Skip to main content

New top story from Time: How a Supreme Court Case About Nonprofit Donations Could Affect America’s Elections

https://ift.tt/3aEHRmt

Upon first glance, the U.S. Supreme Court case Americans for Prosperity Foundation v. Rodriquez might not seem like it could impact elections.

The case, which will be argued before the Supreme Court Monday, examines the constitutionality of a California regulation requiring nonprofits wishing to raise money in the state to disclose their largest donors to the state Attorney General. But the stakes could be much higher for American democracy if the Court rules broadly, so the case has drawn intense interest from leaders and advocacy groups on both sides of the political spectrum, forging unlikely alliances in the fight over when anonymous donations are protected by the Constitution.

“We are engaged in a quiet battle with dark money forces that seek to exert broad and often secret control within government, and this case could dramatically strengthen their power,” Sen. Sheldon Whitehouse, a Democrat from Rhode Island, tells TIME.

The conservative nonprofit Americans for Prosperity Foundation—which has the backing of Republican mega-donor Charles Koch—brought the lawsuit in 2014, arguing that requiring them to disclose their major donors violates their First Amendment right to freedom of association. (Conservative law firm Thomas More Law Center filed a similar suit, which was consolidated with this one.) On the other side, California’s Attorney General argues that the government needs to collect donor names to prevent fraud, but keeps those names confidential.

Regardless of what happens to California’s policy after the Supreme Court rules later this year, the larger effects of the case will hinge in part on what standard of judicial scrutiny the Court uses to make its evaluation. Financial disclosure laws typically are evaluated under “exacting scrutiny,” a roughly mid-level standard. The 9th Circuit sided with California in 2019, ruling that the regulation held up under this standard of review because the state had proven it was substantially related to its interest in preventing fraud. But the plaintiffs argue the policy must be reviewed under a higher standard, and if the justices agree, some advocates worry it could make it easier to strike down other disclosure laws in the future.

As it stands now, Supreme Court precedent allows for unlimited corporate spending in elections, with some restrictions and donor disclosure requirements for groups like Super PACs. The outcome of Americans for Prosperity Foundation could indicate if similar requirements might be in danger in the future with three new justices appointed by former President Donald Trump on the bench.

“Ultimately, what’s at stake is the potential for chipping away at transparency that is required by our campaign finance disclosure laws,” says Carol Moon Goldberg, the president of the League of Women Voters of California.

Unusual coalitions

The roots of the issue go back to protecting the safety of Black civil rights activists in the 1950s.

In 1958, the Supreme Court ruled in NAACP v. Alabama ex rel. Patterson that Alabama could not require the NAACP to share the names of its members because that could expose them to “possibilities of harassment and reprisal.” In subsequent rulings, the Court held that requiring groups to disclose names of donors can have a “chilling effect,” meaning that people might be less likely to donate if they think others could find out they did so. Certain groups can also be granted exemptions if they can prove they’re at risk of harassment if they disclose names.

Now, Americans for Prosperity Foundation argues the California policy could create such a chilling effect, and is asking for an exemption even if the Court doesn’t strike the rule down entirely. The group points to the fact that a portion of confidential records were accidentally made accessible on the state’s website, and one of their expert witnesses was able to hack into it and access even more private information. The state maintains those security holes have since been fixed.

“Stripping citizens of their privacy is a tool wielded by some in political power to silence their opposition and stifle individuals from engaging in educational and charitable efforts,” said Americans for Prosperity Foundation CEO Emily Seidel.

The American Civil Liberties Union (ACLU), the NAACP Legal Defense and Education Fund, The Knight First Amendment Institute at Columbia University, the Human Rights Campaign and PEN America have all filed a brief agreeing that requiring the plaintiffs to disclose their donors under these circumstances would violate their First Amendment rights. In fact, more than 60 amicus briefs have been filed in the case, with voting rights groups, Senators and even states weighing in. But progressive groups are split on the issue, and the First Amendment questions at play have created unusual coalitions of conservative libertarian groups and left-leaning groups that advocate for individual liberties.

“Although the ACLU does not agree with the Americans for Prosperity Foundation on every issue, or perhaps even most issues, we thought this was an important case to stand up for the First Amendment right of association,” says Brian Hauss, a staff attorney with the ACLU Speech, Privacy and Technology Project.

Some voting rights groups, on the other hand, including the League of Women Voters of California, have filed a brief urging the Court to side with California, arguing the state has proven collecting donor names, which are supposed to be kept confidential, is necessary for preventing fraud. Whitehouse and 14 other Democratic Senators have also filed a brief in the case supporting California’s position.

But looming over both sides are questions about how these positions on donor transparency could impact civic life. The ACLU’s brief urges the Court to not issue “overbroad pronouncements” that would impact disclosure requirements in other contexts, and when asked whether they are concerned about the consequences the case could have on campaign finance law, Hauss says that while that’s “a totally understandable concern,” he does not believe campaign finance laws will be affected by the case.

Others are more skeptical. “The concern is that the court could use this pretty limited law as an opportunity to opine more broadly on the First Amendment rights of anonymity,” says Tara Malloy, the senior director of appellate litigation and strategy at Campaign Legal Center (CLC), which has signed onto the brief with the League of Women Voters of California urging the court to uphold the policy. While the plaintiffs have said they have no desire to strike down electoral disclosure laws, “the type of legal arguments they’re making seem to threaten those laws,” Malloy says. “They’re arguing that the court be more skeptical, really, of disclosure and review it more carefully, which has broader repercussions.”

Campaign finance implications

The Supreme Court will consider this case more than a decade after its last major donor disclosure decision, which opened the floodgates to enormous sums of anonymous money influencing elections.

In 2010’s landmark campaign finance case Citizens United v. FEC, the Supreme Court struck down limitations on corporate spending in political communications. While Citizens United also affirmed financial disclosure requirements in certain instances, it’s unclear how the newest conservative justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—might feel about such requirements, says Richard Briffault, a professor at Columbia Law School.

Sen. Whitehouse argues those three justices “were put on the court through a process that was heavily controlled by dark money interests,” referring in part to campaigns in support of their confirmations by 501(c)(4) groups, which are not legally required to disclose their donors. On April 16, Whitehouse, along with Democrats Sen. Richard Blumenthal and Rep. Hank Johnson, sent a letter to Barrett urging her to recuse herself from the case, pointing out that Americans for Prosperity, the 501(c)(4) sister organization of Americans for Prosperity Foundation, launched a campaign last fall urging Senators to vote for her confirmation. The Hill reported at the time that the organization said it intended to spend “in the seven figures” on the confirmation battle. None of the justices have indicated that they will recuse themselves, and the Supreme Court did not respond to a request for comment on the letter.

Oral arguments are set for April 26, and a decision will likely come by June. How the justices rule—and the precedent they set for reviewing financial disclosure requirements in the future—could further affirm or erode some organizations’ ability to keep their donors private.

“The case is a part of the never-ending efforts on [the part of] advocates of dark money spending to cloak their behavior in even more secrecy,” says Norman Eisen, a senior fellow at the Brookings Institution who served as President Barack Obama’s chief ethics lawyer. If the Supreme Court believes disclosure laws need to clear a higher constitutional bar, Eisen says, “I think the advocates of secrecy would try to take the ball and run with it.”

Comments

Popular posts from this blog

New top story from Time: How Liberal White America Turned Its Back on James Baldwin in the 1960s

https://ift.tt/2QBsNzv In discussions about race relations today, the works of James Baldwin continue to speak to the present, even decades after they were written. So it is worth remembering that, at the very height of his influence, Baldwin experienced the same frustration that some Black activists, particularly on campus, feel about white liberals today: their refusal to acknowledge their complicity in the regime of white supremacy. In Baldwin’s case, the liberal backlash was widespread, and effectively marginalized him for a time. The very first piece on the front page of the very first issue of The New York Review of Books , Feb. 1, 1963, was a review of Baldwin’s The Fire Next Time by F. W. Dupee of the Columbia English department. Dupee (a former Communist Party organizer) took exception to Baldwin’s apocalyptic tone. “Do I really want to be integrated into a burning house?” Baldwin had written. The answer, Dupee wrote, is that “[s]ince you have no other, yes; and t...

New top story from Time: President Trump’s Brother, Robert Trump, Dies at 71

https://ift.tt/3g1Evdc (NEW YORK) — President Donald Trump’s younger brother, Robert Trump, a businessman known for an even keel that seemed almost incompatible with the family name, died Saturday night after being hospitalized in New York, the president said in a statement. He was 71. The president visited his brother at a New York City hospital on Friday after White House officials said he had become seriously ill. Officials did not immediately release a cause of death. “It is with heavy heart I share that my wonderful brother, Robert, peacefully passed away tonight,” Donald Trump said in a statement. “He was not just my brother, he was my best friend. He will be greatly missed, but we will meet again. His memory will live on in my heart forever. Robert, I love you. Rest in peace.” The youngest of the Trump siblings had remained close to the 74-year-old president and, as recently as June, filed a lawsuit on behalf of the Trump family that unsuccessfully sought to stop ...

New top story from Time: The Rolling Stones Open Their American Tour, Paying Tribute to Drummer Charlie Watts

https://ift.tt/3o7cVTy ST. LOUIS — The Rolling Stones are touring again, this time without their heartbeat, or at least their backbeat. The legendary rockers launched their pandemic-delayed “No Filter” tour Sunday at the Dome at America’s Center in St. Louis without their drummer of nearly six decades. It was clear from the outset just how much the band members — and the fans — missed Charlie Watts, who died last month at age 80. Except for a private show in Massachusetts last week, the St. Louis concert was their first since Watts’ death. The show opened with an empty stage and only a drumbeat, with photos of Watts flashing on the video board. After the second song, a rousing rendition of “It’s Only Rock ‘N’ Roll (But I Like It),” Mick Jagger, Keith Richards and Ronnie Wood came to the front of the stage. Jagger and Richards clasped hands as they thanked fans for the outpouring of support and love for Watts. Jagger acknowledged it was emotional seeing the photos of Watts....

FOX NEWS: Intermittent fasting may cause muscle loss more than weight loss, study says Intermittent fasting might not be as healthy as some may have thought.

Intermittent fasting may cause muscle loss more than weight loss, study says Intermittent fasting might not be as healthy as some may have thought. via FOX NEWS https://ift.tt/2ShpJp3

10 Gujarat ATS personnel test coronavirus positive https://ift.tt/3hDP7kd

As many as 10 Gujarat ATS personnel, who were involved in an investigation into the alleged attempt to kill BJP leaders, have so far tested positive for coronavirus, an official said on Sunday.

New top story from Time: Jasper Johns: “Dying While on Assignment Doesn’t Seem Like a Bad Idea”

https://ift.tt/39PD2WS Jasper Johns, possibly America’s most famous living artist and still plying his trade at 91, launches two retrospectives on Sept. 29; one at the Whitney Museum of American Art in New York City and the other at the Philadelphia Museum of Art . The exhibitions, known collectively as Mind/Mirror, illuminate the through lines of Johns’ large body of work: his fascination with such everyday symbols as numbers, targets, maps and flags; his sometime habit of limiting his color palette to red, blue, yellow and orange; and his exploration of such techniques as collage, hatching and scale. One section of the Whitney is dedicated to his variations on the motif of a Savarin coffee can crammed with brushes, which is widely believed to be the artist’s way of representing himself. Johns, who famously destroyed all his prior work before painting his first flag, lives in Connecticut and rarely gives interviews. He answered questions from TIME via email. [time-brightco...

FOX NEWS: 6-year-old girl died after theme park ride operators failed to buckle her in: report A new report revealed the apparent cause of a tragic accident at a Colorado theme park earlier this month.

6-year-old girl died after theme park ride operators failed to buckle her in: report A new report revealed the apparent cause of a tragic accident at a Colorado theme park earlier this month. via FOX NEWS https://ift.tt/39Ix5eg

FOX NEWS: Top baby names list for 2021 reveals familiar trends For the second year in a row, these two names are the most popular for girls and boys – leading BabyCenter's Top 100 Baby Names list.

Top baby names list for 2021 reveals familiar trends For the second year in a row, these two names are the most popular for girls and boys – leading BabyCenter's Top 100 Baby Names list. via FOX NEWS https://ift.tt/2ZZEl3u

Punjab farmers stir is to siphon off taxpayers' Rs 6,500 crore: Vijay Sardana https://ift.tt/3fN9niY

Farmers' protest against the Centre's three agriculture laws on Monday entered the fifth day. The farmers are demanding from the government to withdraw the three laws which according to them is not in the interest of the farming community. However, noted agriculture sector expert and economist, Vijay Sardana, said that the agitation is not about the laws, but it is about the traders who will be at loss.

New top story from Time: I Left Poverty After Writing ‘Maid.’ But Poverty Never Left Me

https://ift.tt/3kXte3r I signed my first book contract without paying much attention to what it said. I didn’t know at the time that the book would be a best seller or that it would one day inspire a Netflix series . I just needed the money. I was a single mom with a 2-year-old and a 9-year-old, living in low-income housing, and because of a late paycheck, I hadn’t eaten much for a few weeks, subsisting on pizza I paid for with a check I knew would bounce. This wasn’t my first bout of hunger. I had been on food stamps and several other kinds of government assistance since finding out I was pregnant with my older child. My life as a mother had been one of skipping meals, always saving the “good” food, like fresh fruit, for the kids I told myself deserved it more than I did. The apartment was my saving grace. Housing security, after being homeless and forced to move more than a dozen times, was what I needed the most. Hunger I was O.K. with, but the fear of losing the home wher...