Today the Supreme Court affirmed (that is, agreed the lower court was correct, although not necessarily on the reasoning) in Independence Institute v. FEC, a major case which could have called into question the effectiveness of federal and state disclosure laws.
There was a full court press to hear this case—check out the large number of amicus briefs supporting review. And, for reasons I explain here, there was an extra good chance the Court would have taken this case because of its procedural posture: this came on appeal (not a cert petition) directly from a three-judge district court, and a decision not to hear the case means that the lower court got the right result.
Twice (in McConnell v. FEC and Citizens United), the Supreme Court by lopsided majorities held that it is permissible to require disclosure of money spent on political speech, even if that speech does not contain magic words of advocacy, like vote for or vote against. Independence Institute was an attempt to get the Court to take a third bite at this apple, and to carve an exception for “genuine issue advocacy” which names candidates and could affect elections. The result of a reversal here would have been to create a kind of constitutional exemption to disclosure which would be easy for outside groups to get around—kind of what we are seeing on the federal level, but on the state and local level too.
The concern expressed in some of the briefs supporting review complained that disclosure will chill participation in non-profit groups. I’ve argued in the past that chilling effects here are greatly exaggerated, and there already is an exemption to disclosure for groups that can show they face a genuine threat of harassment. And non-profits that are worried about this and disclosure of their membership etc. can set up a separate fund to fund these ads, letting donors to this fund know their identities will be disclosed.
While the Court has been steadily whittling away and striking down campaign laws limiting contributions and spending in elections, it has held the line on the constitutionality of disclosure laws. And that’s a good thing. A small, but real, victory for those who support reasonable campaign finance regulation.
And, somewhat surprisingly, no written dissent by Justice Thomas (or Justice Alito), who has expressed the most resistance to the constitutionality of campaign finance disclosure laws.
[This post has been updated.]