[EL] Question about AFP v. Bonta and "exacting scrutiny"

[Smith, Bradley]

Vlad,

I would rephrase it to say, "one of the praises for the majority opinion in Bonta is that it returns some real teeth into the 'exacting scrutiny' standard!"

Rick is quite right in that in cases like McConnell, Doe v. Reed, and CU, the Court was unfaithful to its earlier precedents including NAACP v. Alabama, Talley v. California, Bates v. Little Rock, Shelton v. Tucker, Gibson v. Florida Legis. Comm'n, Gremillion v. NAACP, Sweezy v. New Hampshire, Buckley, and McIntyre.  McConnell, Doe, and CU radically changed the meaning of "exacting scrutiny" from its roots in the 1950s and 60s and its formalization in Buckley.

As I discuss in the Cato Supreme Court Review, https://www.cato.org/sites/cato.org/files/2021-09/supreme-court-review-2020-2021-3.pdf, the Court in McConnell, Doe, and (probably inadvertently) CU, had basically reduced "exacting scrutiny" to a formality akin to "rational basis" review. (see especially p. 66-74; 80-82). Bonta restores some meaning to the standard.

And you are quite right--the criticism you mention cannot be squared with McIntyre except by ignoring it (and other precedents).
Americans for Prosperity Foundation v. Bonta A First Amendment for the Sensitive<https://www.cato.org/sites/cato.org/files/2021-09/supreme-court-review-2020-2021-3.pdf>
Americans for Prosperity Foundation v. Bonta 65 political views became known. Overall, only a third of Americans had this concern.5 In August 2017, a Harvard/Harris poll found that 42 percent of ...
www.cato.org


Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954


________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Rick Hasen <rhasen at law.uci.edu>
Sent: Friday, November 19, 2021 10:38 AM
To: Kogan, Vladimir <kogan.18 at osu.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Question about AFP v. Bonta and "exacting scrutiny"


McIntyre has been treated as a one-off by most of the Justices of the Supreme Court, and not relied upon in any majority opinion through the years after it. Justice Thomas has loudly protested this. I think Bonta may lead to the revival of McIntyre---or at least opponents of broad disclosure laws will push the point.



In practice, in cases like McConnell, Citizens United, and even Doe v. Reed, the Court did not rely on McIntyre or change what “exacting scrutiny” has meant in practice. Bonta does so.





From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of "Kogan, Vladimir" <kogan.18 at osu.edu>
Date: Friday, November 19, 2021 at 7:24 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Question about AFP v. Bonta and "exacting scrutiny"



A question I’m hoping the folks here can help me with: My understanding is that one of the criticisms of the majority opinion in Americans for Prosperity v. Bonta (2021) is that it changes the definition of “exacting scrutiny” to require narrow tailoring even in the absence of evidence that there are any real First Amendment burdens as a result of the required disclosures. The dissenting opinion really hammers on this point, and I know Rick Hasen has written on this before as well.



I’m curious how that criticism can be squared with McIntyre v. Ohio Elections Commission (1995). As far as I understand, poor old Mrs. McIntyre did not present any evidence that she faced a risk of physical harm or boycotts. The only burden was the disclosure itself — being forced to add her name to her handbill when she didn’t feel like doing so. Yet Justice Stevens’ majority opinion seemed to apply the same definition of “exacting scrutiny” as the AFP v. Bonta majority, including the requirement for narrow tailoring: “When a law burdens core political speech, we  apply ‘exacting scrutiny,' and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest.”



Am I missing something important in the criticism of the AFP v. Bonta opinion?



Thanks in advance!



Vlad Kogan



[The Ohio State University]
Vladimir Kogan, Associate Professor and Director of Undergraduate Studies
Department of Political Science

2004 Derby Hall | 154 N. Oval Mall, Columbus, OH 43210-1373

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