Disclosure Wars

November 16, 2015
posted by Bob Bauer

Sometimes those who disagree about campaign finance are almost deliberately talking past each other, dreading any concessions because, they think, to give an inch is to surrender a mile.  This seems increasingly the case in arguments about disclosure and a good example are the opposing reactions to the Supreme Court’s recent decision to decline review of California’s 501(c)(3) disclosure requirements upheld by the Ninth Circuit in Center for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015).

Here is one fundamental difference: the belief on the part of decision proponents that it was a victory for campaign finance disclosure, and reply by critics that it had nothing to do with campaign finance at all.  And indeed, in technical terms, the case is not a campaign finance case – – it does not involve electoral activities, which 501(c)(3)’s may not conduct, and the information that the government is asking for is not in theory to be made available to the general public but only for the use of authorities for law enforcement.

To those who favor the State of California’s position, however, its significance goes well beyond its holding viewed in the most narrow terms.  If the case did not concern campaign finance, they seem to be saying, it was close enough: it involved a privately funded nonprofit advocacy organization, and a court willing to invalidate those disclosure rules might be tempted to export this critical attitude to the sphere of campaign finance.  There is a fear at work here that if a crack opens in disclosure requirements anywhere, they could expand to swallow up the campaign finance rules. On this theory, the court should be favorable to disclosure of political activity all kinds, to avoid damage down the line to rules of one particular kind.

The discussion of the parameters of compelled disclosure has become, in this sense, politicized.  Anxieties about the collapse of the campaign finance laws are gathering around all roughly similar disclosure requirements as a sort of last stand.  Rick Hasen has written that “campaign finance disclosure laws are under attack” and that much of the criticism has been “offered disingenuously with the intention to create a fully deregulated campaign finance system.” Richard L. Hasen, Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 J.L.& Pol. 557, 559 (2012).  In his view, because the questioning of disclosure requirements is in many cases “pretextual”, id. at 559, this Court must be closely watched, because if it appears to move away from transparency in any case involving public advocacy, the end could be near. The Court could be poised to water down the disclosure commitment expressed in Citizens United.

Meanwhile, the important doctrinal question of how to measure the costs as well as the benefits of compelled disclosure is passing out of focus.  There is general acceptance that harassment is a cognizable injury threatened by disclosure of a nonprofit association’s members and donors, and that in Buckley v. Valeo, 424 U.S, 1 (1976) and Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982), the Supreme Court provided a remedy through exemptions that can be granted in particular cases to endangered speakers.  But on the question of how this exemption should be structured or operate, the differences are wide.

The proponents of expansive regulation argue that the claims of harassment are rarely matched by evidence. Hasen has written that outside the struggle over gay marriage, “there is virtually no record of harassment of donors,” and that even within that struggle, “much” of it is “weak.” Id.  In a bit of irony, disclosure advocates in the reform community often cite Justice Scalia in Doe v. Reed for the proposition that some risk of harassment is bearable if we are to insist on an appropriate measure of “civic courage.” 561 U.S. 186, 228 (Scalia, J., concurring).

In these exchanges, the harassment most often pictured or projected originates in private acts, and the defense is accomplished through an exercise of public protective power. Not as much is said about the risk that the government itself might be a source of concern: that it may not be seen to function as the impartial keeper of the secrets.

This aspect of the theory of “harassment” has deep roots in the development of the doctrine, tracing back to the Socialist Workers case.  That party successfully proved private harassment, but most notoriously government harassment, conducted by the FBI’s COINTELPRO operation.  It viewed the official misconduct as “the most important fact in the case.”  Brian J. Levy, Who Wants to Know and Why?: the Supreme Court’s Purposivist Test for Exemptions from Association Membership Disclosure Rules, 87 N.Y.U Law 473, 491 (2012).  Yet somehow, over time, the interest in protecting sensitive membership or donor information from state acquisition and potential misuse has faded behind a more concentrated focus on private harassment that the state is expected to remedy.

The CCP pressed the point before the courts below, and its Petition to the Supreme Court, that the State should have to articulate clearly and concretely its need for the information and then show that it was narrowly tailoring the rules to that interest. It objected to the Ninth Circuit’s use of a rational basis test and it contested what it deemed the absence of any tailoring. That court, it argued, was placing the burden for justifying disclosure on the plaintiff, not on the government.

Whatever the merits of the resolution of the Harris case—and no view of the right outcome is taken here or necessary at all to the larger point—the attention to how courts should review the requirement that an association make broad disclosures for government use and not for public dissemination, for a range of advocacy and not only electoral activity, seems well justified. The showing of “harassment” depends on a demonstration of “reasonable probability”, and this may be a tall order when the government acquires the information for its own purposes and the uses subsequently made of it will not be readily known or accessible.

One does not have to be paranoid about these things, but only fair-minded. Those on the “right” should not overstate the case; those on “left” should not be overly dismissive. There is after all a history to inform this set of concerns—Watergate is an outstanding example—and it is one to which progressives now very much attuned to data privacy and government collection practices should be particularly sensitive.

The Court in Citizens United rightly stood by the Congress’ authority to compel reasonable disclosure of campaign finance.  The limits of this authority, and in particular how far it extends to other advocacy activities, presents difficult questions.  Deep divisions over disclosure will persist unless this difficulty is acknowledged and the discussion to follow does not founder on the fear that to give an inch is to give up a mile.

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