Justices to debate donor disclosure
WASHINGTON – More than a decade after the Supreme Court upended campaign finance rules in a landmark case, the justices Monday will hear arguments 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.
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 beforehand.
“There’s 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 appeal through a partisan political lens. The initial suit was filed in 2014 against then-California Attorney General 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 last year.
“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 of the groups and their funding.