No Democracy Without Disclosure: Why the Supreme Court Must Protect the Public’s Right to Know Who’s Behind Dark Money

On January 6, 2021, in the hours before many of the President’s supporters stormed the Capitol in a violent effort to halt Congress’s certification of the Electoral College votes, President Trump spoke at the “March to Save America” rally in Washington’s Ellipse. To the agitated crowd, he urged his supporters to march on the U.S. Capitol and “fight like hell.” In the months since the deadly January 6 riots at the Capitol, some details have become clear. Law enforcement has identified and arrested some suspects, and reporters have analyzed footage from the event to understand how the protesters breached Capitol security.[1] But one crucial detail remains unknown: who organized the rally that precipitated the riots?

We only know the start of the answer. The rally in the Ellipse was arranged and funded by the 501(c)(4) group Women for America First. Unlike super PACs, which are required to disclose their donors, groups like Women for America First can keep their funders secret.

A complete understanding of the events of January 6, including who sponsored the rally and what messages or goals they were advancing, is vital not only for fostering an informed public debate, but also for preserving our democratic system. But dark money groups are now in the Supreme Court arguing for a sweeping ruling that would let them keep their funding sources hidden from the public. If they get their way, the public will be deprived of the information necessary to understand the funding sources behind speech—including the sources behind events like the “March to Save America.”

That’s why, as the Clinic argued in an amicus brief filed on behalf of the Floyd Abrams Institute for Freedom of Expression in Americans For Prosperity Foundation v. Rodriquez, the Court must not issue the sweeping ruling that dark money groups are seeking. Instead, the Court should recognize the public’s First Amendment interest in knowing the sources of speech, as this disclosure promotes an informed electorate and enhances their ability to evaluate the content of the speech itself.

If donor disclosure requirements for 501(c)(4) organizations are softened instead of strengthened, the public will be deprived of information crucial to its understanding and ability to evaluate arguments in important community discussions. Debates involving immigration policy offer a prime example. Cordelia Scaife May almost single-handedly funded the development of modern conservative immigration policies, all the while keeping her involvement private.[2] Only after some of May’s personal papers were released posthumously, did the public become aware that “she bankrolled the founding and operation of the nation’s three largest restrictionist groups—the Federation for American Immigration Reform, NumbersUSA and the Center for Immigration Studies—as well as dozens of smaller ones.”[3] In 1996, May founded the Colcom Foundation, a 501(c)(3) organization, which continues to fund nearly all large conservative immigration advocacy and policy groups, almost two decades after her death.[4] When reviewing the immigration policies advanced by those various groups, the public might evaluate them differently, given the knowledge that the advocacy groups were all funded by the same individual rather than a groundswell of many Americans supporting the same position.

May’s example illustrates how a small number of people—or even just one—can have a large impact on our political landscape and public discourse, with critical consequences resulting both inside and outside of the electoral process. And knowing the identity of such an influential speaker can reveal information, such as political or financial motives or a particular subject-matter expertise, that can change how we view their message and engage with it. Disclosure equips people with the tools to be more informed and prepared for participating in public discussions on important issues. And though the Supreme Court has typically addressed the public’s First Amendment right to disclosure issues inside an electoral context, it has never limited that interest to this context.

On Monday, the Supreme Court will hear oral argument in Americans for Prosperity Foundation v. Rodriguez, a case on appeal from the Ninth Circuit that revolves around a California disclosure law. In California, nonprofits must give the Attorney General a copy of their Schedule B’s — forms required by the IRS that, for most nonprofits, disclose “the names and addresses of all persons that contributed . . . $5,000 or more (in money or other property) during the taxable year.”[5] But for some groups, including the petitioners in this case, Americans for Prosperity and Thomas More Law Center, special rules apply, so they “need only ‘provide the name and address of a person who contributed . . . in excess of 2 percent of the total contributions . . . received by the organization during the year.’”[6] Under these requirements, Americans For Prosperity would have been required to report “no more than [ten] contributors” and the Thomas More Law Center “no more than seven contributors” “for any year between 2010 and 2015.”[7]

Thomas More argues that such disclosure is “dangerous.”[8] It says donors do not want their names or information public because they want to avoid receiving requests for donations from other organizations or being subject to harassment,[9] or they might like to stay anonymous for religious reasons.[10] Thomas More also emphasizes the tradition of anonymous advocacy by the Founding generation, especially to prevent an intolerant society from suppressing ideas or retaliating against the unpopular.[11] Both petitioners argue that the Ninth Circuit should have applied a stricter standard, with Americans for Prosperity claiming that exacting scrutiny is appropriate. But Thomas More argues that the most restrictive standard, strict scrutiny, should apply instead.[12] Exacting scrutiny, they claim, does not hold outside the electoral context, and the language in NAACP v. Alabama, which they argue applies in this case, mirrors strict scrutiny rather than a lower standard.[13] In contrast, Americans for Prosperity acknowledges that NAACP requires exacting scrutiny, while still arguing that this test is stricter than the one the Ninth Circuit applied, as the standard still requires narrow tailoring.[14]

Scores of amici filed briefs in the Supreme Court in support of Americans for Prosperity Foundation, Thomas More Law Center. Some of the amici seek an extremely broad ruling from the Court. For instance, the Free Speech Coalition, in its brief, stated, “States should not impose such disclosure requirements on any nonprofit organizations. Nor should courts evaluate such requirements through the use of any ‘interest balancing test,’ or any ‘standard of review’—whether it be ‘exacting scrutiny’ or ‘strict scrutiny.’”[15] An overbroad ruling could invalidate any nonprofit disclosure regime for any purpose, not just California’s current disclosure law for law enforcement purposes.

But even if the Court ultimately strikes down California’s iteration of the donor disclosure requirement, the Court could—and, as the Clinic’s brief argues, should — rule narrowly. The Clinic’s brief argues that donor disclosure regimes serve purposes outside of the narrow law enforcement interest California advances in this case. Nonprofit donor disclosures, when made public, serve important First Amendment interests by helping American citizens become more informed consumers of the political messaging that inundates our lives, even outside of election cycles.

Both inside and outside of the election context, donor disclosure assists “the people in our democracy [who] are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments,” and therefore “[i]dentification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected.”[16] Nonprofits like 501(c)(3) and 501(c)(4) organizations are key players in our political ecosystem. Like Women for America First, these groups have the power to dramatically affect politics by amplifying certain messages (for instance, falsely claiming that the 2020 presidential election was stolen due to rampant voter fraud), even if they aren’t explicitly endorsing a political candidate. It is important that members of the public are equipped with the information they need to weigh the claims advanced by these organizations.

This First Amendment informational interest served by disclosure has long been recognized by the Supreme Court. In a line of campaign finance cases from Buckley to Citizens United, the Court has recognized the importance of disclosure both in and outside of the electoral context. In Buckley v. American Constitutional Law Foundation, the Court recognized that a law requiring disclosure of all contributors to ballot initiatives “responds to [the] substantial state interest” of “disclosure as a control or check on domination of the initiative process by affluent special interest groups.”[17] In Citizens United, an 8-1 majority of the Court upheld donor disclosure requirements, noting that disclosing the speaker behind political communications enables the public “to make informed choices in the political marketplace.”[18] Moreover, nothing in the language of the court opinions limits the First Amendment informational interest solely to the electoral context. In fact, the Court has upheld disclosure regimes in the lobbying context as well, in United States v. Harriss.[19]

Time and time again, the Supreme Court has recognized that our political system benefits when there is more disclosure, rather than less—more sunlight on the forces who seek to influence our political system, more awareness of the moneyed interests who want to manipulate public opinion to serve their own ends.

As Justice Scalia powerfully stated in his concurrence in Doe v. Reed, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”[20] A society that “campaigns anonymously . . . does not resemble the Home of the Brave.”[21] For participants in our political system, disclosure ought to be the price of admission.