Disclosure Wars: Issues of Policies and Purposes

April 25, 2016
posted by Bob Bauer

Americans for Prosperity has won a decision blocking California’s demand for the disclosure of its donors.  The court didn’t agree with the State that it really needed the information to meet its regulatory responsibilities, and it was satisfied that AFP donors had reason to fear that disclosure would subject them to reprisal and harassment.  The State’s commitment to keep the information confidential did not survive the showing that it had not over time performed very well on that score.

There are concerns and conflicts running throughout this controversy, and others like it, that the court did not expressly acknowledge—but that are now common in cases of this kind.

One is the suspicion of state motive.  California did not require this information until 2014, when the tax-exempt “dark money” moved to the front of the money-in-politics debate.  The State argued that the information was relevant to its oversight of charitable activity, but the court cited trial testimony that for the most part, it had carried out these duties in the past without the use of the donor data.  So the court did not find a sufficiently important state interest.

In the background of this case are questions about the reasons for this shift in position: an undisclosed interest the State might have had in the adoption of a disclosure requirement in politically charged circumstances.  In other words, this is a suspicion that public political controversy as much as policy may move a regulator to demand this kind of information, or at least to take up the possibility of imposing it.  The reasonableness, perhaps even the sincerity, of concerns of this nature are entirely fair questions for debate.  But there are increasingly such concerns and such a debate.

Related to this is the question of whether it matters that a state would endeavor to keep this information off the public record, for its use only.  In another case testing the facial constitutionality of this requirement, the Center for Competitive Politics has argued unsuccessfully that the harm to its donors was complete with the exposure of their identities to state officials.  The court in this as-applied AFP challenge did not squarely take on this question.  But this is a point in contention on both sides of the ideological divide.  Other comments on the California rule and by no means from conservative quarters also reflected this worry about what the government might do with the information.

Courts have trouble bringing bringing these issues to the surface,or contending with them outside the examples of egregious, well-established government harassment on the order of what the Supreme Court found in Socialist Workers ’74 Campaign Committee (Ohio), 459 U.S.87 (1981). The court in AFP resolved the issue on remand from a Ninth Circuit decision that made clear that this would not be a productive route to a resolution. So the court sidestepped the problem by focusing on lax confidentiality practices and the risks of a public release and public reprisal.

The transparency struggles will go on, but some of what drives them—distrust of a state’s motive and the uses it might make of disclosed political relationships—do not show up clearly in the outcomes.

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