Supreme Court Disclosure Test
Donor disclosure has become a weapon of political intimidation, and it could get worse. The Supreme Court will soon consider whether ads that discuss policy issues without advocating for a candidate can be regulated and the names of their financial backers disclosed under campaign-finance laws.
In 2014 the Independence Institute, a Colorado free-market think tank, wanted to run ads asking voters to tell Colorado Senators Mark Udall and Michael Bennet to vote for a bill to reform criminal-sentencing guidelines. Mr. Udall was running for re-election but Mr. Bennet was not, and as a 501(c)(3) nonprofit, the Independence Institute does not engage in electoral advocacy.
Under current election law, however, those distinctions don’t matter. The 2002 McCain-Feingold Act says that any group that runs an ad including the name of a candidate within 30 days of a primary or 60 days of a general election must disclose its donors like a political-action committee. Yet the Independence Institute merely intended to communicate with voters on issues, not advocate for a candidate.
The Independence Institute sued in a pre-enforcement challenge questioning the constitutionality of the law. In November a three-judge federal court rejected its argument, ruling that the disclosure was allowed under the Supreme Court’s 2010 Citizens United decision. Under McCain-Feingold, any constitutional challenge to the law is directly appealed to the Supreme Court, which can summarily affirm the lower court or queue the case for argument.
In Buckley v. Valeo (1976), the Supreme Court said disclosure is constitutional only when an ad is speaking “unambiguously” about a candidate because there is a public interest in knowing a candidate’s financial backers. Most campaign-finance lawyers agree that, under the current state of the law, political advocacy for or against candidates can be regulated and reported to the Federal Election Commission and donors can be disclosed.
Issue speech is a different matter. The law has historically put this in a separate legal category because it represents communications among citizens and voters about policy. In NAACP v. Alabama in 1958, the Supreme Court recognized there is a danger in compelled disclosure when donors are advocating for unpopular causes, which at the time was civil rights in the Jim Crow South.
Speech regulators like to point to a line in Citizens United that seems to support broad disclosure requirements. Noting that disclosure could be less restrictive than other speech regulation, the Justices wrote that they “reject Citizens United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.”
But Citizens Unite d involved a case in which a group was directly engaged in speech against Hillary Clinton’s 2008 presidential candidacy. The Independence Institute presents a case of issue speech unrelated to an election. In McConnell v. FEC in 2003, the Justices wrote that “[W]e assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads.”
The Supreme Court will consider the Independence Institute appeal in a private conference Friday. If the Justices uphold the lower court, much more political speech will fall under the federal campaign-finance dragnet. Here’s hoping Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, will clarify that donor disclosure violates the Constitution when it imposes undue burdens on Americans who advocate for causes—especially those that might be unpopular.