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Why 'Cert. Denied’ Can Be the Sweetest Two Words

By declining to hear two cases, the Supreme Court left important disclosure laws intact.

This Supreme Court term is likely to be a block­buster with rulings on Obama­care subsidies, inde­pend­ent redis­trict­ing and same sex marriage. There’s a lot of room for judi­cial mischief or ground break­ing case law. But at this point, I’m thank­ing my lucky stars about two cases the Supreme Court declined to hear on campaign finance disclos­ure. Here’s why those two cases matter.

There’s a dark money prob­lem in Amer­ican polit­ics at both the state and federal level. Polit­ical spend­ers are using opaque nonprofits to hide their polit­ical spend­ing.  And this hiding can be incred­ibly effect­ive. We still do not know the source of hundreds of millions of dollars in federal elec­tion spend­ing. At the state level it can be even more eerie. In many states we don’t know what we don’t know because not all states’ disclos­ure laws capture so called “sham issue ads” that name candid­ates and avoid the magic words “vote for or against.”  (To see how your state ranks on its disclos­ure laws, check out the handy map from the good folks at www.followthemoney.org.)

Oppon­ents of trans­par­ency of money in polit­ics have launched at least three lines of legal attacks on the campaign finance disclos­ures that Amer­ic­ans do have: (1) oppon­ents try to severely cut back on what counts as a PAC, (2) oppon­ents try to limit disclos­ures of who is paying for polit­ical ads and (3) oppon­ents try to carve out a huge harass­ment excep­tion to disclos­ure.

PACs (or Polit­ical Action Commit­tees) are under attack because PACs provide the public with the most trans­par­ency. Typic­ally PACs must account for every dollar in and every dollar out. This type of trans­par­ency is the anti­thesis of “dark money” where the public has no idea where the money came from.

A case from Vermont called Vermont Right to Life Commit­tee, Inc. v. Sorrell involved the first two lines of attack on Vermont’s PAC disclos­ure laws and its regu­la­tion of elec­tion­eer­ing commu­nic­a­tions. The Plaintiffs here had a litany of complaints:

First, VRLC chal­lenges the stat­ute requir­ing that “elec­tion­eer­ing commu­nic­a­tions” identify their spon­sor. Second, VRLC chal­lenges the stat­ute requir­ing that groups engaged in any “mass media activ­ity” must submit certain reports to the Vermont Secret­ary of State and relev­ant candid­ates. Third, VRLC chal­lenges Vermont’s defin­i­tion of “polit­ical commit­tees” and its require­ment that such commit­tees submit campaign finance reports.

The Secord Circuit agreed with Vermont in uphold­ing the state’s regu­la­tion of elec­tion­eer­ing commu­nic­a­tions that “[a]lthough [the plaintiffs’] posi­tion finds some support in pre‐Citizens United decisions, it cannot be squared with Citizens United.” Further­more, the Second Circuit agreed that the lower court “correctly found that Vermont’s PAC defin­i­tion, in the context of disclos­ure require­ments, survives exact­ing scru­tiny.” And in a very inter­est­ing part of the case, the Second Circuit ruled that an inde­pend­ent expendit­ure group that is enmeshed with a group that makes campaign contri­bu­tions can be subject to contri­bu­tion limits. As the court wrote, the lack of inde­pend­ence of the two groups “is clear from the total over­lap of staff and resources, the fluid­ity of funds, and the lack of any inform­a­tional barrier between the entit­ies.” There­fore, the court concluded, “we agree with the district court that Vermont’s contri­bu­tion limits … are permit­ted.”

The Supreme Court denied cert. Janu­ary 12. This means Vermont can keep enfor­cing its campaign disclos­ure laws against polit­ical spend­ers that are trying to obfus­cate. This means that other state elec­tion agen­cies and the FEC can be more rigor­ous in enfor­cing disclos­ure require­ments and it also means that Congress and state legis­latures can follow Vermont’s lead to close dark money loop­holes.

Then there was the case from Cali­for­nia Protect­Mar­riage, which I wrote about at more length here. Protect­Mar­riage was an attempt to broaden who could be covered by the harass­ment exemp­tion to campaign finance disclos­ure. 

This issue isn’t going away anytime soon. The group Citizens United raised it in their case by the same name as did Doe in Doe v. Reed.  Citizens United had argued to the Supreme Court that disclos­ure require­ments would chill dona­tions to their organ­iz­a­tion “by expos­ing donors to retali­ation.” The Supreme Court found the harass­ment excep­tion inap­plic­able to Citizens United as a group. As the Court explained, there had been no cred­ible show­ing of harass­ment: “Citizens United, however, has offered no evid­ence that its members may face similar threats or repris­als.To the contrary, Citizens United has been disclos­ing its donors for years and has iden­ti­fied no instance of harass­ment or retali­ation.”

The Doe plaintiffs asser­ted that they would face harass­ment if the state of Wash­ing­ton released the names of who signed a peti­tion to get a refer­en­dum on the ballot. As the Supreme Court framed the issue in the Doe v. Reed case: “Plaintiffs explain that once on the Inter­net, the peti­tion sign­ers’ names and addresses ‘can be combined with publicly avail­able phone numbers and maps,’ in what will effect­ively become a blue­print for harass­ment and intim­id­a­tion. . . .” The Court declined to find Wash­ing­ton’s disclos­ure law facially invalid, though there was deep disagree­ment among the Justices about how a future group would prove that it has been suffi­ciently harassed to receive the harass­ment exemp­tion to disclos­ure. 

Undaun­ted by Citizens United and Doe, Protect­Mar­riage tried and failed to get a harass­ment exemp­tion to Cali­for­ni­a’s disclos­ure laws.  And on March 2, the Supreme Court denied cert in Protect­Mar­riage thus leav­ing intact lower court rulings in favor of disclos­ure. This is a good thing because a broad harass­ment exemp­tion could very well swal­low the rule of disclos­ure.

And we can live with disclos­ure in our demo­cracy. As Justice Scalia noted in Doe v. Reed:

There are laws against threats and intim­id­a­tion; and harsh criti­cism, short of unlaw­ful action, is a price our people have tradi­tion­ally been will­ing to pay for self-governance. 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 (McIntyre) and even exer­cises the direct demo­cracy of initi­at­ive and refer­en­dum hidden from public scru­tiny and protec­ted from the account­ab­il­ity of criti­cism. This does not resemble the Home of the Brave.

Some­times the sweetest sounds in the Home of the Brave are the words “cert. denied,” espe­cially when what the Supreme Court leaves in place are reas­on­able disclos­ure laws that inform the public who is trying to influ­ence their vote. 

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Photo: Think­stock)