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.

The case brought by the Independence Institute against the “electioneering communication” disclosure requirement enacted by McCain-Feingold could prove to be highly significant.  This is an as-applied challenge; it contests the mandatory reporting of a "pure" issue ad if, within specified days prior to an election, it refers to a public official who is also a candidate for federal office. Some believe that this claim was foreclosed by McConnell v. FEC and Citizens United.  Independence Institute disagrees, arguing that the Court has never held that issue speech loses constitutional protection against disclosure, including donor disclosure, just because it airs during an election season.

What may stand in the way are summary comments the Court has made, most notably in Citizens United, where the Justices suggested that it did not matter to the application of the electioneering communication requirement whether a communication contained the “functional equivalent of express advocacy.”  558 U.S. 310, 369.  One reading is that the Court had no patience with disclosure objections, end of story. Even a "pure" issue ad—even such an ad run with no apparent electioneering interest or motive –is subject to disclosure if it includes a reference to a public official who was a candidate.

Perhaps this is what the Court intended to say, but this interpretation puts considerable weight on general statements and very little or none at all on the line of authority established by Buckley that campaign finance law could not override the distinction in the constitutional law between campaign and issues speech.

The Ninth Circuit yesterday issued a decision on judicial campaign finance, Wolfson v. Concannon, controlled by and very much in the spirit of Williams-Yulee. Arizona may prohibit a judicial candidate from directly soliciting campaign contributions, and also from endorsing nonjudicial candidates and participating in their campaigns.  The Court found the State to have a compelling interest sufficient to cover all the prohibitions: “an interest in preserving public confidence in the integrity of the state’s sitting judges.”  After that, it was smooth sledding, courtesy of Williams-Yulee, and the Court batted away the plaintiff’s claims that the bans were both under-and over-inclusive, and that Arizona could have employed less restrictive means of satisfying its interest.

A concurrence by Judge Berzon adds a note of genuine interest to an otherwise predictable, workmanlike analysis.  She suggests that the prohibition on endorsements of and campaigning for other candidates was more correctly considered in relation to another interest, equally compelling, in the independence of the judiciary.  Williams-Yulee may well control the outcome on the question of personal fundraising, but “the bans on endorsements and campaigning for nonjudicial candidates and causes… are quite different.”  Supporting those bans is an interest in

society’s concern with maintaining both the appearance and the reality of a structurally independent judiciary, engaged in a decision-making process informed by legal, not political or broad, nonlegal policy considerations.

Berzon writes that prohibiting alliances between judicial and other candidates protects against “politicization” of the judiciary.  Her concern is not the risk of bias in particular decisions but instead preserving a “structurally independent judiciary. “

One line of argument in the McDonnell case briefing accepts that supporters might expect some preferential treatment—“procedural access,” like a meeting—but not official influence to carry the supporter’s case on the merits.  This is one way that routine politics would be distinguished from corrupt politics.

Professor Jeffrey Bellin, thoughtfully but also passionately, says that this won’t do, and that routine politics, including rewarding supporters with access, ought to be criminalized.  Getting any preferential consideration for money is quid pro quo corruption.  If the Court will establish and hold this line, Professor Bellin argues, it will reduce the significance of money in politics and “the big money will dry up.”

One question is how the Court would fashion a workable rule along these lines.  Without a “per se rule” barring an elected official from ever scheduling meetings with a contributor, or making similar accommodations, the approach Bellin favors would require scrutinizing the motives, often mixed, of politicians.  A politician might schedule a meeting requested by a contributor because she has given, but also because she has something to say that the elected official would like to hear.  Or the politician might even have something to say to the donor—something she, the politician, would like to have understood by the industry or interests that a donor might represent.  The contributor might also have provided other forms of support that the officeholders might wish to recognize—like help on the campaign trail.  It is difficult to say where the raw politics end and the rotten, corrupt kind begin, and no easier to believe that prosecutors and courts are in the best position to judge the question.

But there are additional problems with this emphasis on money. Supporters who deliver votes, endorsements or favorable media commentary are also banking plenty of goodwill with an elected official, and they will also expect that their calls will be returned and that their requests for meetings will be answered affirmatively.  They are being recognized for their political speech (and other actions that are expressive in character). Why would giving money, within the legal limits of the law, be treated as somehow so different that we would deny these speakers comparable treatment, then subject them to the criminal laws if they get it? In what way is money different?

The Van Hollen decision handed down yesterday, on a disclosure issue, is remarkable on a number of levels, none of which involve the precise issue before the court.  The United States Court Appeals for the District of Columia did narrow the disclosure required in connection with so-called “electioneering communications,” but as a practical matter, the damage done to transparency is probably of middling consequence.  As matters now stand, anyone wanting to spend substantial money to influence elections and keep much of it from detailed public view has a number of options.  The option that the appeals court ratified yesterday is just one, and probably not all that high on the list.

More important is the way the panel moved, to a new plane, the political case that critics of campaign finance reform have been building against disclosure.  The panel gave the Supreme Court a failing grade on its disclosure jurisprudence. It faulted the Justice for failing to weigh seriously the trade-offs between speech and disclosure, and it believes that it has launched them on an “ineluctable collision course.”  It also thinks the Court has compared constitutional apples and oranges. Speech is a right, and transparency is an “extra-constitutional value”: the appeals court panel evidently believes that, in locating the right constitutional balance, the Supreme has overvalued the extra-constitutional value.

The panel also strikes hard at the notion favoring regulation broad enough to block obvious cases of “circumvention”—cheating. On the issue before the Court, the FEC had concluded that a donation to an organization funding “electioneering ads” was reportable only if made for the precise purpose of paying for these communications. The plaintiff Van Hollen objected to the ease with which this rule can be evaded.  A donation can be made with no specific statement about its use; or maybe the trick is done with a “wink and a nod.”  Unless the regulators can implement a more sweeping requirement without attention to stated, demonstrated purpose, the statutes’ purpose can be “frustrated.”  The court is unimpressed: maybe so, it replies, but the likelihood that a rule will be ineffective is not enough to weaken the force of the constitutional concerns provoked by more muscular alternatives.