This Supreme Court term is likely to be a blockbuster with rulings on Obamacare subsidies, independent redistricting and same sex marriage. There’s a lot of room for judicial mischief or ground breaking case law. But at this point, I’m thanking my lucky stars about two cases the Supreme Court declined to hear on campaign finance disclosure. Here’s why those two cases matter.
There’s a dark money problem in American politics at both the state and federal level. Political spenders are using opaque nonprofits to hide their political spending. And this hiding can be incredibly effective. We still do not know the source of hundreds of millions of dollars in federal election spending. At the state level it can be even more eerie. In many states we don’t know what we don’t know because not all states’ disclosure laws capture so called “sham issue ads” that name candidates and avoid the magic words “vote for or against.” (To see how your state ranks on its disclosure laws, check out the handy map from the good folks at www.followthemoney.org.)
Opponents of transparency of money in politics have launched at least three lines of legal attacks on the campaign finance disclosures that Americans do have: (1) opponents try to severely cut back on what counts as a PAC, (2) opponents try to limit disclosures of who is paying for political ads and (3) opponents try to carve out a huge harassment exception to disclosure.
PACs (or Political Action Committees) are under attack because PACs provide the public with the most transparency. Typically PACs must account for every dollar in and every dollar out. This type of transparency is the antithesis of “dark money” where the public has no idea where the money came from.
A case from Vermont called Vermont Right to Life Committee, Inc. v. Sorrell involved the first two lines of attack on Vermont’s PAC disclosure laws and its regulation of electioneering communications. The Plaintiffs here had a litany of complaints:
First, VRLC challenges the statute requiring that “electioneering communications” identify their sponsor. Second, VRLC challenges the statute requiring that groups engaged in any “mass media activity” must submit certain reports to the Vermont Secretary of State and relevant candidates. Third, VRLC challenges Vermont’s definition of “political committees” and its requirement that such committees submit campaign finance reports.
The Second Circuit agreed with Vermont in upholding the state’s regulation of electioneering communications that “[a]lthough [the plaintiffs’] position finds some support in pre‐Citizens United decisions, it cannot be squared with Citizens United.” Furthermore, the Second Circuit agreed that the lower court “correctly found that Vermont’s PAC definition, in the context of disclosure requirements, survives exacting scrutiny.” And in a very interesting part of the case, the Second Circuit ruled that an independent expenditure group that is enmeshed with a group that makes campaign contributions can be subject to contribution limits. As the court wrote, the lack of independence of the two groups “is clear from the total overlap of staff and resources, the fluidity of funds, and the lack of any informational barrier between the entities.” Therefore, the court concluded, “we agree with the district court that Vermont’s contribution limits … are permitted.”
The Supreme Court denied cert. January 12. This means Vermont can keep enforcing its campaign disclosure laws against political spenders that are trying to obfuscate. This means that other state election agencies and the FEC can be more rigorous in enforcing disclosure requirements and it also means that Congress and state legislatures can follow Vermont’s lead to close dark money loopholes.
Then there was the case from California ProtectMarriage, which I wrote about at more length here. ProtectMarriage was an attempt to broaden who could be covered by the harassment exemption to campaign finance disclosure.
This issue isn’t going away anytime soon. The group Citizens United raised it in their case by the same name as did Doe in Doe v. Reed. Citizens United had argued to the Supreme Court that disclosure requirements would chill donations to their organization “by exposing donors to retaliation.” The Supreme Court found the harassment exception inapplicable to Citizens United as a group. As the Court explained, there had been no credible showing of harassment: “Citizens United, however, has offered no evidence that its members may face similar threats or reprisals.To the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation.”
The Doe plaintiffs asserted that they would face harassment if the state of Washington released the names of who signed a petition to get a referendum on the ballot. As the Supreme Court framed the issue in the Doe v. Reed case: “Plaintiffs explain that once on the Internet, the petition signers’ names and addresses ‘can be combined with publicly available phone numbers and maps,’ in what will effectively become a blueprint for harassment and intimidation. . . .” The Court declined to find Washington’s disclosure law facially invalid, though there was deep disagreement among the Justices about how a future group would prove that it has been sufficiently harassed to receive the harassment exemption to disclosure.
Undaunted by Citizens United and Doe, ProtectMarriage tried and failed to get a harassment exemption to California’s disclosure laws. And on March 2, the Supreme Court denied cert in ProtectMarriage thus leaving intact lower court rulings in favor of disclosure. This is a good thing because a broad harassment exemption could very well swallow the rule of disclosure.
And we can live with disclosure in our democracy. As Justice Scalia noted in Doe v. Reed:
There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Sometimes the sweetest sounds in the Home of the Brave are the words “cert. denied,” especially when what the Supreme Court leaves in place are reasonable disclosure laws that inform the public who is trying to influence their vote.