In a 1995 case, Justice Antonin Scalia voted to uphold a statute banning anonymous campaign literature. In 2003, voting to strike down restrictions on campaign advertisements, he wrote that the influence of donors “are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician’s fear of being portrayed as ‘in the pocket’ of so-called moneyed interests.” In 2010, he argued that signers of a referendum petition had no right to stop the state from disclosing their names. Their fear of repercussions was beside the point: “[H]arsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance.” The alternative, he concluded with a flourish, was giving up on being “the Home of the Brave.”
Now the Supreme Court is considering a challenge, backed mostly although not exclusively by conservatives, to a California law that requires nonprofits to disclose their donors. Mark Joseph Stern, drawing on the cases just mentioned, writes in Slate that “Scalia would be aghast” at their arguments. His own forceful conclusion: “[T[he conservative majority is heading in a direction that, according to Scalia, spells nothing less than doom for American democracy.”
On a first read of Stern’s article, I thought he might have a good point. On a second read, and after looking at those Scalia opinions, I think he is wrong.
In the three cases in which Scalia spoke positively about mandatory disclosure, the context was lawmaking and elections. Section II of his 1995 opinion turns entirely on “the protection of the electoral process,” for which “no justification for regulation is more compelling.” The relevant section of the 2003 opinion, in language that Stern quotes, refers to “campaign-expenditure disclosure rules.” (The same sentence, quoted above, also refers to the effect of disclosure on the politicians who benefit from the expenditures.) The 2010 opinion emphasizes that a voter who signs a referendum petition in Washington state is “exercising legislative power,” an inherently public act. The sentence before “the Home of the Brave” reads thus: “For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism” (citation to the 1995 case omitted).
California’s law raises different issues than were at play in those prior cases because it compels disclosure of nonprofit donors whether or not the nonprofit is directly making law or running campaign advertisements. It compels disclosure of donors to organizations that are entirely apolitical. The electoral-integrity interests that helped to justify compelled disclosure in those cases are present here in, at best, highly attenuated form. I don’t think Scalia would be aghast to see the conservative justices on today’s Court draw a distinction.