The statements at issue:
“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 speech is coming from….Now, you are entitled to know where the speech is coming from, you know, information as to who contributed what.”
– Supreme Court Justice Antonin Scalia, in a televised interview July 18, on the Cable News Network program, “Piers Morgan Tonight”
“It is important to remember why this anonymity [for political donors] exists. As the civil rights movement was gaining steam in the late 1950s, opponents of the movement’s noble goals tried to silence supporters with government-mandated membership disclosure regimes. In 1958, the Supreme Court correctly sided with the NAACP in NAACP v. Alabama, ensuring NAACP supporters could maintain anonymity so they would not be subject to personal, political, or commercial attacks.”
– Matt Kibbe, president and CEO of FreedomWorks, a conservative non-profit organization, in an open letter to his members July 16, urging them to work against congressional approval of a bill to compel public disclosure of the identities of donors to activist organizations. (The bill was twice blocked in the Senate by Republican filibusters.)
We checked the Constitution, and…
For more than two years, Americans have debated—sometimes heatedly—whether the Constitution should permit huge sums of money to flow into the nation’s political campaigns. There has even been talk of a constitutional amendment to curb it. The Supreme Court ignited, but did not settle, that debate with its 2010 ruling in Citizens United v. Federal Election Commission.
But, lately, an equally hot debate has begun over the anonymity of those who donate that money. The adversaries are equally persuaded that the Constitution is on their side.
About Constitution Check
- In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.
Advocates of privacy insist that the Supreme Court has embraced the privacy of an organization’s lists of members as a way to head off intimidation that will interfere with the First Amendment right to band together to promote political causes. Advocates of disclosure contend that the Supreme Court has long supported disclosure of campaign finances as part of the voters’ First Amendment right to know who is trying to influence their votes.
As is often the case is constitutional argument, each side can find in Supreme Court opinions truly ringing declarations for their interpretation.
A favorite of privacy advocates is this from the Supreme Court’s 1958 decision in the case involving Alabama’s attempt to find out who belonged to the NAACP: “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute an effective restraint on freedom of association.”
And a favorite of disclosure advocates is this from Justice Scalia in a 2010 decision (Doe v. Reed) upholding the public disclosure of signers of petitions supporting a ballot measure in Washington State: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
Who has the better of the argument? The ultimate answer probably cannot be found in the Constitution, because the nation’s founding document seeks more to create the opportunity to have democratic participation than to dictate all of the specific rules to control it. Justices often talk about how the Constitution allows for some “play in the joints”—that is, flexibility.
The mere fact that each side in the anonymity debate can easily point to constitutional statements that go their way suggests that the answer lies elsewhere.
The most likely place to look for it is in one’s own theory of how democracy is supposed to work. What are the ingredients of political transparency—that is, how much information do voters really need in order to make choices about how they cast their ballots? If an organization is asking for their vote, do voters need to know who put money into that organization? Are the organization’s public statements of what it wants sufficient information? What does a voter learn from the name and other identifying information about a donor?
Since donations are considered to be a way to express one’s political preferences, what does it take to encourage people to keep giving money? What role does donor anonymity play in donor participation? How real is the prospect that being identified publicly will lead to intimidation, and what constitutes intimidation? When does exposure become coercive, or worse? What does Justice Scalia mean about the virtue of “civic courage”?
As Congress and the public go on debating the issue of privacy vs. transparency in campaign finance, the chances are great that each side will seek to appropriate the Constitution as its ally. The real debate, though, is over what attracts or discourages civic engagement.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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