USA TODAY International Edition
1st Amendment case at high court
Justices to consider privacy, transparency
WASHINGTON – More than a decade after the Supreme Court upended campaign finance rules in a landmark case, the justices hear arguments Monday in a challenge to disclosure requirements that could make it easier for donors to spend anonymously.
At issue is a California mandate that nonprofits disclose their top contributors to state regulators. Two conservative groups, including one tied to Republican megadonor Charles Koch, say the state’s requirement violates the Constitution by subjecting the donors to threats of violence from political opponents and, thereby, chilling the exercise of their First Amendment rights.
The groups point to a landmark 1958 civil rights case in which the Supreme Court struck down a request by Alabama that the NAACP reveal its membership, a decision that required governments to weigh their need for information against the potential that its disclosure could make people nervous to join an advocacy group.
Though the case turns on a technical question about how to apply that standard, groups working to reduce the influence of money in politics fear a broad ruling by the high court in favor of privacy could weaken disclosure requirements in elections, making it easier for big donors to influence the outcome of political campaigns anonymously.
“Even though they’re saying the case had nothing to do with elections and is not about public transparency, if there’s a bad ruling here it could be leveraged to expand these exemptions from transparency in election spending,” said Beth Rotman, national director of money in politics and ethics at Common Cause.
The Americans for Prosperity Foundation, founded by Koch, and the conservative Thomas More Law Center say Americans should be able to donate to causes – especially controversial ones – without having to disclose their identity. They question California’s need for the donor lists. And they argue the case has nothing to do with campaign disclosure requirements, which the Supreme Court has recognized serve a legitimate government function.
California says it uses the donor lists for fraud investigations. The groups say the state should ask for the lists once an investigation is underway, not before.
“No need for them to be asking for tens of thousands of confidential donor names and amounts in advance,” said John Bursch, vice president of appellate advocacy with Alliance Defending Freedom, which is representing the law center. “They testified that they never once had a problem getting it after the fact.”
It would be easy to read the case through a partisan political lens. The initial suit was filed in 2014 against then- California Attorney General, nowVice President Kamala Harris. Americans for Prosperity, a sister organization to the foundation, is a major player in conservative politics – so much so that several Democratic lawmakers demanded Associate Justice Amy Coney Barrett recuse herself in the case because the group spent more than $ 1 million supporting her confirmation.
“They’re pursuing a substantive constitutional right to secret election and political spending that has not existed before,” said Sen. Sheldon Whitehouse, D- R. I., one of the lawmakers calling for Barrett’s recusal who has raised questions about the transparency ofthe groups and their funding. “The question is, will the Supreme Court reach that far and do that kind of damage?”
Barrett hasn’t said whether she will take part in the case.
While the appeal has drawn support from many conservative organizations, it has also been joined by the American Civil Liberties Union, the NAACP Legal Defense and Educational Fund and the LGBTQ advocacy group Human Rights Campaign. All of them 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 hand down a body blow totransparency so far- reaching that it undermines disclosure requirements for political campaigns.
That’s partly because the court has defended the government’s interest in regulating campaign finance. In California’s case, the groups say, that government interest is less obvious because 46 other states don’t require nonprofits to disclose donors.
“You’re supposed to attack this with a scalpel, not a sledgehammer,” said Trevor Burrus, editor- in- chief of the libertarian Cato Institute’s Supreme Court Review. “It’s kind of hard for California to say ‘ we have to do this’ when a bunch of states don’t do it.”
From sabotaged tents to death threats, the groups point to a litany of incidents they say show their donors’ safety would be jeopardized if their names were revealed. During a 2012 rally in Michigan, for instance, protesters tore down an Americans for Prosperity event tent, trapping several elderly attendees inside, the group said.
Disclosing donors’ names, the groups say, would give people pause about contributing out of fear of similar reprisals. And that, they have told the court, would lead to a chill on the First Amendment freedom of association. A federal district court in California agreed in its 2016 decision, noting it was “not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”
Opponents counter that most nonprofits, including those involved in the case, are already required to disclose donors to the IRS for tax reasons. At the federal and state level, they say, the data is used only for investigations and is not supposed to be released to the public – though past slip- ups have occurred.
A decision in the case is expected in June.
Groups working to reduce the influence of money in politics fear a broad ruling by the high court in favor of privacy could weaken disclosure requirements.