By John Shen, September 19, 2021

The Supreme Court has struck down a disclosure law, concealing the funding of a powerful political group. They’ve once again ruled in favor of dark money and against our right to know. Knowing who pays who in American politics isn’t merely an issue of transparency. It enables us to see where power is being wielded. Disclosure of donors is key to a healthy, functioning democracy.

Disclosure of donors ruled unconstitutional

In a 6-3 decision on July 1, the Supreme Court struck down a California law that required nonprofits to disclose their donors to the state in the case of a fraud investigation. In Americans for Prosperity Foundation v. Bonta, the Court ruled such disclosure unconstitutional because it violated the First Amendment rights of the nonprofit’s donors, specifically their right to free association.

The Court did not find any reason to require universal disclosure, because when needed, the state can get the information by other means (such as a subpoena).

This decision concerns more than the privacy of donors — it threatens the integrity of our representative government.

Groups such as Koch Industries’ Americans for Prosperity wield tremendous power in our government through the money they provide to politicians. However, that power is amplified because their name is not on the cash in the pockets of politicians. If we don’t know who funds them, we don’t know who they work for.

Broadening the concept of free association

In the 1958 case of NAACP v. Alabama, the Supreme Court recognized free association as a right to gather with others without undue state interference. In that case, NAACP members were systematically harassed and threatened. The attorney general requested the membership list, intending to run the group out of Alabama. In their decision, the Court noted that the privacy of one’s affiliations provided some protection from the systemic violence of the segregated South.

After the ruling in Citizens United, the Americans for Prosperity Foundation (APF) sued when the California Attorney General began enforcing laws that made nonprofits disclose their donors to the state. APF used the same argument as in NAACP v. Alabama that such disclosure would infringe on their right to free association, despite the law never requiring disclosure to the public.

APF is not a broadly popular organization, and had received harassing email and phone calls from the public in California. APF claimed that this harassment violated their right to free association. However, questionable emails and phone calls from individuals in no way equates with the systemic, state-supported violence experienced by civil rights workers in the apartheid South. This is a law enforcement issue, not a constitutional issue. Law enforcement responded to the few genuine threats and unlawful incidents that occurred. The Court ignored that distinction in APF v. Bonta. APF argued that disclosure would result in retaliation for their donors, or worse, reduction in contributions. However, APF faced no credible threat from the state, and again, the California law did not require public disclosure.

The most significant blow to campaign finance reform since Citizens United

Back in that sweeping decision, Supreme Court justices mentioned the importance of transparency to healthy political discourse. They even said legislators should write laws to protect it. The Court’s ruling on APF v. Bonta instead introduced the need for “exacting scrutiny” to determine if the government’s need for disclosure was in balance with the burden on First Amendment rights, basically equating disclosure with an attack on free speech.

Exacting scrutiny will prove a high standard that future cases must meet. The Court disallowed disclosure in APF v. Bonta because a subpoena can secure the information. With this precedent however, many state laws requiring disclosure of donors could become unenforceable.

The ruling in Citizens United actually applied to a specific set of circumstances. However, it was broadened when a subsequent ruling eliminated that specificity. This could happen with APF v. Bonta; the next ruling could broaden its reach to eliminate all disclosure laws.

As the next logical step, the Court could rule that all disclosure is a violation of the First Amendment, not only of donations to nonprofits, but potentially to political campaigns as well.

Wolf-PAC continues to fight

The Supreme Court has again demonstrated that they’re not our friends on the matter of campaign finance reform. We are on our own. We must do this ourselves. You, me, and Wolf-PAC.

For decades, the Supreme Court has chipped away at the foundations of our campaign finance laws. Only a constitutional amendment gives us campaign finance reform that cannot be overruled. Only an amendment can protect laws that would restore power and influence to the people. The American people have been beaten down by a government that doesn’t work for them and a system that doesn’t value them. An amendment would be a desperately needed win.

That has been our goal from day one. Now more than ever, we need your help to continue building a movement strong enough to pass an amendment. To keep us going, become a regular contributor or volunteer your time. Even a one-time donation helps!

Acknowledgements

• Editing by Monica Rodriguez and Brian Martel
• Legal editing by Sam Fieldman
• Graphics by Kauthar Tung