Sen. Charles E. Schumer, D-N.Y., is a Ferrari of rhetoric, accelerating lickety-split down the hyperbole highway when disappointed by the Supreme Court.
So he called “jaw-dropping” the court’s recent 6-to-3 ruling striking down California’s law requiring charities operating there to report to the state’s attorney general the identities of major donors. California, which is supposed to keep these identities confidential, claims to have rectified the causes of its failures to do so.
Writing for the majority, Chief Justice John G. Roberts Jr. said this law could have a “deterrent” effect, discouraging individuals from exercising the associational rights protected by the First Amendment. He should have said that deterrence of speech is an announced purpose of many disclosure requirements.
In 2010, the senator who introduced the Disclose Act (Democracy Is Strengthened by Casting Light on Spending in Elections; legislators adore cute acronyms) promised that compelling the disclosure of the identities of anonymous contributors to political advocacy groups would have a “deterrent effect,” discouraging such contributions. (This senator calls such contributions “dark money” and presumably regrets the torrent of it supporting his party.)
Four years later, this senator was candid about aiming to chill political speech: “When somebody is trying to influence government for their purposes, directly with ads and everything else, it’s good to have a deterrent effect.”
The senator who was unhappy about people trying to influence their government – the senator eager to reduce the amount of political speech, which all political contributions fund, directly or indirectly – was Schumer.
Roberts noted that “the gravity of the privacy concerns” surrounding the California case explained the hundreds of organizations, spanning the ideological spectrum, who submitted briefs urging the court to defend privacy against compelled disclosure. “The deterrent effect feared by these organizations,” Roberts wrote, “is real and pervasive.”
Schumer will not be deterred from his assault on privacy. He has given the honorific designation S.1 to a bill with 800-plus pages of regulations of political activities, including disclosure provisions that are not directly affected by the court’s overturning of California’s attack on the privacy of donors to charities. But the ruling against California’s law pertaining to charities indicates the constitutional vulnerability of S.1’s anti-privacy provisions in this court.
Since 1976, the court has recognized a government interest in the disclosure of the sources of political campaign contributions (to provide information to voters, and for enforcement of contribution limits). But the court’s decision last week underscores its belief that compelled disclosure generally implicates First Amendment rights.
The court has affirmed both the right to speak anonymously and the public’s interest in disclosing the identities of donors to political campaigns. It is, however, disproportionate to give campaign transparency a moral, semiconstitutional status comparable to that of the most fundamental constitutional right. This is particularly so given the absence of substantial evidence that disclosure of donors’ identities influences voters’ behavior.
In the context of today’s cancel culture, the court is properly cognizant of the propensity of fervid factions to try, often successfully, to destroy the reputations and even the livelihoods of people who advocate policies the destroyers dislike. The court understood this in 1958, when the civil rights movement was acquiring momentum. It struck down an Alabama demand that the state chapter of the NAACP disclose the names and addresses of its members. The court recognized that privacy can protect persons engaged in political advocacy from punitive, including violent, actions.
Justice Sonia Sotomayor, dissenting, argued against applying the 1958 principle to the 2021 plaintiffs – two conservative charities operating in an almost monochrome blue state. She said privacy matters for “dissident” groups that are vulnerable to retaliation, but not for groups advocating “mainstream” views. Can she suggest legal language to distinguish the degrees of privacy that should be accorded to particular groups, depending on their degrees of deviation from the “mainstream” (as defined by whom?) in particular states? Does she know that in 2008 some Californians were harassed and materially injured because of their disclosed contributions to a referendum campaign to amend the state constitution to prohibit same-sex marriages? (The amendment was then mainstream enough to pass.)
Like most fads among political fanatics, today’s cancel culture will recede. Its most lasting effect might be the court’s acknowledgment of it in a precedent that strengthens protections for free political speech. Such speech is never without opponents, who today include most congressional Democrats, with their itch to regulate everything, and their Schumeresque desire to use anti-privacy disclosure regulations to deter speech that displeases them.