[EL] “Dark Money” and Advocating for Confirmation

Wed Mar 22 08:51:30 PDT 2017

I’m curious whether advocates of greater disclosure believe NAACP v. Alabama should be overturned? Right now, and forgive me for oversimplifying, but it appears that the status quo is that NAACP still defines the general issue of forced disclosure of membership in and donations to private associations, BUT Buckley v. Valeo has established an exception which is that in the context of candidates for public office there is a substantial and compelling enough interest to override the NAACP concerns. This status quo could change in either direction based on both legislation and judicial decisions, but that’s my sense of the situation at the moment.

But the comments of Whitehouse and others suggest, however, that NAACP should no longer be given much if any precedential value, and that the Buckley paradigm should reign to the extent there is any connection to any identifiable public interest, such as knowing who the Cato Institute’s donors are because they advocate for particular policy positions and file amicus briefs. I’m presently looking at legislation in Connecticut, for example, that would require donors to charities that operate charter schools be disclosed, which would be suspect under NAACP but more likely allowed under an expanded and reigning Buckley.

So I’m just curious whether this is indeed the belief of some/many/most advocates for greater disclosure believe either that NAACP was wrongly decided, or should be overturned, or severely curtailed to only provide anonymity to groups that can prove their members/donors have or will face retaliation or where there is not even a tangential nexus to any sort of political/public policy/public interest question. Happy to take questions/responses offline if preferred.

Sean Parnell
Vice President for Public Policy, The Philanthropy Roundtable
1120 20th Street NW, Suite 550 South
Washington, DC  20036
(202) 600-7883 (direct)
(571) 289-1374 (mobile)
sparnell at philanthropyroundtable.org

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, March 22, 2017 11:29 AM
To: Steve Klein <stephen.klein.esq at gmail.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] “Dark Money” and Advocating for Confirmation

I don’t like the term “dark money” and try to avoid using it.

I take the substantive question to be whether it would be constitutional to require disclosure of large amounts of money spent to support or oppose the confirmation of a Supreme Court Justice.  I believe it would be constitutional under Harriss (upholding lobbying disclosure) and McConnell v. FEC (upholding disclosure of electioneering communications even if it includes genuine issue advocacy).

Rick

From: Steve Klein <stephen.klein.esq at gmail.com<mailto:stephen.klein.esq at gmail.com>>
Date: Wednesday, March 22, 2017 at 8:17 AM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: “Dark Money” and Advocating for Confirmation

Sorry, forgot to change the subject line. Please reply here if you’d like.

On Wed, Mar 22, 2017 at 11:16 AM, Steve Klein <stephen.klein.esq at gmail.com<mailto:stephen.klein.esq at gmail.com>> wrote:
Prof. Hasen (and anyone who would care to weigh in),

Do you agree with Sen. Whitehouse’s contention that someone's "spending $10 million to get Gorsuch confirmed” could be categorized as “dark money”?

---

Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood of Undisclosed Money in Elections?<http://electionlawblog.org/?p=91744>
Posted on March 22, 2017 7:49 am<http://electionlawblog.org/?p=91744> by Rick Hasen<http://electionlawblog.org/?author=3>
The Supreme Court has long upheld the constitutionality of requiring disclosure of the money behind elections, lobbying, and many political activities. 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).
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 Scalia, an originalist like Justice Thomas, disagreed that the original meaning of the First Amendment required anonymity, famously writing in Doe:
For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … 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.
 There has been a continued push by campaign deregulationists to get the Court to water down corruption on First Amendment grounds—not to throw it out entirely as to campaigns, but to allow outside groups to mask their donors. (It is already now pretty easy to do this under federal law, but that’s a political, not legal, problem. Congress needs to rewrite the laws to make disclosure work).
So where would a Justice Gorsuch be on this? Would he be with a majority that has upheld disclosure, or would he be with J. Thomas and, likely Justice Alito, believing that the “chill” of compelled disclosure requires constitutional anonymity?
If you watch the exchange with Senator Whitehouse from yesterday’s hearing, <http://www.slate.com/blogs/the_slatest/2017/03/21/whitehouse_grills_gorsuch_on_dark_money_and_citizens_united.html> I believe there is a good chance Gorsuch will be in the Thomas/Alito camp. He spoke of the “chill” and did not really give any reason why disclosure might be valuable. He never suggested, for example, that the public might have an interest in knowing who is spending millions to support his campaign. From Slate:
And because of our lax disclosure laws, it is often very difficult to determine who is spending money and how. For example, Whitehouse said, someone is spending $10 million to get Gorsuch confirmed.
“Hypothetically,” he continued, it could be “your friend Mr. Anschutz. We don’t know because it is dark money<https://en.wikipedia.org/wiki/Dark_money>.” He asked Gorsuch why someone thought it was worth $10 million to get him confirmed.
“You’d have to ask them,” a frustrated Gorsuch responded.
“I can’t,” Whitehouse said, “because I don’t know who they are. It’s just a front group.”
What does it matter, if he’s only a second or third vote? Because we can look to the future, 10 years from now, and there could well be more Gorsuch’s on the Court.
It makes me worried.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91744&title=Will%20Gorsuch%20Break%20With%20Scalia%2C%20Providing%202d%20(or%203d)%20Vote%20To%20Allow%20Flood%20of%20Undisclosed%20Money%20in%20Elections%3F>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

On Wed, Mar 22, 2017 at 11:01 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood of Undisclosed Money in Elections?<http://electionlawblog.org/?p=91744>
Posted on March 22, 2017 7:49 am<http://electionlawblog.org/?p=91744> by Rick Hasen<http://electionlawblog.org/?author=3>
The Supreme Court has long upheld the constitutionality of requiring disclosure of the money behind elections, lobbying, and many political activities. 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).
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 Scalia, an originalist like Justice Thomas, disagreed that the original meaning of the First Amendment required anonymity, famously writing in Doe:
For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … 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.
 There has been a continued push by campaign deregulationists to get the Court to water down corruption on First Amendment grounds—not to throw it out entirely as to campaigns, but to allow outside groups to mask their donors. (It is already now pretty easy to do this under federal law, but that’s a political, not legal, problem. Congress needs to rewrite the laws to make disclosure work).
So where would a Justice Gorsuch be on this? Would he be with a majority that has upheld disclosure, or would he be with J. Thomas and, likely Justice Alito, believing that the “chill” of compelled disclosure requires constitutional anonymity?
If you watch the exchange with Senator Whitehouse from yesterday’s hearing, <http://www.slate.com/blogs/the_slatest/2017/03/21/whitehouse_grills_gorsuch_on_dark_money_and_citizens_united.html> I believe there is a good chance Gorsuch will be in the Thomas/Alito camp. He spoke of the “chill” and did not really give any reason why disclosure might be valuable. He never suggested, for example, that the public might have an interest in knowing who is spending millions to support his campaign. From Slate:
And because of our lax disclosure laws, it is often very difficult to determine who is spending money and how. For example, Whitehouse said, someone is spending $10 million to get Gorsuch confirmed.
“Hypothetically,” he continued, it could be “your friend Mr. Anschutz. We don’t know because it is dark money<https://en.wikipedia.org/wiki/Dark_money>.” He asked Gorsuch why someone thought it was worth $10 million to get him confirmed.
“You’d have to ask them,” a frustrated Gorsuch responded.
“I can’t,” Whitehouse said, “because I don’t know who they are. It’s just a front group.”
What does it matter, if he’s only a second or third vote? Because we can look to the future, 10 years from now, and there could well be more Gorsuch’s on the Court.
It makes me worried.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91744&title=Will%20Gorsuch%20Break%20With%20Scalia%2C%20Providing%202d%20(or%203d)%20Vote%20To%20Allow%20Flood%20of%20Undisclosed%20Money%20in%20Elections%3F>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

Will Democrats Filibuster Gorsuch, Forcing McConnell to Go Nuclear?<http://electionlawblog.org/?p=91742>
Posted on March 22, 2017 7:38 am<http://electionlawblog.org/?p=91742> by Rick Hasen<http://electionlawblog.org/?author=3>
Carl Hulse<https://www.nytimes.com/2017/03/22/us/politics/joviality-at-neil-gorsuchs-hearing-masks-drama-behind-the-scenes.html?ref=politics> suggests this is a live possibility. The signals I had seen suggested Democrats would not filibuster.
We’ll see.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91742&title=Will%20Democrats%20Filibuster%20Gorsuch%2C%20Forcing%20McConnell%20to%20Go%20Nuclear%3F>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Judge Gorsuch: Do You Back the ‘One Person, One Vote’ Principle?”<http://electionlawblog.org/?p=91740>
Posted on March 22, 2017 7:23 am<http://electionlawblog.org/?p=91740> by Rick Hasen<http://electionlawblog.org/?author=3>
Doug Smith, author of On Democracy’s Doorstep<https://www.amazon.com/Democracys-Doorstep-Inside-Supreme-Brought-ebook/dp/B00H0V04TE/ref=as_at?creativeASIN=B00H0V04TE&linkCode=w50&tag=thedailybeast-autotag-20&imprToken=RUiC3c-9qcdvwgANwKXXTA&slotNum=0>, has written this article<http://www.thedailybeast.com/articles/2017/03/22/judge-gorsuch-do-you-back-the-one-person-one-vote-principle.html> for the Daily Beast.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91740&title=%E2%80%9CJudge%20Gorsuch%3A%20Do%20You%20Back%20the%20%E2%80%98One%20Person%2C%20One%20Vote%E2%80%99%20Principle%3F%E2%80%9D>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Gorsuch Could Undermine Trump Travel Ban”<http://electionlawblog.org/?p=91738>
Posted on March 22, 2017 7:11 am<http://electionlawblog.org/?p=91738> by Rick Hasen<http://electionlawblog.org/?author=3>
Ciara Torres-Spelliscy blogs.<http://www.brennancenter.org/blog/gorsuch-could-undermine-trump-travel-ban>
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91738&title=%E2%80%9CGorsuch%20Could%20Undermine%20Trump%20Travel%20Ban%E2%80%9D>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Former Colorado GOP chairman Steven Curtis charged with voter fraud”<http://electionlawblog.org/?p=91736>
Posted on March 21, 2017 8:56 pm<http://electionlawblog.org/?p=91736> by Rick Hasen<http://electionlawblog.org/?author=3>
The Denver Channel<http://www.thedenverchannel.com/news/politics/former-colorado-gop-chairman-steven-curtis-charged-with-voter-fraud> with a story that is just too rich:
The former chairman of the Colorado Republican Party is charged with forgery and voter fraud for allegedly forging his wife’s mail-in ballot from last year’s election, according to court records and sources….
The Colorado Secretary of State’s Office says this is the only voter fraud case that has ended in charges stemming from last year’s election.
Curtis spoke about voter fraud ahead of last year’s election.
“It seems to be, and correct me if I’m wrong here, but virtually every case of voter fraud I can remember in my lifetime was committed by Democrats,” he told KLZ 560.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91736&title=%E2%80%9CFormer%20Colorado%20GOP%20chairman%20Steven%20Curtis%20charged%20with%20voter%20fraud%E2%80%9D>
Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Watch Sen. Whitehouse Grill Gorsuch About Dark Money, Corporate Power, and Citizens United”<http://electionlawblog.org/?p=91734>
Posted on March 21, 2017 1:49 pm<http://electionlawblog.org/?p=91734> by Rick Hasen<http://electionlawblog.org/?author=3>
Slate<http://www.slate.com/blogs/the_slatest/2017/03/21/whitehouse_grills_gorsuch_on_dark_money_and_citizens_united.html> with the video.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91734&title=%E2%80%9CWatch%20Sen.%20Whitehouse%20Grill%20Gorsuch%20About%20Dark%20Money%2C%20Corporate%20Power%2C%20and%20Citizens%20United%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

Judge Gorsuch Misstates Citizens United’s Holding, and Inexplicably Says Congress Has Ample Room to Enact Expenditure Limits<http://electionlawblog.org/?p=91730>
Posted on March 21, 2017 8:37 am<http://electionlawblog.org/?p=91730> by Rick Hasen<http://electionlawblog.org/?author=3>
From an exchange with Sen. Leahy at today’s hearing:
Judge Gorsuch, questioned on Citizens United, said the following (my transcription):
I think there is lots of room for legislation in this area that this court has left. The Court indicated that if proof of corruption can be demonstrated a different result may obtain on expenditure limits….
I think after Citizens United made clear that quid pro quo corruption remains a vital concern and a subject for potential legislation. And I think there is ample room for this body to legislate, even in light of Citizens United, whether it has to do with contribution limits, whether it has to with expenditure limits, or whether it has to do with disclosure requirements.
This is incorrect. In American Tradition Partnership v. Bullock,<https://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf> the Supreme Court majority (the same majority in Citizens United) held that it would NOT consider evidence of corruption to justify a spending limit. It needed only a paragraph to dispose of the case given its holding in Citizens United. The dissenters (the same dissenters in Citizens United) argued in contrast that the Court should consider evidence of corruption which could justify an expenditure limit.
Instead, in Citizens United the Court left NO room for spending limits, apart from spending limits applied to foreign individuals and entities (which it allowed via a summary affirmance in Bluman v. FEC).
I explain all of this in Citizens United and the Illusion of Coherence<http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1166&context=mlr> in the Michigan Law Review.
So either Judge Gorsuch does not understand the scope of Citizens United and its holding, or he is trying to soften its harshness by wrongly suggesting Congress has room to legislate spending limits.
I don’t believe he would actually uphold any spending limit Congress passes (expect as to foreign spending).  I explain why based on reading his earlier opinions here. <http://www.cnn.com/2017/03/01/opinions/worry-about-gorsuch-hasen/>
Update: Derek Muller disagrees<http://excessofdemocracy.com/blog/2017/3/no-gorsuch-didnt-misstate-citizen-uniteds-holding>.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91730&title=Judge%20Gorsuch%20Misstates%20Citizens%20United%E2%80%99s%20Holding%2C%20and%20Inexplicably%20Says%20Congress%20Has%20Ample%20Room%20to%20Enact%20Expenditure%20Limits>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“Trump’s White House Counsel Don McGahn Has Combative Record”<http://electionlawblog.org/?p=91728>
Posted on March 21, 2017 7:32 am<http://electionlawblog.org/?p=91728> by Rick Hasen<http://electionlawblog.org/?author=3>
Peter Overby <http://www.npr.org/2017/03/20/520862756/trumps-white-house-counsel-don-mcgahn-has-combative-record> for NPR.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91728&title=%E2%80%9CTrump%E2%80%99s%20White%20House%20Counsel%20Don%20McGahn%20Has%20Combative%20Record%E2%80%9D>
Posted in election law biz<http://electionlawblog.org/?cat=51>

“Senators must press Gorsuch on campaign finance laws”<http://electionlawblog.org/?p=91726>
Posted on March 21, 2017 7:29 am<http://electionlawblog.org/?p=91726> by Rick Hasen<http://electionlawblog.org/?author=3>
Ann Ravel SacBee oped.<http://www.sacbee.com/opinion/op-ed/soapbox/article139408353.html>
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91726&title=%E2%80%9CSenators%20must%20press%20Gorsuch%20on%20campaign%20finance%20laws%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

Would a Gorsuch Confirmation Be Like Putting John Finnis and Natural Law on the Supreme Court?<http://electionlawblog.org/?p=91724>
Posted on March 21, 2017 7:25 am<http://electionlawblog.org/?p=91724> by Rick Hasen<http://electionlawblog.org/?author=3>
Steve Mazie makes the case.<http://www.economist.com/blogs/democracyinamerica/2017/03/moral-hazard>
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91724&title=Would%20a%20Gorsuch%20Confirmation%20Be%20Like%20Putting%20John%20Finnis%20and%20Natural%20Law%20on%20the%20Supreme%20Court%3F>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“If Judge Gorsuch is Really Like Justice Scalia, Then He Will Be No Fan of Voting Rights”<http://electionlawblog.org/?p=91722>
Posted on March 21, 2017 7:22 am<http://electionlawblog.org/?p=91722> by Rick Hasen<http://electionlawblog.org/?author=3>
Josh Douglas<http://www.huffingtonpost.com/entry/58d11e77e4b07112b6473198> for HuffPo.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91722&title=%E2%80%9CIf%20Judge%20Gorsuch%20is%20Really%20Like%20Justice%20Scalia%2C%20Then%20He%20Will%20Be%20No%20Fan%20of%20Voting%20Rights%E2%80%9D>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>

James Sample: Dems Should Hold Filibuster Confrontation for Nomination that Matters More<http://electionlawblog.org/?p=91720>
Posted on March 21, 2017 7:21 am<http://electionlawblog.org/?p=91720> by Rick Hasen<http://electionlawblog.org/?author=3>
Watch.<https://livestream.com/accounts/18968940/events/7055388/videos/152277320>
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91720&title=James%20Sample%3A%20Dems%20Should%20Hold%20Filibuster%20Confrontation%20for%20Nomination%20that%20Matters%20More>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Bauer on Hasen on Kozinski on the Travel Ban<http://electionlawblog.org/?p=91718>
Posted on March 21, 2017 7:19 am<http://electionlawblog.org/?p=91718> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob concurs<http://www.moresoftmoneyhardlaw.com/2017/03/judge-kozinskis-complaint-first-amendment-realismin-travel-ban-case/> in the judgment.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91718&title=Bauer%20on%20Hasen%20on%20Kozinski%20on%20the%20Travel%20Ban>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Huefner’s Legislation and Regulation in a Nutshell”<http://electionlawblog.org/?p=91716>
Posted on March 21, 2017 7:18 am<http://electionlawblog.org/?p=91716> by Rick Hasen<http://electionlawblog.org/?author=3>
New book coming<http://www.westacademic.com/Professors/ProductDetails.aspx?NSIID=17892> from the great Steve Huefner.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91716&title=%E2%80%9CHuefner%E2%80%99s%20Legislation%20and%20Regulation%20in%20a%20Nutshell%E2%80%9D>
Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072<tel:(949)%20824-3072> - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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Steve Klein
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Steve Klein
Attorney*
https://www.linkedin.com/in/stephenrklein

*Licensed to practice law in Illinois and Michigan
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