SCOTUS just made Citizens United even worse

It’s a great day for dark money.

In its infamous decision in Citizens United v. FEC (2010), the Supreme Court tossed a bone to lawmakers seeking to regulate money in politics. With a few exceptions, Citizens United stripped the government of its power to limit the amount of spending on elections, especially by corporations. But the decision also gave the Court’s blessing to nearly all laws requiring campaigns and political organizations to disclose their donors.

They’ve now stripped most of the lingering meat off that bone.

On Thursday, the Court handed down a 6-3 decision in Americans for Prosperity Foundation v. Bonta, which flips Citizens United’s approach to disclosure laws on its head.

Before Thursday, the Court treated most disclosure laws as valid, and it typically only allowed plaintiffs who objected to such a law to seek an exemption from it — not to seek a court order striking down the law altogether. After Americans for Prosperity, there is now a presumption that all such laws are unconstitutional — although this presumption might be rebuttable in some cases.

As Justice Sonia Sotomayor writes in a dissenting opinion, “today’s analysis marks reporting and disclosure requirements with a bull’s-eye.” The upshot is that wealthy donors now have far more ability to shape American politics in secret — and that ability is only likely to grow as judges rely on the decision in Americans for Prosperity to strike down other donor disclosure laws.

Americans for Prosperity was brought by two conservative organizations — the Americans for Prosperity Foundation, a conservative advocacy group closely associated with the billionaire Koch brothers; and the Thomas More Law Center, a conservative law firm that claims it was formed to promote “America’s Judeo-Christian heritage” — against a California regulation requiring charities that wish to raise tax-deductible funds in California to disclose their largest contributors to the state attorney general’s office. So the actual law at issue in this case is fairly far afield from actual campaigns for political office.

But Chief Justice John Roberts’s opinion for himself and his fellow conservative justices has broad implications for all donor disclosure laws. It writes a new legal standard that will allow many future challenges to those laws to succeed, and that also will likely lead to sweeping victories for many of the plaintiffs in such suits.

Americans for Prosperity destroys a consensus that used to exist between liberal and conservative justices

Not that long ago, there was broad consensus that disclosure laws aren’t just permissible but essential in a democracy. As Justice Antonin Scalia wrote in a 2010 opinion:

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. 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. This does not resemble the Home of the Brave.

That consensus is now dead. Much of the Court’s right flank spent the oral argument in Americans for Prosperity rejecting Scalia’s “civic courage” in favor of a kind of paranoia over cancel culture. Justice Neil Gorsuch warned that the government could demand to see your “Christmas card lists” or to disclose your “dating history” to state regulators. Justice Samuel Alito spoke of “vandalism, death threats, physical violence, economic reprisals, [and] harassment in the workplace” directed against donors to an anti-LGBTQ campaign.

Under the previous consensus — the one announced in Citizens United — disclosure laws would be upheld so long as there is “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Moreover, while some disclosure laws might be vulnerable to challenge, the Court typically only permitted “as applied” challenges, meaning that the plaintiff could seek an exemption from a particular disclosure law, but the law would still apply to other individuals or organizations. In other words, most disclosure laws were valid, and the onus was on the donors who wanted secrecy to prove they individually deserved it.

The Court’s previous decisions, moreover, suggested that the bar for bringing such an as-applied challenge is fairly high. The seminal decision establishing that some organizations must be exempted from disclosure laws is NAACP v. Alabama ex rel. Patterson (1958), which was an attempt by the state of Alabama to force the NAACP — then the nation’s preeminent civil rights organization — to disclose its membership.

Had the NAACP done so, Alabama could have turned those names over to the Ku Klux Klan, among other things.

The plaintiffs in Americans for Prosperity do allege that they were the victims of death threats and other sorts of inexcusable activity — Roberts points a statement from someone working in the same building as the AFP Foundation, who said that he could “easily walk into [the CEO’s] office and slit his throat” — but nothing that even approaches the constant threat of terroristic violence that civil rights activists faced in the Jim Crow South.

In any event, as Sotomayor writes in her dissent, she “would be sympathetic” to a decision that “simply granted as-applied relief” to these plaintiffs, because of the threats they’ve faced. But the Court goes much further, striking down California’s disclosure rules on their face — meaning that they are now invalid for everyone.

The Court rewrites the legal standard governing disclosure laws

As mentioned above, Citizens United held that disclosure laws would be upheld so long as there is “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Roberts’s opinion abandons that standard, holding that disclosure laws must be “narrowly tailored” to advance the government’s interest in requiring disclosure.

Most first-year law students will immediately recognize the significance of these two words, “narrowly tailored,” as it is part of the test the Supreme Court applies when it wishes to impose a very high presumption that certain laws are unconstitutional. The Court, for example, imposes a narrow tailoring requirement on laws that discriminate on the basis of race.

Though Americans for Prosperity does not go quite as far as it could have — it does not apply a test known as “strict scrutiny,” the most skeptical test the Court applies in constitutional challenges — it comes pretty damn close.

When the Court applies a narrow tailoring requirement, it signals that a law will typically be struck down if the government could have advanced its goal in some other way. The practical impact of Americans for Prosperity is that all disclosure laws, including campaign disclosure laws, are now vulnerable if a plaintiff can think of some other hypothetical way that the government might have fostered the goal of transparency.

Roberts justified such a result because he claims that “disclosure requirements can chill association ‘[e]ven if there [is] no disclosure to the general public.’” He fears, in other words, a world in which donors will choose not to donate to groups like the Americans for Prosperity Foundation, out of fear that their names will be disclosed.

And then, of course, there is the shift from as-applied to facial challenges. Rather than simply doling out exemptions to disclosure laws, courts are now much more likely to strike them down in their entirety.

The decision is, simply put, a disaster for anyone hoping to know how wealthy donors influence American politics.