April 28, 2010

Doe v. Reed: A Sigh of Relief on Campaign Finance Disclosure

I have generally been sounding the alarm about the Roberts Court and election law, on its approach to everything from campaign finance to the Voting Rights Act to election administration issues such as voter identification. There are various explanations for why the Court has moved more quickly in changing some areas of election law compared to others, but I stand by my view that the Roberts Court has, and will continue, to remake election law in ways troubling to progressives.

My latest concern, expressed in this Slate piece, is that the five-member conservative majority was going to use arguments by conservatives about threats of harassment as a basis to water down generally applicable campaign finance disclosure provisions. Having now reviewed the transcript in today's Supreme Court argument in Doe v. Reed, I am now much less worried about disclosure rules being watered down.

As has been widely noted, Justice Scalia strongly rejected any general right to anonymity in the contexts of election-related First Amendment activity, calling for "civic courage" in the face of disagreement over politics and policies. (This is consistent with Justice Scalia's earlier views on the topic.)

In addition to Justice Scalia's rejection of an argument to seriously water down disclosure laws, there was this very encouraging statement at today's argument from Justice Kennedy at page 16 of the transcript:

    JUSTICE KENNEDY: And so Justice Alito's question points out that this would be a very slim basis upon which to rest a holding in your favor.
    And just to go back to the line of questions of the first, the State of California has very complicated referendum and initiative matters. Don't you think it's relevant for the public to know that, say, a public employees union had paid solicitors to put those signatures on the ballot, or that the Chamber of Commerce, the National Association of Manufacturers, had paid solicitors to put this on the ballot?
    Isn't that part of assessing the -- the reasons why this initiative was proposed? And isn't that vital to the voter's -- to the voter in making an informed decision?

This shows that Justice Kennedy accepts the "information" interest for campaign finance disclosure, which is broader than an "anticorruption" interest which would apply only to candidate elections.
With Justices Kennedy, Scalia, and the liberal Justices on board, it looks as though most campaign finance disclosure laws are generally going to be upheld against First Amendment challenge. That is very good news. (I will write more about Justices Alito and Thomas, and the Chief, at another point.)
All of this is not to say that the names of the petition signers will necessarily be disclosed in the Doe case. I agree with Tom Goldstein that the Court is unlikely to order disclosure in this case, at least at this stage. The question whether there are threats of harassment that should allow for an as-applied exemption from disclosure in this case will probably be remanded to the lower courts, where evidence on the issue can be considered in detail. (In the Prop. 8 case, though much was made of it by plaintiffs in the Doe v. Reed case, the trial court judge, at least on his initial look, found insufficient evidence of harassment to justify an exemption from campaign finance disclosure laws.) The real battle in the Court will be over how broadly the Court rejects Jim Bopp's argument for a broad right to exemption of the identity of those signing ballot measure petitions. Justice Scalia, Justice Ginsburg, and others seem likely to want a broad opinion smacking down the Bopp argument. The Chief, right out of the box at today's oral argument, was looking for something narrower and technical: a concise holding (echoing Washington State Grange and Crawford) that though the plaintiffs lose their facial challenge, they should feel free to pursue their separate, as-applied, claim.
I'm rooting for Justice Scalia as the author of the majority opinion in this one. Or Justice Kennedy.

Posted by Rick Hasen at April 28, 2010 08:18 PM