Scalia on Democracy Without Disclosure

Justice Scalia’s legacy on campaign finance is clear. But perhaps less well known is how much he valued transparency in political activity.

February 18, 2016

Justice Scalia’s legacy on campaign finance is clear. He reliably voted with the conservative majority as the Roberts Court expanded opportunities for higher and higher election spending by the few who can afford to spend the most.

But perhaps less well known is how much Scalia valued transparency in political activity. He recognized disclosure of the sources of political spending as a necessary check on the power of money, and he wrote eloquently of everyone’s moral responsibility to stand behind their speech.

Yet Scalia died early in an election cycle that will be flooded with more secret spending than any in history. “Dark money,” or spending by groups that don’t disclose their donors, has increased, reaching more than $300 million in 2012. In competitive races, secret money can rival the amount spent by candidates themselves. Early spending data from the current cycle indicates dark money will greatly outpace 2012.

Scalia understood the dangers of secrecy. When the Court upheld limits on corporate spending in the McCain-Feingold law in 2003 — limits later struck down in 2010’s Citizens United ruling — Scalia dissented in typically blunt fashion. He dismissed lawmakers’ concern that corporations could distort elections with their concentrated wealth because he believed in the power of the electorate to hold speakers and politicians accountable: “The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source.”

Clearly, Scalia’s faith in political accountability as the way to address money in politics only makes sense “so long as adequate campaign-expenditure disclosure rules exist.” He feared that too much anonymity in public debate would threaten democracy itself. In a 2010 case about the disclosure of petition signatures, he wrote:

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously . . . hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

The nation is careening into an election in which voters will be bombarded by unprecedented levels of secret spending. Congress and the president have the power to improve disclosure but they have failed to act, leaving the door open for hundreds of millions of dollars to flow through dark money groups. It is likely that Scalia would be disgusted by these secret donors’ lack of courage. And we should all share his concern that the democracy he held so dear may be doomed if voters don’t have the information they need to hold the powerful accountable.