In the wake of the Supreme Court's Citizens United decision, supporters of campaign finance reform, with the vocal support of the President, have considered additional regulatory measures.  The most prominent legislative proposal is the DISCLOSE Act, which is summarized here.

Title II of the DISCLOSE Act governs disclosure by corporations, unions, and political committees of advertising of most substantial campaign advertising.  Several provisions are most noteworthy.  Donors who give more than $1,000 must be disclosed.  The head of the organization must personally state in the advertisement that s/he "approves the message."  The top funder of an advertisement must state her/his approval, and the top five donors to the organization must be disclosed.  In addition, under Title III, expenditures must be disclosed to shareholders and members.

Debate over such proposals will inevitably raise the question whether their disclosure provisions violate the First Amendment because they are, in the view of some, a substantial burden on free expression and are intended to deter the speech that the Citizens United decision deems constitutionally protected.

In the past, the Supreme Court has indicated that certain disclosure requirements are lawful.  For example, the famous Buckley v. Valeo decision upheld disclosure requirements, while recognizing the possibility that they could be challenged in individual cases.   More recently, Buckley v. American Constitutional Law Foundation upheld a requirement that petition circulators provide identifying information.

But those decisions do not definitively hold that all disclosure requirements are lawful, absent extraordinary circumstances.  So the question of the constitutionality of measures like the DISCLOSE Act is a legitimate one under existing precedent.

In the wake of the oral argument in Doe v. Reed, however, it seems clear to me that the Supreme Court would uphold disclosure provisions like those set forth in the DISCLOSE Act, at least as applied to the expenditures by corporations and unions that were at issue in Citizens United.

I start from the premise that four members of the Court "“ the Citizens United dissenters "“ will easily vote to uphold the disclosure requirements based on their firmly held view that the expenditures and advertisements at issue could be banned outright.  I don't see any reason to believe that any of those Justices would vote to uphold a ban on the expression but vote to invalidate the less burdensome regime of disclosure.

Four votes at the Supreme Court obviously doesn't take you very far.  But the Doe v. Reed argument identified an extremely strong fifth vote:  Justice Scalia.  In that argument, Justice Scalia expressed the strong view that disclosure requirements do not implicate significant First Amendment concerns.  To the concern that disclosure could deter expression, Justice Scalia responded, "[T]he fact is that running a democracy takes a certain amount of civic courage."

Justice Scalia's comments in the Doe argument echo his prior dissent in McIntyre v. Ohio Elections Commission, in which he wrote that a disclosure requirement "forbids the expression of no idea, but merely requires identification of the speaker when the idea is uttered in the electoral context.  It is at the periphery of the First Amendment . . . ."  And Justice Scalia explained that an interest in the integrity of the electoral process would suffice to justify that burden.

Justice Scalia is also a strong adherent to his convictions on such constitutional questions.  Though he absolutely believes in the constitutional right recognized in Citizens United to participate in the elections through the expenditures at issue in that case, by his nature he would find no inconsistency in the equally strong conviction that a disclosure regime is perfectly fine.  He is interested in the principle, not the result.

Posted in Analysis