If CJ Roberts Has the Opinion in Americans for Prosperity v. Bonta, Will He Pull the Same Switcheroo on Exacting Scrutiny as He Did in McCutcheon?

Some reading the tea leaves believe Chief Justice Roberts has the Court’s opinion in AFP v. Bonta, on donor disclosure. I’m interested in the case because the decision may affect the constitutionality of campaign finance disclosure laws, even though AFP involves disclosure of donors to the government that is not supposed to be shared with the public (but was shared because CA did not do a good job protecting the security of its website).

A key legal issue, in the face of AFP’s claims that the requirement to disclose violates the First Amendment, is the standard of scrutiny to apply to laws requiring disclosure. The doctrinal answer is “exacting scrutiny,” but what exactly that means is the subject to some debate. There are some who believe the Court should apply strict scrutiny to donor disclosure laws, which would render most such laws unconstitutional.

The situation here reminds me of what happened in the 2014 McCutcheon v. FEC case, involving the constitutionality of aggregate contribution limits. Those too have been subject to “exacting scrutiny,” though its application in the contributions context has been different than in the disclosure context.

Here at Slate is how I described what Roberts did with the “exacting scrutiny” issue when he wrote McCutcheon:

But this is nevertheless a subtly awful decision. It is true that Roberts sidestepped today the question of whether to apply “strict scrutiny” of contribution limits in another case; he did not need to take that dramatic (and high-profile) step to do a whole lot of damage to campaign finance law. Instead, he did three things which now set the course toward even more campaign finance challenges under the First Amendment and more deregulation…..

Second, Roberts makes that laxer level of scrutiny applicable to review of contribution limits somewhat stricter. Buckley established that contribution limits get judged under something called “exacting scrutiny,” which in practice in the past has led the court to uphold a large number of contribution limits based upon very little evidence of corruption. Today Roberts tightens that standard, requiring more evidence (to be judged against the new strict “corruption” definition). He had no need, then, to adopt “strict scrutiny” for contribution limits. Why write an opinion that dramatically adopts strict scrutiny when one can accomplish nearly the same thing by quietly changing the meaning of the “exacting scrutiny,” which applies to contribution limits?

Watch for this possibility tomorrow. There could be some subtle awfulness coming here too.

Share this: