in a minimalist holding. California's disclosure law is likely to be struck down entirely rather than merely ruled unconstitutional as applied to these plaintiffs; a broad First Amendment holding would make it difficult for most campaign finance requirements to ever survive judicial review.
Scalia noted that the First Amendment protects attempts to change the law, people criticizing the proposed changes and the people proposing them.
This shift from the middle ground of creating disclosure requirements as an alternative to restricting campaign spending should not be terribly surprising, as it represents a growing Republican consensus that not only should big donors be able to spend as much as they like to influence politics, but they also should not have to face public scrutiny.
Despite the apparent consensus represented by the language in Kennedy's Citizens United opinion less than 15 years ago, such requirements have produced internal tensions among the court's Republican members. This can most easily be seen in the landmark case Doe v. Reed, which upheld a Washington state law requiring that petitions to put referendums on the ballot be made public — including the names and addresses of people signing the petitions. It went before the court because opponents of a recently passed Washington law granting expanded civil benefits to same-sex couples argued that they had the right to try to get a referendum to overturn that law on the ballot without publicly disclosing the identities of any petitioner; the Supreme Court narrowly rejected their arguments.
Conservatives were not, however, always opposed to disclosure requirements: Justice Antonin Scalia argued in his concurrence in Doe v. Reed that people who want to try to change a state's laws should be willing to stand up for their views, even if it means harsh criticism and opposition. And while threats and intimidation are illegal, Scalia noted that the First Amendment protects attempts to change the law, people criticizing the proposed changes and the people proposing them. "Harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance," Scalia argued, and people trying to affect public policy should not expect to be "hidden from public scrutiny and protected from the accountability of criticism."
Scalia and Kennedy, however, are gone from the court — and Justice Clarence Thomas' solo dissent in Doe v. Reed, rather than the words in Citizens United, has ultimately been far more influential on the right. Thomas claimed in Doe v. Reed that "the state of technology today creates at least some probability that signers of every referendum will be subjected to threats, harassment, or reprisals if their personal information is disclosed." As a result, he said, the First Amendment generally protects the privacy of petition signers and donors.
Critically, Thomas' view about the question of disclosure — i.e., there should not be any — is also reflected in the actions of congressional Republicans. Acting at Kennedy's invitation in Citizens United, House Democrats in 2010 passed the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act, which would have required transparency from major spenders on political campaigns. But the bill was filibustered by Senate Republicans, who have consistently thwarted all subsequent attempts to revive the legislation.
Now it appears that, with the two disclosure cases from California, the Supreme Court's other Republican members will move most or all of the way toward Thomas' position. If they do, the influence of the "dark money" described in Jane Mayer's classic book will only increase, as the court will not only have eliminated limits on campaign spending by deep-pocketed people, groups and corporations, but also allowed them to wield their influence without any public transparency.
Neither would be good news for American democracy.