Disclosure and a Few Hundred Dollars of Spin

January 15, 2016
posted by Bob Bauer

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.”

The Court began with Brandeis and then moved quickly to suggest that others states have imposed even more onerous registration requirements for issues speech, set at still lower spending levels.  This seems to be a monumental non sequitur.  That a number of states have adopted constitutionally questionable laws does not settle, in their favor, the question of constitutionality, or logically make the case for Mississippi’s slightly more liberalized version.

But there is also the suggestion that in the Internet Age, the voters’ informational interest requires disclosure deep down, to the most modest spending of a few hundred dollars.  The Fifth Circuit cited in full this passage from National Organization for Women v. McKee:

In an age characterized by the rapid multiplication of media outlets and the rise of internet reporting, the “marketplace of ideas” has become flooded with a profusion of information and political messages. Citizens rely ever more on a message’s source as a proxy for reliability and a barometer of political spin.

649 F.3d 34, 57 (1st Cir.2011).

One might think, first, that a marketplace this lively, expanding inexpensive or no-cost access to more speakers than ever more, would offer a “profusion” of checks on the reliability—on the quality of reasoning and the factual basis–of messages.  But in the Court’s view, citizens are lost in this sea of possibilities, unable to make their way without assistance around the “spin.” The “small speaker,” like the big spender, can contribute to this “spin”—and even if the power to spin is beyond the capacities of any one small speaker, the Court found a constitutionally sustainable interest in the sources of small-scale speech “in the aggregate.” Justice, 771 F.3d at 300, citing Worley v. Fla. Sec’y of State, 717 F. 3d 1238, 1251 11th Cir. 2013). It is unclear how an informational interest in lower-level spending is served in the “aggregate.”

The Court then returned to the point that, whatever the burdens of these requirements, other states require more.  The Mississippi registration form is one page only (“only eight questions on a single page) and it does not have to be filed before money is spent. Justice, 771 F. 3d at 299.  Once properly constituted, the political committee files monthly reports until it goes out of business.  Of course, there are penalties, including potential criminal penalties, for failure to comply with these rules, but all in all, when measured against the quality of “disinfectant,” the Court concluded that the state has satisfied the constitutional test.

This analysis does no address concerns about the full costs of a disclosure regime that does not distinguish the big from the little speaker, especially in a case that involves commentary on issues (in this case, a ballot issue).  The distinction does not become irrelevant because we now have so many “small” spenders in the Internet Age and so much the potential for spin “in the aggregate.”  To be credible, and to answer fundamental intuitions about the state’s legitimate interests, disclosure laws have to be attentive to scale.  Brandeis’ maxim about disclosure and its disinfecting qualities does not relieve lawmakers, or courts, of this responsibility.

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