The Privacy-Disclosure Balance and Its Complications

December 18, 2014
posted by Bob Bauer

When skeptics of compelled disclosure warn about the dangers of reprisal and harassment, the answer most often is that the Supreme Court has already addressed this contingency. Groups that can make a showing that they are uniquely vulnerable to harassment can apply for an exception. In this way the conversation drifts quickly to NAACP v. Alabama.

The skeptics, however, remain unpersuaded, and in a recent blog posting, Lyle Denniston points out that changes in politics may account for their discomfort. He refers specifically to the “deep polarization of the parties and the effect that has on coarsening the content of political expression.” He suggests that in this climate, the concern with donor privacy has broadened sufficiently that “privacy in political expression” now figures prominently in disclosure debates and requires a balance that the Supreme Court will be eventually called on to strike.

As the Denniston posting was published, a federal district court in Colorado entered an order in the latest phase of litigation over a state disclosure requirement modeled on the federal “electioneering communication” provision. This case serves as a good example of contemporary disclosure controversies, bringing out key disagreements over how disclosure laws should apply to smaller-scale issues speech.

At the heart of the case is a requirement that organizations spending $1,000 or more on pre-election communications that refer to a candidate must file a report that includes donors to their program who have given over $250. The organization fighting off this reporting insists that its issues speech is insufficiently protected and that any such disclosure requirement must be more narrowly focused. It argues that the $1,000 threshold is too low; also, unlike the federal statute, the reporting provisions apply to print as well as broadcast media. The district court has bowed out on abstention grounds, and a state administrative proceeding continues. Rocky Mountain Gun Owners, et al. v. Scott Gessler, et al., No. 14-cv-02850-REB-KLM (D. Colo. Dec. 16, 2014).

The Campaign Legal Center and other reform organizations, filing an amicus with the District Court, took the position that disclosure requirements may be applied to all manner of “political” and not just “campaign finance” spending. They argue that expenditures for communications directed to the public are within Congress’ authority to regulate in the same way, within the same broad authority, that it compels reporting of the paid lobbying of government officials. The reform amici maintain that “[f]or disclosure purposes, there is no constitutional line between express advocacy and so-called ‘issue advocacy.’” Brief for Campaign Legal Center et al. as Amici Curiae In Support of Defendants, Rocky Mountain Gun Owners, No. 14-cv-02850-REB-KLM (D. Colo. Nov. 25, 2014) at 11.

This line of argument once again leads to the question that has haunted modern campaign finance: do its burdens fall equally on the big and the small alike, on the powerful on the “inside” as much as on the less powerful on the “outside.” CLC and its allies liken the disclosure of paid lobbying–direct contacts with legislators–to reporting requirements imposed on organizations formed by like-minded citizens to advocate their positions by media or mail to the general public. In the reform organizations’ view, these two sources of spending are basically indistinguishable: each should be subject to “political disclosure” requirements that Congress and state legislators have the authority to enact.

The history of campaign finance demonstrates that unless this problem of big versus small, those on the outside versus those on the inside, is absorbed into the body of the law, the courts eventually step in. Massachusetts Citizens For Life v. Federal Election Commission stands out as an example: there the Court twisted doctrine into knots to protect from the FEC a local abortion-rights group and a voter guide funded by bake sales. The estate of Margaret McIntyre benefited from this same judicial impulse in McIntyre v. Ohio Election Commission. And Denniston is likely right that the Supreme Court will have this opportunity again, in a case like the one in Colorado, as the arguments over donor privacy escalate.

The factors that could draw in the Court include the nature of the speech—“political” speech that is not express advocacy—its mode (e.g. print or media), and its scale. An organization of modest size that finances mailings with small donations might have reason to expect a friendly audience for a challenge to expansive public disclosure.

In Colorado, for example, the $1,000 threshold is clearly on the low side; and organizations required to report must disclose not just the identity of donors of more than $250, but also their names and addresses. The sweep of a disclosure rule constructed in this way could be hard for a court to take.

By rejecting relief along these lines and insisting on expansive “political disclosure,” the reform community is inviting the sort of fight with the courts that it will likely lose. And when it loses, we have seen, it may not lose narrowly. Experience tells us that the doctrines emerging from these conflicts often dispense with the finer distinctions. The outcome of these disclosure fights could be one that extends protection to the big and small, to the insider as well as outsider, putting Mrs. McIntyre and the bake sale organizers in the same company with the high political financiers.

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