[EL] AFP

Thu Jul 1 12:24:17 PDT 2021

Dear Colleagues:
I need to commend opponents of laws regulating the role of money in
politics on today’s AFP disclosure decision.    Unlike others who expressed
surprise by today’s decision, I was not.  I saw it as part of a long
litigation strategy to undo most of the post-Watergate era reforms.  Let me
explain.

Think about where we were less than a generation ago.  After McConnell v.
FEC it looked as if the Supreme Court was willing to give Congress and the
political process broad leeway to regulate money in politics.  But then
there was a very successful legal and political mobilization to reverse the
law made in this case.  I will not recount this history since most people
here know it.

But what I do want to mention is how some argued (including those who are
part of this listserv) that restrictions on money in politics violate their
First Amendment free speech rights or that these laws are ineffective.
They argued that what we should have is not regulation on money and simply
have full disclosure, with the latter being sufficient to check abuses and
problems.  I argued then that the “disclosure only” argument was merely a
Trojan Horse and that the eventual aim would be to go after disclosure
laws, claiming that they too violate First Amendment free speech or
association.  Clarence Thomas in several opinions foreshadowed this, and
now we have AFP.  No surprise to me.

What we have witnessed is the reduction of political freedom to market
freedom, political democracy is no more than laissez faire capitalism, and
market freedom is now given First Amendment protection against even
disclosure.    Good job to those who have been successful in effecting this
legal reductionism and having the right Court in the right place to
entertain these arguments.

On Thu, Jul 1, 2021 at 1:08 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> I have thought for years, and said in published material, that the low
> threshold at which disclosure is set in the federal system – which has not
> changed since it was first created in the 1970s – is vulnerable to
> constitutional challenge.  I thought that before AFP, but I agree, if the
> Court ever goes there, it will draw on AFP in doing so.  There will be
> issues around the margins of the informational interest after AFP, such as
> this one, but given the strength of the informational interest, I would
> expect the core of disclosure policies to remain the same constitutionally.
>
>
>
> 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
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Mark Scarberry
> *Sent:* Thursday, July 1, 2021 1:47 PM
> *To:* Rick Hasen <rhasen at law.uci.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] AFP
>
>
>
> 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 Law **mark.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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-- 
David Schultz, Distinguished University Professor
Hamline University
Department of Political Science,
Department of Legal Studies,
Department of Environmental Studies
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