The Supreme Court will soon decide whether to take up a major case about disclosure and this has received little attention—far less than it should. At issue is the clarification of how far government authority extends in requiring the disclosure of the financing of “issues speech”–speech or just information about candidates’ positions that does not involve engaging in advocacy of their election or defeat. There are reasons why the case might have been overlooked: it involves a small organization in a small state, and the activity concerns state and local, not federal (much less presidential), candidates. Perhaps, also, because it is “just” about disclosure, this case might be supposed to pose little danger of harm to anyone’s rights or legitimate expectations.

This is serious business. As the states move along with their own reform programs, and as litigation proceeds under different standards applied by different circuits and diminishing consistency in the treatment of federal and state or local-level enactment, disclosure doctrine is losing its coherence, and key constitutional distinctions once taken for granted are being rapidly eroded. One disturbing result: the “big” and sophisticated spenders at the federal level are more protected than the “little guy” at the levels below.

In the case in question, Delaware Strong Families v. Denn, the speech took the form of a Voter Guide that reproduced positions supplied by the candidates themselves, or in the case of candidates who declined to cooperate, their stated positions drawn from the public record. DSF is a 501(c)(3) barred from endorsing candidates, unlike an affiliated (c)(4) that may and does. There is no allegation that the (c)(3) is evading the prohibition on partisan speech. Delaware has enacted a disclosure law that applies to this Guide, requiring the disclosure of DSF donors who have given over $100 over a four- year period. The law covers all speech referring to candidates, whether by broadcast, mail or Internet, within 30 days of a primary election or 60 days of a general. It is triggered by the expenditure of more than $500 without regard to the size of the audience.

DSF sued and won in district court, then suffered a reversal of fortune in the Third Circuit Court of Appeals. The short opinion issued by the Third Circuit is striking in its breadth and, one might say, daring. It looks past the critical Buckley distinction between express and issue advocacy, apparently in the belief that, on this point, the 1976 decision has been overtaken by the decisions in McConnell and Citizens United, especially the latter, which it reads to allow for the regulation of any issues speech that could influence voter choice. So, on the assumption that its position is well supported by recent developments in the constitutional law, the Third Circuit embraced this view:

By selecting issues on which to focus, a voter guide that mentions candidates by name and is distributed close to an election is, at a minimum, issue advocacy. Thus, the disclosure requirements can properly apply to DSF’s Voter Guide…”

793 F.3d 304, 309 (July 16, 2015)

The State of Delaware has joined with reform organizations to defend this proposition. It concedes that the statute is expansive in reach, sweeping in smaller organizations and small-scale spending. But it justifies aggressive disclosure policy in a state the size of Delaware, where a little spending goes a long way. It contends that states have the right to decide how much spending is effective in the local conditions in which it occurs, taking in account the size of the electorate and other factors, and to apply disclosure requirements accordingly.   And the states can conclude that issues speech—in this case, the duplication of material the candidates supply –triggers mandatory disclosure of small donors in the interests of an informed electorate.

It is useful to step back and see how this case has been built by critical moves in the treatment of content, context, and scale. The content is nonpartisan by operation of federal tax law, consisting of the reproduction of the candidate’s words without endorsement or commentary, and yet the State converts it to partisan speech, because it could affect how someone so informed might vote. The context, of course, is key: the speech occurs prior to the election, the theory being that all such speech about candidates, communicated by virtually any and all means, must be campaign speech a state may regulate. And there is no adjustment for scale: the multimillion dollar broadcast advertising campaign and the printed handbill distributed in the neighborhood are, for these regulatory purposes, the same.

What is that drives the defense of statutes like Delaware’s, in its application to DSF and its voter guide? In part, and visible in state reform programs, there is a very specific belief that all electorally significant speech, not just that arguing for or against specific candidates, should be subject to disclosure requirements. Also at work in such judgments is the conviction that issues speech in election season is never really nonpartisan– that it is motivated by the wish to persuade in the guise of informing, by a plan to sneak around the campaign laws. So the distinction between express and issues advocacy is taken to be bogus and Buckley’s recognition of it has come under attack.

Years ago, in Massachusetts Citizens for Life (MSFL), the Supreme Court went out of its way to protect a voter guide produced by a small organization. In that case, unlike this one, the Court found that the guide did constitute express candidate advocacy: the Guide rated the candidates’ positions. The Court then proceed to carve out an exception for small ideologically focused corporations to make independent expenditures in the world before Citizens United delivered that right to large and small alike.

DSF now seeks refuge from regulation where there is no express advocacy at issue. It is concerned, not without reason, that in this day and age, the exposure of small donors is consequential, subjecting them to a costly infringement of their privacy rights. But it is worried, too, on its own behalf, as a small organization that, unlike other, larger ones, it might not easily bear the loss of potential contributors who decline to give because they do not wish to share their names and addresses with the general public.

Soon we will find out whether the Court will take this case and conclude, as it did in MCFL, that while it may be that only a small number of organizations would be affected by its ruling, “that prospect…does not diminish the significance of the rights at stake.” 479 U.S. 238, 264 (1986). In the meantime, supporters of reform might ask whether this is a prudent stand to take on the government’s authority to compel disclosure. The risk they run is one familiar to them from the experience with aspects of BCRA and the backlash that followed: they will take their cause farther than it need go, fearful always of giving in to “circumvention,” and they provoke resistance that, as it mounts, costs much more than they ever hoped to gain.

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