Supreme Court Hears First Amendment Donor Disclosure Case
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Justices Appear Poised to Strike Down California Law in Case with Potential to Allow More Dark Money in Politics

The Supreme Court of the United States heard oral arguments in the consolidated cases of Americans for Prosperity v. Becerra and Thomas More Law Center v. Becerra on Monday. The cases raise First Amendment challenges to a California law requiring charities to submit to the state a list of the names and addresses of their major donors to the IRS. The Court’s decision has potential to affect an array of disclosure laws, and in particular, campaign finance laws or regulations against so-called “dark money.”

Conservative watchdog groups filed lawsuits arguing that the policy violates the First Amendment, specifically by depriving donors of their privacy in association. According to the plaintiff petitioners, “California has no need to compel this sensitive donor information to serve any law-enforcement goal,” and the state “virtually never uses” any of the information for law-enforcement purposes.

Election law expert Rick Hasen predicts that “it’s clear that California will not win this case,” and explained that there are multiple roads to such a loss.

The Ninth Circuit applied “exacting scrutiny” — an intermediate level of legal scrutiny — and sided with California; petitioners now ask SCOTUS to reverse, arguing that the case is unconstitutional on its face, and that the Court should apply a higher level of scrutiny to the analysis.

Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Samuel Alito, and Amy Coney Barrett all seemed receptive to the petitioners’ argument that compulsory disclosure of donor lists has some potential to chill speech.

Derek Shaffer conducted oral arguments on behalf of Americans for Prosperity, and he found a likely ally in Justice Thomas, who opened with an innocuous-sounding hypothetical before raising the specter of cancel culture.

“How would it affect your analysis if the organization involved did something that was not controversial, such as provide free dog beds, or taking care of stray puppies or something like that?” asked the justice.

Shaffer quickly responded that the justice’s hypothetical facts would not alter his analysis in any way, and pointed out that PETA was one of the many organizations that filed an amicus brief supporting his position in the case.

Justice Thomas continued, raising a line of questioning he would repeat each time he spoke during arguments: What does California’s law mean for donors who might be seen as contributing to a controversial charity?

“In this era, there seems to be quite a bit of loose accusations about organizations… for example… accused of being a white supremecist organization, or racist, or homophobic… and as a result become quite controversial. Do you think that sort of labeling would change your analysis?” queried Thomas.

“It’s part of the problem,” agreed Shaffer. “Precisely because there is such intensity of views and such a proclivity to vilify perceived enemies in your time, it raises the stakes.”

It was Justice Stephen Breyer, however, who raised the question about how the Court’s decision in this case might affect campaign finance rules.

“If you win in this case, it will have been because the interest of the donors in maintaining privacy of their giving to a charity… outweighs the interest of the state in having a law on the books that even if it never is actually enforced frightens people into behaving properly,” predicted Breyer.

“But if we hold that,” the elder justice continued, “can we distinguish campaign finance laws where the interest is even stronger in people being able to give anonymously?” Later in arguments, Breyer questioned whether this case is a “stalking horse for campaign finance.”

When it was time for Justice Elena Kagan to take her first turn at telephonic questioning, she and Shaffer engaged in a sharp colloquy.

Kagan asked Shaffer to assume that a “very substantial number of donors in a very substantial number of charities” are not concerned about disclosure, “and in fact, they rather like public disclosure of their generosity.” Then Kagan asked how such facts would affect the legality of the disclosure regulation. Shaffer refused to concede any potential truth to Kagan’s hypothetical and the two jousted until Kagan said, “let’s just take my facts as a given.”

Justices Kagan and Sonia Sotomayor were the most skeptical, leaving open the possibility of finding that the petitioner’s rights were violated — but still refusing to strike down the law. As Professor Hasen pointed out, both justices might only agree that the law was problematic on an “as applied” basis.

Justice Alito departed from the world of hypotheticals, and pressed the attorneys on California’s actual history of using the disclosed information.

“Do you doubt that donors to organizations that take unpopular positions on hot-button issues have reason to fear reprisal if those donations are made public? Do you think that’s a legitimate fear in our current atmosphere? Or do you think it’s paranoid?” asked Alito.

Acting Solicitor General Elizabeth Prelogar responded that such a result is certainly possible, but that there is no indication in the record that it is a widespread issue affecting the average donor to the average charity.

Justice Kavanaugh quoted from the ACLU’s amicus brief multiple times, raising the argument that a critical aspect of First Amendment protection is the right to keep association confidential. Such a focus is a possible indication that Kavanaugh would vote to strike down the law not because of the potential chilling effects related to speech, but rather, because of its effect on free association.

Justice Barrett’s involvement in this case has been controversial from the start, many arguing that she should have recused herself because a group related to Americans for Prosperity spent millions on advertising supporting Barrett’s confirmation.

As if to rehash Kagan’s earlier exchange with petitioners, Barrett asked Schaffer whether a law prohibiting all speech on a state university campus would be illegal even if no one complained about it. When she turned to Prelogar, Barrett pressed the attorney on the level of tailoring required in the case — a likely indication that Barrett would support abandoning “exacting scrutiny” for the more demanding “strict scrutiny.”

Chief Justice John Roberts take on the case was somewhat harder to pin down, though some have suggested that Roberts will use the “exacting scrutiny” standard of review, only to redefine that standard in a manner so strict as to strike down most campaign finance laws.

[image via Erin Schaff/POOL/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos