Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.
As previously discussed, the Supreme Court has recognized a First Amendment interest in the privacy of one’s associations and held that compelled disclosure of an organization’s members can chill that protected association.1 In 1976, in Buckley v. Valeo, the Court extended this reasoning to disclosure of a political candidate’s financial contributors required by federal campaign finance laws.2 The Court observed that the “invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for '[f]inancial transactions can reveal much about a person’s activities, associations, and beliefs.’” 3
In view of these considerations, the Court applied a heightened standard of review called “exacting scrutiny,” which the Court derived from its analysis in NAACP v. Alabama ex rel. Patterson.4 Under Buckley's formulation of exacting scrutiny, the government must show a “substantial relation” between a “subordinating” state interest and the information required to be disclosed.5 Ultimately, the Court in Buckley concluded that the federal government’s interests in an informed electorate, deterring corruption, and detecting violations of certain contribution limits outweighed the right to contribute anonymously in that case.6
The Court reached a different conclusion with respect to state campaign finance disclosures as applied to “the Socialist Workers Party, a minor political party which historically has been the object of harassment by government officials and private parties.” 7 In reasoning analogous to NAACP, the Court found that disclosure of either the parties’ contributors or the recipients of their campaign disbursements would “subject those persons identified to the reasonable probability of threats, harassment, or reprisal.” 8
The Court also applied exacting scrutiny in a 2010 case involving the disclosure of petition sponsors rather than donors.9 In Doe v. Reed, voters seeking to challenge a state law through the referendum process had to submit a petition with the requisite number of signatures to the secretary of state.10 Such petitions were subject to public disclosure and included the names and addresses of signatories.11 The Court held that petition activity is protected by the First Amendment and that disclosure requirements in the electoral context are subject to exacting scrutiny.12 Balancing the relevant interests, the Court held that “preserving the integrity of the electoral process” by combating “petition-related fraud” was a sufficiently important purpose to justify the “modest burdens” that disclosure might cause.13
The balance of interests tilted in favor of the organizations and their donors in the Court’s 2021 decision in Americans for Prosperity Foundation v. Bonta.14 That case involved a California regulation requiring charities soliciting funds in the state to disclose to the State Attorney General the names, addresses, and total contributions of an organization’s significant donors.15 Although the Justices in the majority divided over the applicable level of First Amendment scrutiny,16 they agreed that under exacting scrutiny, the government must “narrowly tailor” a disclosure requirement to the asserted governmental interest.17 The majority concluded that California’s disclosure rule failed this requirement because of the “dramatic mismatch” between the state’s interest in preventing charitable fraud and its “up-front,” “blanket demand” for the disclosure.18
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Footnotes
- 1
- See Amdt1.8.3.2 Disclosure of Membership Lists.
- 2
- 424 U.S. 1, 65–66 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act(BCRA) of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codified as amended in scattered sections of 2, 8, 18, 28, 36, 47 U.S.C.). The Court determined that the challenged contribution and expenditure limitations also implicated the freedom of association, as well as the freedom of speech; its holdings on these limitations are discussed in Freedom of Speech: Campaign Finance and the Electoral Process, Amdt1.7.11.1 Overview of Campaign Finance to Amdt1.7.11.6 Legislative Investigations.
- 3
- Id. at 66 (quoting Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 78–79 (1974) (Powell, J., concurring)).
- 4
- Id. at 64 (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)).
- 5
- Id.
- 6
- Id. at 68.
- 7
- Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87, 88 (1982).
- 8
- Id. at 101–02.
- 9
- Doe v. Reed, 561 U.S. 186 (2010).
- 10
- Id. at 190–91.
- 11
- Id. at 192–93.
- 12
- Id. at 195–96. “Exacting scrutiny” is a First Amendment standard of review developed to evaluate disclosures in the election context. Id. at 196 (citing Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam), superseded by statute, BCRA of 2002, 116 Stat. 81).
- 13
- Id. at 198–201.
- 14
- No. 19-251, slip op. at 19 (U.S. July 1, 2021).
- 15
- Id. at 2.
- 16
- The plurality suggested that any disclosure requirement affecting association should receive exacting scrutiny. Id. at 7–8 (plurality opinion). Several Justices whose concurrence was necessary to the result in Bonta questioned this conclusion. See id. at 1–4 (Thomas, J., concurring in part and concurring in the judgment) (arguing that the Court’s precedents require application of strict scrutiny, a higher standard), and id. at 2 (Alito, J., concurring in part and concurring in the judgment) (stating that he and Justice Gorsuch are “not prepared at this time to hold that a single standard applies to all disclosure requirements” ).
- 17
- Id. at 9–11 (majority opinion).
- 18
- Id. at 12–14.