Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood of Undisclosed Money in Elections?

The Supreme Court has long upheld the constitutionality of requiring disclosure of the money behind elections, lobbying, and many political activities. In the 1976 Buckley v. Valeo case, the Court held that such disclosure, while implicating First Amendment rights, served three important government interests: deterring corruption, providing voters with valuable information, and helping to enforce other laws (such as the ban on foreign money in US elections).

Although the Court has repeatedly upheld disclosure laws against First Amendment challenge, Justice Thomas has taken the position that there is a constitutional right to anonymity, and Justice Alito has been moving in that direction (as in his Doe v. Reed concurrence), suggesting that disclosure laws can chill activity. Justice Scalia, an originalist like Justice Thomas, disagreed that the original meaning of the First Amendment required anonymity, famously writing in Doe:

For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

 There has been a continued push by campaign deregulationists to get the Court to water down corruption on First Amendment grounds—not to throw it out entirely as to campaigns, but to allow outside groups to mask their donors. (It is already now pretty easy to do this under federal law, but that’s a political, not legal, problem. Congress needs to rewrite the laws to make disclosure work).
So where would a Justice Gorsuch be on this? Would he be with a majority that has upheld disclosure, or would he be with J. Thomas and, likely Justice Alito, believing that the “chill” of compelled disclosure requires constitutional anonymity?
If you watch the exchange with Senator Whitehouse from yesterday’s hearing, I believe there is a good chance Gorsuch will be in the Thomas/Alito camp. He spoke of the “chill” and did not really give any reason why disclosure might be valuable. He never suggested, for example, that the public might have an interest in knowing who is spending millions to support his campaign. From Slate:

And because of our lax disclosure laws, it is often very difficult to determine who is spending money and how. For example, Whitehouse said, someone is spending $10 million to get Gorsuch confirmed.

“Hypothetically,” he continued, it could be “your friend Mr. Anschutz. We don’t know because it is dark money.” He asked Gorsuch why someone thought it was worth $10 million to get him confirmed.

“You’d have to ask them,” a frustrated Gorsuch responded.

“I can’t,” Whitehouse said, “because I don’t know who they are. It’s just a front group.”

What does it matter, if he’s only a second or third vote? Because we can look to the future, 10 years from now, and there could well be more Gorsuch’s on the Court.

It makes me worried.

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