What’s most significant in this decision by Judge Tymkovich for a unanimous 3-judge panel is the determination that Bonta makes it harder to sustain campaign finance disclosure laws (as I said in a NYT oped the day after the Supreme Court issued the decision was a likely consequence of Bonta—and to which I got a lot of pushback).

Amicus highlights Delaware Strong Families v. Attorney General of Delaware, 793 F.3d 304 (3d Cir. 2015), as an example of a disclosure statute that survived exacting scrutiny despite the absence of a Gaspee Project-style opt-out. The Delaware disclosure law required advocacy shops that spent over $500 issuing an electioneering communication to disclose the names of donors who contributed over $100 during the election cycle. That law surely forced advocacy groups to bear the burden of overdisclosing donors despite a disconnect with an informational interest.
Delaware Strong Families is a relic of pre-Bonta exacting scrutiny. The Third Circuit understood exacting scrutiny to require only that “the strength of the governmental interest . . . reflect[ed] the seriousness of the actual burden on First Amendment rights.” Doe, 561 U.S. at 196 (internal quotation marks omitted). After Bonta, a court would surely take a closer look at the “extent to which the burdens are unnecessary.” 141 S. Ct. at 2385. The Delaware Strong Families Court admittedly invoked the word “tailored” on several occasions, but it seemed to use the word interchangeably with the “substantial relation” language, and nowhere did it require the government to “demonstrate its need” for the disclosure regime’s burden “in light of any less intrusive alternatives.” Id. at 2386.