I am generally in very strong  agreement with Steve Hoersting about the need to update our protections against disruptive disclosure of political affiliations and to recognize that the cast of characters has changed somewhat in terms of the likely targets and victims of overly broad disclosure regimes.   But, having been there from the beginning of the ongoing battles between associational privacy rights and campaign finance disclosure, I did want to address one historical point  Steve made, namely, his observation that disclosure by independent groups was viewed as so benign that it was not challenged by the appellants in Buckley.  Au Contraire.

 

First, in 1972, four years before Buckley, the ACLU challenged the new disclosure provisions of the new FECA precisely because they applied to independent and non-partisan critics of government.  See United States v. National Committee for Impeachment; ACLU v. Jennings.  That litigation campaign was largely successful in getting the lower courts to limit the area of disclosure, basically, to what later became called Express Advocacy.

 

Second, as an ACLU lawyer, I helped organize a series of lawsuits by the Socialist Workers Party challenging the application of the disclosure provisions of the FECA to them, even though they were a party that ran candidates for office, on the grounds that the associational privacy rights of NAACP v. Alabama trumped the need to know even about contributions to and expenditures by political parties if they were of a controversial nature.  That campaign reached a partial victory in Buckley’s dictum that such a case might defeat disclosure, which dictum became law and reached successful fruition in Brown v. Socialist Workers ’74 Campaign Committee (Ohio), as Steve noted.

 

Third, as part of the post-Watergate FECA amendments of 1974 – the sweeping “reforms” that Buckley partly invalidated – Congress put in a rogue provision that required disclosure of any contributor who gave in excess of $100 to any issue organization that published information about the official records of political candidates.  This incumbent-protective piece of  business was challenged by NYCLU and other plaintiffs as part of the Buckley litigation, and was invalidated, unanimously, on First Amendment grounds by the District of Columbia Circuit, a court which upheld every other provision of the law except that one.   That issue advocacy disclosure provision became defunct since the government never appealed its invalidation. I had the primary responsibility for that part of the case.

 

Finally, in Buckley, we challenged disclosure across the board, both as it applied to  political parties and candidates – arguing that disclosure of small contributions in excess of $100 was too low even for mainstream parties and any amount was too high for contributions to controversial or minor parties – and as it applied to independent groups.   We did point out that the availability of more narrowly drawn disclosure requirements, focused on large contributions made to major party candidates, was a far less restrictive solution to corruption concerns than FECA’s limits on contributions and expenditures.   But we strongly argued that independent speech could not be subject either to expenditure limits – the Court agreed – or to disclosure requirements  – the Court disagreed, but held that only speech constituting Express Advocacy could be subjected to disclosure, not “issue speech” as it came to be called.  We of course know how potent the Express Advocacy limitation on disclosure requirements would become in campaign finance law for the next 25 years.

 

Please excuse the long-winded and self-referencing response, but, the appellants in Buckley most certainly did not accept as benign the requirement of disclosure of independent speech.  Rather we challenged it strenuously and with some degree of success. 

 

Joel Gora

Brooklyn Law School