Rep. Sarbanes & D21 File Brief Urging SCOTUS to Follow Precedent Upholding Disclosure

Rep. Sarbanes & Democracy 21 File Brief Urging Supreme Court to Follow Precedent on Upholding Disclosure

Rep. John Sarbanes (D-MD) and Democracy 21 last week filed a brief with the Supreme Court as amicus curiae in the case Americans for Prosperity v. Becerra.  The case raises issues about the scope of a state law donor disclosure requirement for charitable groups but may have implications for the constitutionality of campaign finance disclosure as well.

The main authors of the amicus brief are former U.S. Solicitor General Seth Waxman and Catherine Carroll of Wilmer Hale.

The issue before the Court is whether the State of California can require a section 501(c)(3) nonprofit organization to file a copy of its federal tax schedule that discloses the names of the group’s large donors under a California law that protects the confidentiality of the filing with the state. The Ninth Circuit upheld the law, finding that the requirement for a charity to file a list of its large donors with the state was a reasonably tailored measure to guard against fraud and did not impinge upon the group’s First Amendment rights.

The group – Americans for Prosperity – asked the Supreme Court to review the ruling and the Court granted certiorari to do so.  When the Court was considering whether to take the case for review, a number of outside groups filed briefs asking the Court to use the case as a vehicle to broadly rule on the First Amendment standards for the constitutionality of disclosure requirements that apply to groups spending money in elections.

The Sarbanes-Democracy 21 brief filed this week stated that it took no position on the constitutionality of the California law at issue in the case, but urged the Court not to accept invitation by others to expand the scope of the case to reach campaign finance disclosure laws.

The amicus brief noted that the petitioners themselves expressly said that the issue before the Court does not involve campaign finance disclosure laws and that such laws are based on different and broader constitutional justifications:

This case concerns only whether the Attorney General of California may require 501(c)(3) charitable organizations to disclose information to the State about their significant donors. As petitioners repeatedly acknowledge, “[t]his case has nothing to do with elections,” and the 501(c)(3) organizations subject to the Attorney General’s policy are prohibited from making any election-related expenditures. . . .

The substantial government interests that disclosure requirements serve in the election context are not at issue in this case—indeed, the Attorney General has “disavowed the traditional interest in public disclosures that has been credited in election cases.”

Br. at 3-4. The brief argued that campaign finance disclosure rules have long been upheld by the Court as serving substantial governmental purposes:

Election-related disclosure requirements have repeatedly been upheld under the “exacting scrutiny” test set forth in Buckley v. Valeo, 424 U.S. 1, 68 (1976) (per curiam), because transparency regarding the true sources of campaign-related spending serves the substantial governmental interests in informing the electorate, deterring corruption, and enabling enforcement of campaign-finance laws. See, e.g., Doe v. Reed, 561 U.S. 186, 196 (2010); Citizens United, 558 U.S. at 367; McConnell, 540 U.S. at 196; Buckley, 424 U.S. at 68. The Court has recognized that disclosure is the least restrictive means of achieving those ends. See, e.g., McCutcheon v. FEC, 572 U.S. 185, 223 (2014) (plurality). While Congress is “entitled to conclude that disclosure [is] only a partial measure,” and that contribution limits ceilings may be necessary “even when the identities of the contributors and the amounts of their contributions are fully disclosed,” Buckley, 424 U.S. at 28, the Court’s jurisprudence limiting other forms of campaign-finance restrictions has taken the backstop disclosure provides as an essential premise. See, e.g., McCutcheon, 572 U.S. at 224 (plurality).

The brief noted that:

Disclosure requirements have been a cornerstone of federal campaign-finance law for more than a century. See Buckley v. Valeo, 424 U.S. 1, 61 (1976) (per curiam) (discussing Act of June 25, 1910, c. 392, 36 Stat. 822). As long ago as Burroughs v. United States, 290 U.S. 534 (1934), this Court unanimously held that Congress “undoubtedly possesses [the] power” to safeguard presidential elections by requiring public disclosure of political contributions. Id. at 545, 548.

The brief stated:

Since Buckley, this Court has continually reaffirmed the value of disclosure to informing the electorate, deterring corruption, and aiding enforcement of applicable campaign-finance limits. In McConnell v. FEC, 540 U.S. 93 (2003), eight justices agreed to uphold the disclosure provisions of the Bipartisan Campaign Reform Act (BCRA) against a facial challenge, again emphasizing the governmental interests in “providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions.” Id. at 196. In Citizens United, eight justices again upheld BCRA’s disclosure requirements against an as-applied challenge, noting that “[d]isclaimer and disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities and do not prevent anyone from speaking.” 558 U.S. at 366-367 (quotation marks and citations omitted).

The brief spelled out the important interests that the Court has recognized are served by campaign finance disclosure rules:

First, “disclosure provides the electorate with information ‘as to where political campaign money comes from and how it is spent.” Buckley, 424 U.S. at 66-67 (quoting H.R. Rep. No. 92-564, at 4 (1971)). This information “‘insure[s] that voters are fully informed’ about the person or group who is speaking.” Citizens United, 558 U.S. at 368 (quoting Buckley 424 U.S. at 76). “‘Identification of the source of advertising’” through disclosure requirements permits people “‘to evaluate the arguments to which they are being subjected.’” Id.  (quoting First Nat’l Bank v. Bellotti, 435 U.S. 765, 792 n.32 (1978)). Indeed, this interest has only grown in importance as a justification for election-related disclosures as the Internet has made “disclosure … effective to a degree not possible at the time Buckley … was decided.” McCutcheon, 572 U.S. at 224 (plurality). . . .

Second, “disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.” Buckley, 424 U.S. at 67. Disclosure arms the public “with information about a candidate’s most generous supporters” and assists the public in “detect[ing] any post-election special favors that may be given in return.” Id. And third, disclosure requirements “are an essential means of gathering the data necessary to detect violations of … contribution limitations.” Id. at 67-68.

The brief urged the Court not to re-examine these campaign finance principles in the context of this case:

This case provides no occasion for reconsidering any aspect of the Court’s precedent regarding election-related disclosure laws. As Petitioners acknowledge, the requirement at issue here has nothing to do with elections; the charitable organizations affected by the disclosure requirement at issue in this case are prohibited from engaging in election spending; and none of the interests the Court has relied on to uphold election-related disclosure requirements is implicated.

The brief said that undermining long-established constitutional principles upholding campaign finance disclosure rules would disrupt settled expectations about the constitutionality of further reform efforts, such as the DISCLOSE Act currently pending before Congress as part of H.R. 1, the For the People Act:

Retreating from the Court’s consistent precedent upholding election-related disclosure requirements would also sow confusion for lawmakers. Under current law, Congress and the state legislatures can rely on Buckley and its progeny as clear guideposts to model new and improved disclosure requirements. For example, Congress is now considering the DISCLOSE Act, which would strengthen requirements for corporations, labor unions, trade associations, and advocacy groups to disclose the sources of their campaign-related expenditures on express advocacy, electioneering communications, and ads that promote, support, attack, or oppose the election of a candidate. See For the People Act of 2021, H.R. 1, 117th Cong. § 4111 (2021). . . . The DISCLOSE Act would require disclosure only of donors who gave $10,000 or more in a two-year election cycle to an organization that engages in campaign-related spending—and only if that organization spent more than $10,000 in the aggregate in the election cycle. See For the People Act of 2021, H.R. 1, 117th Cong. § 4111(a)(1). If the organization establishes a segregated bank account from which it makes all of its electioneering expenditures, then only those who have donated $10,000 or more to that account must be disclosed, see id.; and if the donor designates a donation as not to be used for election spending (and the organization agrees), the donation is also not subject to disclosure. See id. The DISCLOSE Act also includes an exemption from disclosure for any donor who may be subject to “serious threats, harassment or reprisals.” See id. § 4111(a)(3)(C).

Under this Court’s settled precedent, these provisions are constitutional. Revisiting or casting doubt upon that jurisprudence now could cause significant uncertainty and make it more difficult for Congress to combat corruption and ensure transparency and integrity in elections.

Read the full amicus brief here.

###