Stop Dark Money comment on Supreme Court’s rejection of the California disclosure law.

Some commentators concluded that this decision was harmful to political contribution disclosures such as ours.  That is incorrect.

 The California law at issue required disclosure of all donors to over 60,000 non-profits including all mainline charities.  It was considered way too broad, and the promised confidentiality was a joke.  

 The arguments before the Court made clear that this case was NOT about the disclosure of political donors.  The main issue in Chief Justice Roberts’ opinion was whether the appropriate review should be as applied or as written.  The Court opted to review the statute as written which got around the fact that not a single person claimed that the law hurt them. The Court reasoned that because someone might be “chilled” in their exercise of First Amendment rights because of the disclosure requirement, that possibility alone, absent a compelling public purpose for the broad disclosure, was enough to invalidate the law. That reasoning is disturbing because it implies you can justify a remedy without proving there was any harm! 

The language from Doe v Reed and Citizens United that we have been quoting is still the law for political contribution disclosures.  That reasoning was not mentioned in the opinion, it was not distinguished or overruled. Since our statute gives donors the right to opt out of having their donations used for political media and having their names disclosed, it is limited in scope, as this opinion requires.  Equally important, it will not result in someone being disclosed who had no idea their name would be made public. Plus, we have the provision providing a remedy for those who fear harm to themselves and their families. Blanket disclosure requirement will not stand up after this ruling, but our limited scope disclosure with no chance that a person will be surprised at being disclosed should be safe from this decision. 

What Justice Kennedy said in Citizens United is still the law of the land: The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

July 2, 2021