Beware the opinion on a disclosure issue that begins with the fabled Brandeis observation that “sunlight is said to be the best disinfectant.”  It is meant to make all that follows relatively simple. Brandeis is powerful authority, and he was not just claiming the insight for his own, but instead assigned it universal standing: disclosure “is said” to have this cleansing effect, and it is the “best” of effects.

The Fifth Circuit propelled itself down this path in a case, Justice v. Hosemann, that the Supreme Court is being asked to take up. 771 F.3d 285 (2014).  The question is whether individuals coming together to influence a ballot initiative, but spending little more than $200, can be compelled to register and report as a political committee.  Mississippi law includes this requirement and, finding that the plaintiffs had standing to bring a facial challenge, the Fifth Circuit reversed the lower court and upheld the law as a constitutional measure to serve the voters’ “informational interest.”

The Court began with Brandeis and then moved quickly to suggest that others states have imposed even more onerous registration requirements for issues speech, set at still lower spending levels.  This seems to be a monumental non sequitur.  That a number of states have adopted constitutionally questionable laws does not settle, in their favor, the question of constitutionality, or logically make the case for Mississippi’s slightly more liberalized version.

But there is also the suggestion that in the Internet Age, the voters’ informational interest requires disclosure deep down, to the most modest spending of a few hundred dollars.  The Fifth Circuit cited in full this passage from National Organization for Women v. McKee:

In an age characterized by the rapid multiplication of media outlets and the rise of internet reporting, the “marketplace of ideas” has become flooded with a profusion of information and political messages. Citizens rely ever more on a message's source as a proxy for reliability and a barometer of political spin.

Professor Michael Morley looks to campaign finance jurisprudence as a guide to what the Supreme Court might do in the Evenwel person-one vote case. He argues that the Court has spoken decisively to the question of whether of certain ineligible voters--foreign nationals—have a right to participate in democratic self-government.  In Bluman v. Federal Election Commission, a three-judge court decision that the Justices summarily affirmed, the court held that foreign nationals may be barred from spending money, through contributions or independent expenditures, to influence elections.  800 F. Supp. 2d 281 (2011).  It follows from that, Professor Morley concludes, that foreign nationals need not be included in the population count on which state legislative apportionment is based.

Morley's use of campaign finance law is intriguing, and he finds this perspective missing from all the briefs filed with the Court in Evenwel.  But he did miss one, the Democratic National Committee's, which explicitly questions how US citizens in eligible to vote could be excluded from apportionment arithmetic – – that is, read out of the formally represented political community – – while enjoying a constitutional right to contribute to the same candidates who are free to reject them as constituents. (Note: I am on the brief, with other Perkins colleagues).  This is the case of minor children, 17 years and younger.  In McCain-Feingold, Congress moved to prohibit minors from making contributions at all, only to be blocked by the Court in McConnell.  Now minors remain free to contribute as a constitutional right, provided that the contribution is made knowingly and with their own money. Should the Court conclude that states may disregard minor children for apportionment purposes, it will have drawn the unappetizing picture of a representative democracy in which these young citizens receive representation only for purchase.

Morley agrees that this is an untenable result, and he would locate the line there, at US citizenship, and let Bluman do the work of keeping out foreign nationals (other than lawful permanent residents).  The next question is whether campaign finance jurisprudence translates all that neatly, and as Morley presents it, into the apportionment context.

The reform debate about the political parties is getting stuck on the question of whether, or to what extent, deregulation will improve the tone and ideological cast of national politics.  Some have argued that relieving parties of this or that restriction will alleviate pressures toward polarization and perhaps promote more centrist, moderate politics, in large measure by giving party leaders more influence.  There is some evidence for this, but it is naturally being disputed in a fight between the “purists” who resists deregulation and the “pragmatists” who favor it, and neither side to this debate is likely to score a decisive victory.  So if there can be no clear outcome, there is every reason to hope that not too much is riding on one.

When one day it has more or less run its course, the scholarship will likely show the party leaders with more money at their disposal can use it for better and for worse.  In some cases they will have the will and the means to check the extremes and expand their capacity to negotiate with opponents and move productive legislation. In others, this will not be the case.  Which of these alternative scenarios comes to pass in any state, in any time, will depend on a range of factors, including differences in states and regions and their politics, differences between the parties, the complexities of what is sometimes called the "issue environment,” and other factors.  As Lee Drutman has noted, “polarization is a function of many, many things,” and campaign finance may be only one such thing.

Before all these questions is another one: the difficulty of pinning down what one means by centrist or moderate politics, or even by a civil tone (notwithstanding some contemporary, notable examples of grotesque excess).  And another question: whether the moderate position is in all circumstances the most desirable one, if the policy described as “moderate” is just a product of splitting the difference.  The policies born of getting something done just for its own sake are not always distinguished by their effectiveness.

It is a better bet – – and a bet it is – that some of the time, empowered party leadership with stronger parties behind them can better perform their jobs. Right now they compete for their political influence with candidates who can build their own fundraising bases, and with outside groups (some of which, like Super PACs and (c) organizations, can be indistinguishable from the rest of a candidate’s, well, “support network.”).  To put parties at a disadvantage in this transformed political battlefield should require sound, well-supported policy justification.  Four years now, the justification has fallen entirely on the parties’ supposed role in fomenting corruption, the result of their (once) unique intimacy with candidates.

Sometimes those who disagree about campaign finance are almost deliberately talking past each other, dreading any concessions because, they think, to give an inch is to surrender a mile.  This seems increasingly the case in arguments about disclosure and a good example are the opposing reactions to the Supreme Court's recent decision to decline review of California's 501(c)(3) disclosure requirements upheld by the Ninth Circuit in Center for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015).

Here is one fundamental difference: the belief on the part of decision proponents that it was a victory for campaign finance disclosure, and reply by critics that it had nothing to do with campaign finance at all.  And indeed, in technical terms, the case is not a campaign finance case – – it does not involve electoral activities, which 501(c)(3)'s may not conduct, and the information that the government is asking for is not in theory to be made available to the general public but only for the use of authorities for law enforcement.

To those who favor the State of California’s position, however, its significance goes well beyond its holding viewed in the most narrow terms.  If the case did not concern campaign finance, they seem to be saying, it was close enough: it involved a privately funded nonprofit advocacy organization, and a court willing to invalidate those disclosure rules might be tempted to export this critical attitude to the sphere of campaign finance.  There is a fear at work here that if a crack opens in disclosure requirements anywhere, they could expand to swallow up the campaign finance rules. On this theory, the court should be favorable to disclosure of political activity all kinds, to avoid damage down the line to rules of one particular kind.

The discussion of the parameters of compelled disclosure has become, in this sense, politicized.  Anxieties about the collapse of the campaign finance laws are gathering around all roughly similar disclosure requirements as a sort of last stand.  Rick Hasen has written that "campaign finance disclosure laws are under attack" and that much of the criticism has been "offered disingenuously with the intention to create a fully deregulated campaign finance system." Richard L. Hasen, Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 J.L.& Pol. 557, 559 (2012).  In his view, because the questioning of disclosure requirements is in many cases "pretextual”, id. at 559, this Court must be closely watched, because if it appears to move away from transparency in any case involving public advocacy, the end could be near. The Court could be poised to water down the disclosure commitment expressed in Citizens United.

Meanwhile, the important doctrinal question of how to measure the costs as well as the benefits of compelled disclosure is passing out of focus.  There is general acceptance that harassment is a cognizable injury threatened by disclosure of a nonprofit association's members and donors, and that in Buckley v. Valeo, 424 U.S, 1 (1976) and Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982), the Supreme Court provided a remedy through exemptions that can be granted in particular cases to endangered speakers.  But on the question of how this exemption should be structured or operate, the differences are wide.

Visiting Harvard Law School, Justice Kennedy answered a question about Citizens United by saying "what happens with money in politics is not good."  And he tied certain of these unfortunate effects to that case: the "result is not happy."  Frank Wilkinson of Bloomberg News wondered if the Justice was having “second thoughts” about his campaign finance jurisprudence.

The Justice did not say clearly what about the use of money in politics is not good, or in what particular respects the results of Citizens United are not happy.  Part of the problem, he said, was disclosure, which is too slow.  With faster, Internet-speed reporting, voters could decide whether a candidate receiving certain sources and amounts of money deserve their vote.  This is as far as he would explicitly go, but there were hints of other reservations that he would still have about undoing Citizens United.

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