Rep. Joaquin Castro (D-Texas), who manages the presidential campaign of his twin brother Julián Castro, is at the center of controversy after he Tweeted a list on Monday identifying the names and occupations of 44 of President Donald Trump’s donors. While polemical tweet has been decried by Republicans and defended by Democrats, ACLU attorney Joshua Block had a more nuanced take on the current conflict and future of donor disclosure regulations.
Block first pointed out that while the identification of political donors can be extremely newsworthy, the crux of that import is dependent upon who is being held accountable: the elected official or the donor.
“I think the disagreement about posting info about [Donald] Trump’s donors turns on a distinction between (a) using donor info to hold elected officials accountable and (b) using donor info to hold donors accountable,” Block wrote. “[The New York Times] and other newspapers often write stories based on donor info to say that politician X is beholden to the interests of big donor Y. But they are not used . . . to say that donor Y should be criticized for their support of politician X.”
However, Block then noted that celebrated conservative Justice Antonin Scalia had addressed just such a controversy in his 2010 concurrence in John Doe No. 1 v. Reed, where the Supreme Court ruled that the disclosure of signatures on a referendum does not violate the Petition Clause of the First Amendment to the United States Constitution.
“What did Scalia think about this?” Block asked before quoting directly from Scalia’s concurrence: “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.”
Block then analyzes the future state of public disclosure in light of the Supreme Court’s controversial decision in Citizens United v. FEC, where the Court held that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political communications by corporations.
“The Supreme Court in Citizens United upheld disclosure requirements by an 8-1 vote, but this is an area where swapping Scalia for [Justice Neil] Gorsuch and swapping [Justice Anthony] Kennedy for [Justice Brett] Kavanaugh may have dramatically changed things.”
Overall, Block concluded that under the current iteration of the court, the infamous Citizens United decision may not remain the law of the land for long.
“The upshot is that — without someone to take of Scalia’s mantle — there is suddenly a real chance this Supreme Court might overturn a lot of precedent on this issue.”
Block made the comments on Twitter, which he makes clear is a place for his personal views, not those of the ACLU.
[Image via ROBERTO SCHMIDT/AFP/Getty Images.]