Beware the opinion on a disclosure issue that begins with the fabled Brandeis observation that “sunlight is said to be the best disinfectant.” It is meant to make all that follows relatively simple. Brandeis is powerful authority, and he was not just claiming the insight for his own, but instead assigned it universal standing: disclosure “is said” to have this cleansing effect, and it is the “best” of effects.
The Fifth Circuit propelled itself down this path in a case, Justice v. Hosemann, that the Supreme Court is being asked to take up. 771 F.3d 285 (2014). The question is whether individuals coming together to influence a ballot initiative, but spending little more than $200, can be compelled to register and report as a political committee. Mississippi law includes this requirement and, finding that the plaintiffs had standing to bring a facial challenge, the Fifth Circuit reversed the lower court and upheld the law as a constitutional measure to serve the voters’ “informational interest.”