[EL] AFP

Wed Jul 7 14:42:55 PDT 2021

I’d just add that a number of disclosure laws provide misinformation (e.g., disclosing donors who didn’t fund the communication)  and I’d think these may finally get the scrutiny they deserve.

And a number of states have unindexed thresholds lower than the federal ones.

David
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From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Pildes, Rick
Sent: Thursday, July 01, 2021 2:07 PM
To: Mark Scarberry <mark.scarberry at pepperdine.edu>; Rick Hasen <rhasen at law.uci.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] AFP

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<mailto: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<mailto:rhasen at law.uci.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] AFP

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

Mark

[Pepperdine wordmark]
Caruso School of Law

Mark S. Scarberry
Professor of Law
mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>
Personal: mark.scarberry at gmail.com<mailto:mark.scarberry at gmail.com>

On Thu, Jul 1, 2021 at 10:42 AM Rick Hasen <rhasen at law.uci.edu<mailto: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<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of "Volokh, Eugene" <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>>
Date: Thursday, July 1, 2021 at 10:32 AM
To: Election Law Listserv <law-election at uci.edu<mailto: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<mailto: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<mailto: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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