Wednesday, March 22, 2017

Hasen on Gorsuch on dislosure.

Important post by Hasen on Gorsuch and disclosure.

Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood of Undisclosed Money in Elections?

Earlier today I wrote:
I will need to write a future blog post contrasting the unknown Gorsuch views on anonymous campaign speech with Scalia's overt hostility to such speech.

This post is that post, or something similar. Right now this is still an early draft, without hyperlinks to cases.

As I see Justice Thomas' concerns, expressed in cases such as Citizens United, McConell v FEC, McIntyre v Ohio, Buckley v ACLF, the issue is more about disclaimers than disclosure.

In other words, it's about speech more than money.

I'm ok with disclosure, with some reasonable limits. I'm strongly opposed to censorship of political speech via disclaimer regulations. The court sometimes agrees with me.

Under the Buckley v Valeo framework, disclosure usually withstands facial challenges, although it is still subject to as applied challenges in the NAACP v Alalabama ex rel. Patterson  mode; see Socialist Workers 74 Campaign Coommittee.

Sometimes the "reform" faction has used especially onerous disclosure regimes to chill speech the courts would not allow them to ban outright, especially by the Fanny Lou Hamer types, single individuals with limited resourcees who want to be able to participate in the political process.

IJ.org has brought a series of such cases, winning some, losing others. Sometimes, as with the Kelo v New London takings case, they win more by losing than if they'd won, by galvanizing public opinion against stupid government actions.  

I have lost a series of these cases on procedural grounds in Indiana, e.g. Rebecca Majors et al. v Indiana Eleection Comission, Michael Z Williamson v IEC. The issue there was that the Indiana Election Commission was fining people on disclosure grounds who never raised or spent any money; the statute has a $100 threshhold. It'll come up again someday.

So there are outlier cases, but in general disclosure regimes get upheld. There's a legitimate interest by the reform camp to want to know which multibillionaires have bought which candidates. Valeo allows a balancing test instead of strict scrutiny for these cases which are primarily about money. That Valeo test may or may not hold under Gorsuch if directly challenged, which it usually hasn't been. But that's not my main concern.

Justice Thomas' isssue is when the cases deal not just with money, but with speech.

He laid out his theory concurrring in McIntyre v Ohio
McIntyre was a reiteration of Talley v California, a civil rights era case closely linked with NAACP v Ala. and Bates v Litttle Rock. The "reform" faction tends not to acknowledge the attack they are making on the civil rights era cases, just as they don't discuss the way these cases underpin the right to privacy found in Roe v Wade.

He concurred in ACLF, linking strict scrutiny to the severe burden test of Norman v Reed.   Censorship of political speech is a severe burden on political association. In ACLF, all nine justices, even Scalia, agreed that McIntyre was the controlling precedent, and that Colorado's marijuana legalization petitioners could not be compelled to wear nametags.

ACLF is a sequel case to Grant v Meyer; Paul Grant was the real party in interest in both cases, along with David Aitkin and some of my old Colorado Libertarian circle.

In McConnell v FEC and Citizens United, Jim Bopp had teed up cases based on an express advocacy argument, instead of directly arguing under Talley and McIntyre. The court found that the speech in question was express advocacy, or its equivalent, and therefore his claims failed.  I'm critical of the court's view here, because "express advocacy" has to be both express, and advocacy, so there's no equivalent in speech that is merely suggestive. But I don't really care about expresss advocacy; it's a red herring. 

These cases, while they might have reached the right conclusions, overstated the case for allowing disclaimer rules that censor political speech. 

They created a great deal of indeterminacy in areas that should be bright lines.

See the dueling opinions betweeen Posner and Easterbrook in my Majors v Abell case.

Some future case will bring up this issue. If the issue is squarely presented without some express advocacy distraction, I am hopeful that the court will clarify its position.

 I presume that Gorsuch will be confirmed and hope or trust that Justice Gorsuch will follow stare decisis - Talley, McIntyre, ACLF, and Watchtower - instead of being another anti-speech Scalia. I am not saying Scalia was always anti-speech. But it's fair to say he wasn't a fan of anonymous speech, such as the secret ballot.

A possible case that could bring up this issue would be a challenge to "stand by your ad".

That part of BCRA is solidly unconstitutional under precedents about compelled speech.
AID v Open Society, Riley v Federation of the Blind, Tornillo v Miami Herald, Wooley v Maynard. 

I have not seen a clear statement by disclaimer fans that they think these cases should be overruled, or that they were overruled by Citizens United

Who is likely to bring such a case? Don't expect it to be Jim Bopp; like Posner and Scalia he seems to like disclaimer statutes, so long as they are limited to express advovacy.

The ACLU, IJ.org, somebody ad hoc like ACLF, or any congressional candidate with deep pockets, could bring such a case. Or the issue could come to the court via a challenge to any of the state statutes helpfully set out in note 2 of Scalia's dissent in McIntyre.

Anyway, I look forward to Justice Gosuch's opinion in such a case. I don't think he'd be one of two or three votes; I think he'd be in the majority. I have no idea where J. Sotomayor stands on this issue, even J. Kagen's position is unknown at this time.

First edit: Curiously, in Watchtower, Jusice Thomas joined Scalia's rather caustic concurrence, rather than writing separately. I may, later, edit this post to include some links to cited opinions.

Part II
[This section of what is turning out to be a longer than average post is sponsored by Maggie O'Briens in St. Louis.]
In this part I discuss Hasen's post in a bit more detail.


the Supreme Court has long upheld the constitutionality of requiring disclosure of the money behind elections, lobbying, and many political activities.

Indeed, disclosure has a long history as part of anglo-american law. Trial by ordeal, the star chamber, and on the continent the inquisition, are the ancestors of more recent institutions such as the third degree, the rubber hose and the plea bargain, in which confessions are extorted or beaten out of suspects. I myself have been tortured in jail. A majority of criminal convictions rely on confessions. The "voluntary" income tax ritual of April 15th involves a similar confession and penance.

In the 1976 Buckley v. Valeo case, the Court held that such disclosure, while implicating First Amendment rights, served three important government interests: deterring corruption, providing voters with valuable information, and helping to enforce other laws (such as the ban on foreign money in US elections).

Discussion of these 3 interests:
3. Thus disclosure serves as a kind of pre-arranged partial confession. A person who is subject to disclosure either is or is not, or might be, guilty of some further crime, such as receiving a contribution from a non-citizen permanent resident such as a “dreamer”. If they are not guilty, this state interrest is tenuous and overbroad. If they are guilty, or might be, 5th amendment values against self-incrimination come into play.

McIntyre found that aiding in law enforcement was a too tenuous an interest to justify the ohio statute. Financial disclosure involves weighing this differently, and reaching a different conclusion, but it is a close case.

2. Voters are provided with valuable information by chilling speech, so that the poor are less able to participate in the democratic process. This burns the global village to roast the pig. Reno v ACLU. McIntyre rejected this interest as well.

1. Disclosure does deter some corruption, by deterring campaign speech generally.

Similarly, voter fraud can be combated by doing away with elections altogether, or discouraging voting via voter ID and other such poll taxes. Doing so disproportionately impacts the poor, but oh well.

There is lack of fitness between the goal of deterring corruption and the means of penalizing political speech by making it subject to civil or criminal penalties, and requiring submission of forms that make income taxes look EZ. Those least deterred are the corrupt, who are already willing to violate law with illegal spending. Those next least deterred are the rich and powerful, who can afford lawyers and accountants and lobbyists to prepare disclosure forms and argue and negotiate them in front of commissions, and pay fines if needed. Those most deterred are small speakers, the average citizen who puts a sign in her window or cosigns with her husband a Christmas letter to her neighbors, and thereby becomes a regulated political committee.

So each of the three proffered justifications for disclosure is problematic in some way.

Although the Court has repeatedly upheld disclosure laws against First Amendment challenge, Justice Thomas has taken the position that there is a constitutional right to anonymity, and Justice Alito has been moving in that direction (as in his Doe v. Reed concurrence), suggesting that disclosure laws can chill activity.

Justice Thomas is of course quite correct. The right to anonymity is well-established, by cases including Talley, NAACP v Alabama, Bates v. Little Rock, Socialist Workers 74, McIntyre v Ohio, Buckley v ACLF, and Watchtower. Some 22 lower court cases echo this point. E.g. Stewart v Taylor, my 1997 introduction to this topic. The right to anonymity is not absolute, but it certainly exists, a point Hasen denies or obscures. The issue is how far does the right to anonymity extend, when weighed against legitimate state interests in chilling campaign speech via mandated reporting.

Part of that dispute is what is the proper standard of review. The court at times has used the phrase “exacting scrutiny” to mean both lax and strict scrutiny. Judge, soon Justice, Gorsuch has suggested that he supports strict scrutiny at least some of the time. That’s no surprise, they all do, although Justice Thomas doesn’t like the phrase, preferring to look at history and original intent. In McIntyre he stressed how anonymous political speech was the norm for the founders, and protection of anonymous political speech drove the adoption of the bill of rights.

Under McIntyre’s formulation of exacting scrutiny, legitimate state interests are not enough; they must be overriding and narrowly tailored. The worry of Hasen and his faction is that a Justice Gorsuch would apply such a standard not just to disclaimer cases, but to disclosure as well, and create or extend a right for billionaires, such as the Clintons, to anonymously meddle in elections.

Clinton and Trump and folks like Perot are not the only billionaires in the mix. The nearly invisible hands of Fred Koch and David Rockefeller continue to pull strings beyond the grave. Adelson, Mercer, Anschutz all have more than average influence.

Partly this is a problem the reform faction has brought upon itself. For years, Valeo and Talley set out two different rules. Under Talley, disclaimer regulation of the content of campaign speech is not allowed (except in limited circumstances such as corporations, maybe unions, or fake fundraising sites. Survival Ed, Citizens United. In for a calf is not in for a cow. McIntyre, Ginsberg concurring.)

Under Valeo, disclosure regulation, via reporting of finances, is ok, if not too onerous and reasonably fitted between ends and means.

The reform faction has done much to muddle the waters, obscuring these two different rules, with the result that courts have gotten them confused, and sometimes call disclaimers disclosures, and sometimes apply the wrong kind of exacting scrutiny. This tactic is somewhat similar to the tactic of deliberately falsely claiming that implied advocacy is express, when it isn’t, in order to trigger a regulatory investigation to chill speech.

With Gorsuch on the bench, there is now a possibility that that muddling will lead a majority, given the right case, to rely on disclaimer cases like Talley and McIntyre in striking down disclosure rules.

What can the reform faction do about this threat to their agenda? They can write edit and publish law review articles, blog posts and briefs that clarify the legal distinctions between disclosure (usually ok under Valeo) and disclaimers (usually not ok under McIntyre.) The best time to begin this would be now, instead of waiting when a case like Independence Institute reaches the docket. I am available as a coauthor of such articles, or co-counsel on some such briefs.

Robbin Stewart, gtbear at gmail.

I don't know yet if there will be a part III later.

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