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

Fri Nov 19 08:45:49 PST 2021

Rick is correct. If you’re a practitioner, and your client is looking down the barrel of a disclaimer violation, McIntyre really isn’t going to help you at all. And BCRA saw a significant expansion of both the form and substance of the disclaimer requirements, none of it limited by any court despite the holding in McIntyre.

However, I do wonder whether McIntyre may have subtly affected some of the agency decision-making on low-level applications of the requirement: excluding non-political committee emails and websites, setting a 500-recipient threshold for other applications of the requirement, the common and increased use of prosecutorial discretion to short-circuit enforcement for workaday disclaimer violations, and so forth. The FEC has done a reasonably prudent job over the past two decades of avoiding David v. Goliath fights over disclaimers like the one Mrs. McIntyre waged, where judicial intervention seems more likely.

=B.
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From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Rick Hasen
Sent: Friday, November 19, 2021 11:34 AM
To: Volokh, Eugene <VOLOKH at law.ucla.edu>; 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"

I was confining my response to the campaign finance cases, where I think it is fair to say that McIntyre has essentially been ignored.

From: "Volokh, Eugene" <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>>
Date: Friday, November 19, 2021 at 7:54 AM
To: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, "Kogan, Vladimir" <kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>>, Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: RE: [EL] Question about AFP v. Bonta and "exacting scrutiny"

               Wasn’t McIntyre relied on by the majority opinions in Watchtower Bible & Tract Society v. Village of Stratton and Buckley v. American Constitutional Law Foundation?

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Rick Hasen
Sent: Friday, November 19, 2021 7:38 AM
To: Kogan, Vladimir <kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>>; Election Law Listserv <law-election at uci.edu<mailto: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<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of "Kogan, Vladimir" <kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>>
Date: Friday, November 19, 2021 at 7:24 AM
To: Election Law Listserv <law-election at uci.edu<mailto: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]
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Department of Political Science
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