Remember, Liberals, You Used to Like Anonymous Donors
(Bloomberg Opinion) -- Once upon a time, American liberals thought that people should be allowed to donate money to charities anonymously to protect them from retaliation for supporting controversial causes. Now it’s conservatives who want to preserve donor privacy, in keeping with their skepticism of campaign finance laws that require disclosure.
On Thursday the Supreme Court sided with 1950s liberals and contemporary conservatives, striking down a California law that required charities to disclose the names of the largest donors. The outcome is important because of its implications for campaign-finance law. And it is striking because it shows how the politics of anonymity and nondisclosure have flipped.
The Supreme Court first addressed the issue in 1958, making precedent by protecting the NAACP against having to disclose its membership lists to the state of Alabama. On Thursday, the court’s six conservatives joined most of the majority opinion by Chief Justice John Roberts that rested heavily on the 1958 precedent. All three liberals joined Justice Sonia Sotomayor’s dissent that would have upheld the California law.
Roberts reasoned, as Justice John Marshall Harlan had in NAACP v. Alabama, that compelling disclosure of membership can chill the free-association rights of members who fear retaliation. Roberts dismissed California’s claim that it would try to keep the information confidential, which he said were “not worth much.” He added that the dangers of donors losing privacy and being harassed were greater than ever today, when donors can be exposed through the practice of doxing online.
The legally significant part of the opinion was technical, involving the question of what standard of review the court should apply to disclosure cases. But it was highly significant.
Roberts loves technical doctrinal issues, of which he is the acknowledged master among the current justices. True to form, he added a new twist to the existing doctrinal armature.
Roberts came up with a new standard to judge the validity of laws that could impinge on a constitutional right like free association. He defined what the court has called “exacting scrutiny” as a variation of the more familiar “strict scrutiny” that courts employ to judge when restricting rights can be considered constitutionally acceptable. By Roberts’s reasoning, endorsed only by Justices Brett Kavanaugh and Amy Coney Barrett, “exacting scrutiny” requires the government’s interest to be compelling and the law in question narrowly tailored to meet that interest. “Strict scrutiny” is tougher, insisting that the means adopted by the government must also be the least restrictive possible.
He said the California law flunked exacting scrutiny. Yet the fact that he took the trouble to draw the distinction — and apply exacting scrutiny, not strict scrutiny — could matter in the future because it might be enough for Roberts, Kavanaugh and Barrett to continue to uphold campaign-finance disclosure laws, which are narrowly tailored to the government’s interest in fighting corruption but are possibly not the least restrictive means the government could use to reach that end. With the court’s liberals, that would be enough votes to uphold existing campaign-finance disclosure requirements.
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch refused to associate themselves with Roberts’s innovation because they are inclined to strike down all campaign-finance disclosure laws.
Sotomayor’s dissent was notable in the different attitude it took toward disclosure than the one liberals favored before the rise of campaign-finance disclosure requirements and the conservative backlash against them. Sotomayor criticized the majority opinion for failing to require that donors show that they were actually burdened by the disclosure requirement. (Roberts’s opinion took the view that the disclosure requirement would burden donors under essentially any conceivable set of circumstances.)
Sotomayor emphasized California’s interest in avoiding charitable fraud. But her main concern was that, as she put it, the opinion “marks reporting and disclosure requirements with a bull’s-eye.” Sotomayor and the liberals understood Roberts’s opinion as a further step in the judicial process of overturning legislation intended to require election-related disclosures.
The charities in question in the California case aren’t formally involved in campaign finance. Yet it’s crucial to remember that civil-society institutions can play an important role in the political sphere. The National Association for the Advancement of Colored People wasn’t doing campaign finance in Alabama in 1958. It was, however, one of the central civil-society actors in one of the most consequential political struggles in U.S. history.
Progressives are right to think that campaign-finance laws should require disclosure. By effectively exempting so-called independent expenditures from disclosure requirements, as it did in the infamous 2010 Citizens United case, the court has undermined the power of disclosure laws.
Nevertheless, protecting donor anonymity to civil-society institutions should still be something liberals care about. Right-wing trolls are just as capable of harassing donors to progressive causes as left-wing trolls might harass conservative donors.
Seen through that lens, today’s decision isn’t the loss for liberals that the 6-3 lineup might suggest. Roberts, Kavanaugh and Barrett are leaving room to keep existing campaign-finance disclosure laws in place. And protecting donor anonymity to civil-society institutions should actually be good for everyone.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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