[EL] AFP

[Mark Scarberry]

Won't it be harder to justify disclosure of donors who contribute small
amounts?

Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com




On Thu, Jul 1, 2021 at 10:42 AM Rick Hasen <rhasen at law.uci.edu> wrote:

> I’m much less sanguine about both disclosure and campaign contribution
> laws---I make that point in a piece coming soon, which I will share.
>
>
>
>
>
> *From: *Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> *Date: *Thursday, July 1, 2021 at 10:32 AM
> *To: *Election Law Listserv <law-election at uci.edu>
> *Subject: *Re: [EL] AFP
>
>
>
>                My tentative reaction is much like Rick’s; but as to the
> last point, didn’t *Shelton v. Tucker *generally hold the disclosure law
> unconstitutional?  (“The Supreme Court of Arkansas upheld the
> constitutionality of Act 10, on its face and as applied to the
> petitioners.”  “The unlimited and indiscriminate sweep of the statute now
> before us brings it within the ban of our prior cases. The statute's
> comprehensive interference with associational freedom goes far beyond what
> might be justified in the exercise of the State's legitimate inquiry into
> the fitness and competency of its teachers. The judgments in both cases
> must be reversed.”)
>
>
>
>                Eugene
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Pildes, Rick
> *Sent:* Thursday, July 1, 2021 10:23 AM
> *To:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] AFP
>
>
>
> A few thoughts on the *AFP *decision, which is a major one on how courts
> are to assess the constitutionality of disclosure laws.   The most
> important questions going forward are how this doctrinal shift will apply
> to disclosure requirements in the context of elections.
>
>
>
>    1.  The Court holds that laws which require disclosure of major donors
>    to organizations *inherently* burden freedom of association enough
>    that government must always have a sufficiently important interest to
>    justify such laws.   That means a plaintiff, such as an organization, does
>    not have to show that there are particular reasons disclosure will cause
>    specific injury to it – for example, that its donors are likely to suffer
>    various forms of reprisal or retaliation as a result of disclosure.
>    2. The most important point that follows is that disclosure laws must
>    always be “narrowly tailored” to achieving government’s important interests
>    – which includes considering other alternatives to achieving that goal
>    short of disclosure.
>    3. The CA law fails mainly because the Court concludes that CA hadn’t
>    shown that it had significant reasons to require the disclosures at issue.
>    As the Court read the facts, CA did not make much use of these forms as
>    tools to investigate potential charitable fraud or other illegal actions by
>    charities.  That makes for a major distinction between this decision and
>    how the Court views disclosure requirements in the election context.  In
>    the election setting, disclosure requirements already get over the first
>    hurdle in this analysis, unlike CA’s law.  The Court has recognized several
>    important interests that justify disclosure of donors in the election
>    context – including the important informational interest voters have in
>    knowing who is funding election activity.
>    4. The key question will be how the second hurdle – that disclosure
>    laws be narrowly tailored – will apply in the election context.  But given
>    the Court’s recognition of the informational interest voters have, laws
>    providing that information would seem to meet this narrow tailoring
>    requirement in general.
>    5. The Court has also recognized other important interests behind
>    disclosure requirements in the election context, such as aiding in
>    enforcement of the existing laws and reducing the risk of corruption (in
>    the context of disclosing campaign contributions).  But given the unique
>    and powerful informational interest the Court has long recognized in the
>    election context, it’s not clear AFP will have significant implications for
>    election disclosure laws – though I expect significant anxiety on that
>    score.
>    6. I believe this is the first time the Court has struck down a
>    disclosure law as a general matter (technically, on its face) rather than
>    as-applied, though it has entertained facial challenges to such laws
>    before.
>
> Will be interested to hear what others think of this assessment.
>
>
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 347-886-6789
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