I think Thomas Jefferson would have said the more speech, the better. That’s what the First Amendment is all about. So long as the people know where the speech is coming from. … You are entitled to know where the speech is coming from — you know, information as to who contributed what.
Antonin Scalia, bless his heart, is on a book tour, which he kicked off yesterday in an interview with Piers Morgan of CNN. The online and print headlines, predictably (both substantively and procedurally, as lawyers would say), mostly read along the lines of “Scalia Says He Had No ‘Falling Out’ With Chief Justice
” (Adam Liptak, New York Times) and “Scalia says no ‘falling out’ with Roberts” (Jesse Holland, Associated Press). Well, of course
that would be the attention-getting subject of the interview. (Procedurally.) And, of course
Scalia’s had no lasting falling out with Roberts. (Substantively.)
And, of course that would be the subject of the headlines and the opening paragraphs of news reports on the interview.
But these headlines and opening paragraphs bury the lede. Which is that the Disclose Act, which would require disclosure of the identity of all contributors to purportedly-independent campaign-expenditure groups, and of the amounts contributed—the enactment of which congressional Republicans keep blocking—is, it turns out, unnecessary. As the Times’ Liptak notes, the proposition that “[y]ou are entitled to know where the speech is coming from — you know, information as to who contributed what” is actually part of Citizens United itself; eight justices (all but Thomas) endorsed this in that case, as a rule of First Amendment law. The First Amendment right of the Koch brothers and the Chamber of Commerce and ExxonMobil to make “independent” campaign expenditures via nonprofit tax-exempt “social welfare” advocacy groups depends upon disclosure not just that the nonprofit tax-exempt “social welfare” advocacy group paid for the ad but also that the Kochs, the Chamber of Commerce, and ExxonMobil donated a specified amount to the nonprofit tax-exempt “social welfare” advocacy group.*
So sorry, Karl Rove. But such is life.
Or at least it will be, sometime before the November election, I think. Because all that is necessary now for this disclosure to be compelled is for the Obama campaign, or the DNC, or the campaign of any Dem candidate who’s being attacked in “independent” campaign ads—or, for that matter, even the news media—to file lawsuits invoking none other than Citizens United
, asking the courts to order the disclosure of that information. Because of the shortness of time before the election, and because of the obvious relevance of this to the November elections—and because this is purely a legal issue, requiring very little factual record—this would proceed through the courts very quickly.
Liptak also mentions Scalia’s invocation of what even Scalia surely knows is a pretty porous defense of Citizens United:
Mr. Morgan argued that spending may be regulated because it is not speech.
Justice Scalia responded that money facilitates speech and suggested that it would be unconstitutional to tell a newspaper publisher that “you can only spend so much money in the publication of your newspaper.”
Mr. Morgan said that was different, as “newspaper publishers aren’t buying elections.”
Justice Scalia said that “newspapers endorse political candidates all the time,” adding that “they’re almost in the business of doing that.”
Yes, indeed; they almost are in the business of doing that. But the most jaw-dropping, and mocked, part of the Citizens United opinion is its out-of-nowhere—and clearly false—statement of fact upon which the opinion’s outcome relies: The five justices said they “find” as a matter of fact that unlimited “independent” campaign expenditures gives rise neither to corruption nor to the appearance of it, and therefore the First Amendment free-speech interest trumps the interest in allowing statutory limits on these expenditures. This is, in other words, not like falsely shouting “Fire” in a crowded theater. Or like inciting to riot. Or like ….
The New York Times and the National Review endorsements and commentary don’t operate as de factobribes, real or perceived by the public. Nor does anyone other than Scalia and his four cohorts pretend to think so.
About that independent-expenditures-give-rise-neither-to-corruption-nor-to-the-appearance-of-it thing, among those whose opinions the justices neglected to ask were the seven current justices on the Montana Supreme Court, and those justice famously begged to differ with the Citizens Unitedmajority on that point last December, in a case about a longstanding Montana campaign-expenditure statute. Six to one, they upheld the constitutionality of the Montana statute. The seventh justice dissented because of Citizens United’s clear mandate, but trashed the finding of fact as clearly false.
On June 25, the Citizens United majority summarily reversed the Montana Supreme Court. In a dissent joined by Ginsburg, Sotomayor and Kagan, Stephen Breyer acknowledged that the four dissenters could have forced the Court to have a full hearing on the case—full briefing and an oral argument—next term. But, he said, there would be no point to it, as the majority had made clear in discussing the Montana case that no member was willing to reconsider any part of the Citizens United ruling, including the ridiculous finding of fact.
It’s not hard to recognize the likelihood then that both Kennedy—the author of Citizens Unitedand apparently the force behind the deeply controversial decision by the majority to raise, on their own, the issue of the constitutionality of centerpiece of the McCain-Feingold statute rather than to just strike down the minor section of the statute the challengers had challenged as unconstitutional—and Roberts, who allowed this stunningly inappropriate judicial role, understand by now that, at least from the prospective of a vast majority of the public, the Citizens United-created status quo is simply untenable.
There appears to have been some horse-trading there, forced by the minority, who agreed to not force a full hearing in the Montana case
, American Tradition Partnership, Inc. v. Bullock
, thus relieving the majority from having to defend its indefensible finding of clearly-false fact. And in return, the majority agreed to interpret Citizens United
as mandating meaningful disclosure rather than just gimmicks for effective nondisclosure. And to do so informally, with enough time before this November’s election for it to actually matter.*
As someone who believes that the current system results in actual corruption and certainly the appearance of corruption, I think the minority got the better of the deal.
In any event, I don’t see how, in light of Scalia’s straight-from-the-horse’s-mouth public statement, lawsuits requesting immediate injunctive relief compelling disclosure could be legitimately denied.
*Obviously, this is speculation on my part. [Added Wed. at 11:36 a.m.]
**CORRECTION: Turns out that I was confusing super PACs with nonprofit tax-exempt “social welfare” advocacy groups. (No surprise, I guess; I’m neither an election-law specialist nor a tax-law specialist.) So I’ve changed “super PACs” to “nonprofit tax-exempt ‘social welfare’ advocacy groups.” This matters only because super PACs already have to disclose their donors. Nonprofit tax-exempt “social welfare” advocacy groups don’t, and so the Disclose Act targeted the latter but not the former in this respect. The Disclose Act also, though, would have required certain disclosures in each ad itself, whether the ad was sponsored by a super PAC or a “social welfare” advocacy group. [Corrected Fri. at 6:38 p.m.]
UPDATE: Hmm. Here’s
an article from the Sunlight Foundation published on July 13 about the Disclose Act. The article suggests that super PACs do indeed legally hide the identity of their donors. [Fri. at 8:37 p.m.] [Ah. There’s
the link; I didn’t put the link in last night when I posted the update.]