Litigation

Are Finance-Disclosure Requirements in Danger?

By Peter Hardin

When the Supreme Court knocked down corporate spending limits for political elections, it also signaled support for existing disclosure requirements. As a result, many critics of the recent Citizens United ruling found something to cheer about in the decision.

A leading election-law expert warns in an article in Slate, however, that the high court’s endorsement of disclosure rules could be eroded in an upcoming election-privacy case from Washington state. Richard L. Hasen of Loyola Law School paints a disturbing scenario in the article, entitled “Hushed Money/Could Karl Rove’s new 527 avoid campaign finance-disclosure requirements?”

In the Washington case (see Gavel Grab), a group supporting traditional marriage wants to keep secret the names of signers of a ballot initiative to repeal a pro-civil union gay rights measure. The group says disclosure would probably subject the signers to threats and harassment.

When donors face legitimate harassment threats for campaign contributions, the Supreme Court has recognized  an exemption from disclosure laws, Hasen writes. But there is no substance to the threat of harassment raised in the upcoming Supreme Court case, he notes, citing a friend-of-the-court brief. In it, political scientists searched for and could not find any reported threats to  a signer of a ballot measure petition in the past century.

Nonetheless, the high court in January  blocked plans for broadcasting proceedings in the trial of a lawsuit over the constitutionality of California?s ban on gay marriage–and it appeared swayed in part by foes of gay marriage who argued that they would be subject to harassment and threats if their testimony were broadcast.

“Extending the harassment exemption without actual evidence is a way to undermine disclosure laws without saying so,” Hasen writes. “And appealing to conservative justices’ sense of being under siege seems like a reasonable strategy to get there these days. It all shows that full campaign finance deregulation is on the march.”

To learn more about the Citizens United decision, including an amicus brief filed by Justice at Stake, see this JAS online resource page.

Full post as published by The Gavel on April 06, 2010 (boomark / email).