In the wake of Citizens United, one of the few remaining bulwarks against a flood of dark money in politics are the Nation’s campaign disclosure laws: laws that require political organizations to disclose their contributors so that voters can know from where the money powering elected officials’ campaigns is flowing. These laws, however, find themselves under increasing attack. Challenges are being brought, for example, against Utah’s, Colorado’s, and Texas’s disclosure laws. Nonetheless, despite the Supreme Court’s general hostility toward campaign finance laws, it is likely to reject these challenges, just as it rejected a recent challenge to basic disclosure requirements for nonprofit organizations.
The Center for Competitive Politics (CCP)—a group that advocates more secret money in elections, but which does not engage in political activity itself—asked the Court to hear its challenge to California’s law requiring nonprofits doing business in California to disclose their donors to the State’s Attorney General. The law required CCP to file with the State a duplicate of the form it files with the IRS, called a Form 990 Schedule B, that discloses CCP’s significant donors to the government but does not otherwise make those contributors public. And while that law applies to all nonprofits, regardless of whether they engage in political spending or not (just as the IRS requires the form to be filed by political and nonpolitical nonprofits alike), CCP’s challenge was not limited to the California law’s application to nonpolitical organizations. Rather, CCP argued that the Constitution provides contributors the right to “associate” (i.e., contribute) anonymously, unless the Golden State’s AG procured a subpoena supported by articulable suspicion of wrongdoing to force disclosure.
That rationale, if accepted, could have undermined all disclosure laws, including campaign finance disclosure laws. Without those campaign finance disclosure laws, however, suspicious contributions would likely never come to light. “Articulable suspicion” likely would not arise then, and no investigation for corruption could proceed: a result that would fit nicely with CCP’s ideology of ensuring voters remain in the dark.
CCP based its purported right to anonymity in comparisons to the NAACP in Alabama in the 1950s—a group which faced a demand to release the names of its members (regardless of their financial contribution) and the very real risk that those members would be killed if their identities were made public. The Supreme Court found in that case that the NAACP need not disclose its donors where Alabama could show no interest in obtaining them and was likely seeking the members’ names to turn them over to violent individuals who could then seek reprisal. CCP, however, could claim no such comparable harm; rather, the only harm it claimed was that it could no longer solicit donations in California without complying with the State’s law.
The Supreme Court was apparently uninterested in CCP’s comparisons and turned away its challenge, letting stand the judgment of the Ninth Circuit that California’s law served a “sufficiently important” interest to justify disclosure. In that Judgment, Judge Paez, writing for the Circuit, found California’s law, unlike the law at issue in NAACP and comparable cases, was not adopted or enforced “in order to harass members of the registry in general or CCP in particular.” Rather, it was adopted as a legitimate exercise of California’s interest in protecting its citizens from fraudulent nonprofits. Judge Paez then weighed that interest against the “seriousness of the actual burden” on CCP’s First Amendment rights, not CCP’s speculative burdens, and found that the law passed constitutional muster.
The Supreme Court’s denial of CCP’s challenge is not the only time it has refused to hear a challenge to disclosure laws. In October, Justice Kennedy denied a petition arising from Montana’s law requiring the disclosure of donors to political committees operating in that state. The Montana law defined political committee as any group spending more than $250 in a year to support or oppose a candidate: a far broader category of groups than federal law currently requires to disclose donors. Nonetheless, the Supreme Court saw no reason to stay the lower court’s order allowing inquiry into the challenger’s donors.
Indeed, by turning away these challenges, the Supreme Court is merely following the guidance it has provided in numerous decisions regarding campaign finance: that disclosure can serve a legitimate and important interest that survives constitutional scrutiny. Particularly in the campaign finance context, the Court has found that “disclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office.” Even in Citizens United, the Court reaffirmed the validity of disclosure, stating that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Simply put, disclosure can play a vital role: it helps agencies make sure that nonprofits are following the rules and promoting the public welfare, just as in other contexts, public disclosure both helps detect violations of campaign finance laws and aids citizens’ First Amendment rights by providing them with the information they need to weigh what they hear and to express informed opinions themselves. The Supreme Court, recognizing those roles, was uninterested in hearing CCP’s challenge and undermining the foundations of disclosure laws. The other, more direct, challenges to campaign finance disclosure laws making their way through the courts should meet the same fate.