Letter to Cal. Senate Elections Comm. Urging Support for California DISCLOSE Act

The Brennan Center for Justice submitted a letter to a California Senate Committee defending the constitutionality of the state's DISCLOSE Act and urging support for the legislation.

April 24, 2013

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Sen. Lou Correa, Chair
Sen. Joel Anderson, Vice Chair
Standing Committee on Elections and Constitutional Amendments
California Senate
State Capitol, Room 2203
Sacramento, CA 95814

                        Re:       The California DISCLOSE Act, SB 52

Dear Senators Correa and Anderson:

On behalf of the Brennan Center for Justice at N.Y.U. School of Law, we write to convey our support for the California DISCLOSE Act, SB 52, and to emphasize that it stands on unquestionably firm constitutional ground. We commend Senators Mark Leno and Jerry Hill for their leadership, and urge support for their effort to increase transparency and accountability in California elections.

Citizens United unambiguously affirmed the constitutionality of disclosure requirements of the kind proposed in SB 52.

In two recent cases, the United States Supreme Court has upheld disclosure requirements similar to those proposed in SB 52. In Citizens United v. FEC, the Court struck down a longstanding prohibition on corporate and union spending in federal elections by a 5-4 vote — but, in a near-unanimous, 8-1 vote, the Court strongly affirmed the constitutionality of the federal Bipartisan Campaign Reform Act’s (BCRA) disclosure requirements. “[D]isclosure,” Justice Kennedy wrote, “is a less restrictive alternative” to other campaign finance regulations and “provides shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”[1] He added that “Disclaimer and disclosure requirements . . . impose no ceiling on campaign-related activities and do not prevent anyone from speaking.”[2] Indeed, it cannot be emphasized enough that SB 52 creates only greater transparency; it is in no way a ban on speech.

Shortly after Citizens United, the Supreme Court again embraced disclosure in Doe v. Reed. In that case, the Court upheld a Washington State law permitting the disclosure of signers of referendum petitions.[3] The Court made clear that the law in question not only protects the integrity of the electoral process, but also “promotes transparency and accountability in the electoral process to an extent other measures cannot.”[4] Justice Scalia in a concurring opinion observed that disclosure requires people to stand behind their political speech and thus “fosters civic courage, without which democracy is doomed.”[5]

In light of this clear guidance, any suggestion that SB 52 runs afoul of the First Amendment is misguided. Reporting the names of individuals who contribute thousands of dollars to support political spending furthers the important government interests of combating corruption and the appearance of corruption, as well as providing voters with important information to help make educated decisions at the ballot box.

Arguments that SB 52 is unconstitutional based on other court decisions are wrong.

Opponents of SB 52 invoke Talley v. California, McIntyre v. Ohio Elections Comm’n, and ACLU v. Heller in an attempt to raise questions about the bills constitutionality, but their arguments are fundamentally misguided.  Citizens United and Doe v. Reed, as the U.S. Supreme Court’s most recent statements on disclosure, are the law of the land.

The statutes discussed in the cases relied upon by opponents are easily distinguishable from the proposed legislation. Talley involved the distribution of handbills by a single individual and did not involve any large expenditure of money.[6] Similarly, McIntyre involved the distribution of homemade leaflets at a public meeting by a woman and her son.[7] The high disclosure thresholds in SB 52 are designed purposely to exempt small spenders like Mr. Talley and Ms. McIntyre from disclosure requirements. Instead, they apply to large spenders whose activity carries particular risk of corrupting influence and are of particular interest to voters trying to understand the bases of support for candidates and ballot measures. The publications discussed in Talley and McIntyre would not be regulated by the disclosure regime proposed in SB 52.

As to Heller,[8] not only is the case older than Citizens United, it is also a decision by the Ninth Circuit Court of Appeals rather than the U.S. Supreme Court.  It is a matter of black letter law that opinions issued by the lower courts must yield in the face of a contradictory decision by the Supreme Court. To the extent Heller conflicts with Citizens United, it cannot be relied upon.

* * * * * * *

The California DISCLOSE Act, SB 52, stands on a firm constitutional bedrock and is worthy of support.

 

Sincerely,

 

J. Adam Skaggs
Senior Counsel

David Earley
Counsel

 

Cc:      Senator Loni Hancock

            Senator Jerry Hill

            Senator Mark Leno  

            Senator Alex Padilla

            Senator Leland Y. Yee




[1] Citizens United v. FEC, 130 S. Ct. 876, 915-16 (2010).

[2] Id. at 914 (internal citations and quotation marks omitted). 

[3] Doe v. Reed, 130 S. Ct. 2811, 2837 (2010)

[4] Id. at 2820.

[5] Id. at 2837 (Scalia, J., concurring).

[6] Talley v. California, 362 U.S. 60, 60 (1960).

[7] McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 337 (1995).

[8] ACLU v. Heller, 378 F.3d 979 (9th Cir. 2004).