COMMENTARY In today’s angry world, donors deserve anonymity
The Supreme Court’s decision to strike down California’s law requiring disclosure of large donors to registered charities is bound to be controversial but seems to me, on balance, correct. Part of the reason is libertarian: It’s no business of mine where my neighbors choose to give money, and it’s no business of theirs where I do. The rest of the reason, well, I’ll get to that.
In Americans for Prosperity Foundation v. Bonta — popularly known as AFP — two conservative-leaning groups challenged the California requirement as violating their rights under the First Amendment. In a 6-3 opinion by Chief Justice John Roberts, the court largely agreed. The disclosure rule, according to the majority, burdens the right to free association, which is closely tied to the right to associate privately. To justify the burden, there must be “a substantial relation between the disclosure requirement and a sufficiently important governmental interest” — and, in addition, the disclosure must “be narrowly tailored to the interest it promotes.” A generalized interest in preventing wrongdoing does not justify so broad a demand.
The source case for this analysis is the 1958 decision in NAACP v. Alabama ex rel Patterson, where the court on similar grounds struck down an Alabama law requiring disclosure of the NAACP’S membership list. The justices were rightly worried that, in the heart of Jim Crow country, members of the organization would face intimidation or worse. Thus keeping their names private was crucial to the ability to associate.
Justice Sonia Sotomayor’s powerful dissent in AFP mocks the majority’s notion that NAACP v. Alabama is a controlling case, pointing out that the court there was concerned about the “reprisals and violence” against civil rights activists that were all too common in the 1950s. Here, she writes, there’s no serious prospect that wellshod donors to conservative activist groups will face “threats, harassment, or reprisals.”
Sotomayor is largely correct — and probably as tired as I am of seeing important civil rights victories hijacked by the right. Yet the majority also has a point. NAACP v. Alabama did arise in the unique circumstance of the civil rights movement, but the justices rested the opinion on the First Amendment’s right of free association. The language was categorical: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” The court added that intimidation resulted from “private community pressures” rather than state action.
This sort of holding is hard to write around.
Things might be different if this were a world in which people were sufficiently reasonable to accept that the other side often has a case. But it isn’t. For a long time, the American right made a specialty of tearing people down because of the causes they gave to. Nowadays a lot of the tearing down is done by the left. Whoever is doing it, our democracy isn’t terribly good at helping us respect each other across our deep differences.
Which brings me to my second reason for agreeing, reluctantly, with the majority. NAACP v. Alabama arose under special circumstances, but the problem is more general. This is not a world in which civil rights protesters are routinely fired from jobs, have their houses torched, and dragged into the woods and murdered. It is in a world in which people try to punish each other for espousing controversial views. Not just criticize — punish. That the punishments are far smaller than those that led to NAACP v. Alabama doesn’t mean they’re not punishments.
In this sense, the close link between the right of public association and the right to associate privately may be viewed as a prophylactic approach to protecting constitutional rights. If the names of donors must be disclosed, there are people who won’t give. If this weren’t true, there would be no reason for the plaintiffs to litigate the case.
What about downstream effects? At oral argument, Justice Stephen Breyer worried that a ruling for the plaintiffs might eviscerate campaign finance laws, which rest centrally on disclosure of contributions. But this needn’t be so. For one thing, as my colleagues Bruce Ackerman and Ian Ayres have persuasively shown, it’s possible to protect against corruption without disclosure, through the device of a “secret donation booth” — a mandate that all campaign contributions remain secret, even from the candidate. For another, campaign giving can be distinguished from other forms of associational activity, and the majority is careful to do just that.
Perhaps the decision in AFP is as dangerous as its critics will say. If so, I hope they will join me in resisting efforts to condemn others for the causes they give to. Otherwise, the majority will turn out to be right.
For a long time, the American right made a specialty of tearing people down because of the causes they gave to. Nowadays a lot of the tearing down is done by the left. Whoever is doing it, our democracy isn’t terribly good at helping us respect each other across our deep differences.