Embracing a Prospective First Amendment for Campaign Finance Disclosure

One of the silliest carve-outs (or exceptions) in modern campaign finance law is the so-called "Socialist Workers" exemption to campaign finance reporting. The Supreme Court ruled in the 1976 case Buckley v. Valeo that if certain groups could show retaliation and oppression due to their views, they could be exempted from disclosing their contributors publicly. The Socialist Workers Party achieved this in 1982 after prolonged litigation that also went to the Supreme Court. The Federal Election Commission recently renewed the SWP's exemption in 2013.

Other recent attempts to attain a similar exemption from "disclosure" have been denied and even ridiculed by courts. No less than Justice Antonin Scalia opined in Doe v. Reed that speakers should exhibit "civic courage," publicly stand by their beliefs, seek legal remedies if illegal retaliation occurs, and otherwise deal with criticism and the perfectly legal misfortunes that can come with it.

The reasons the Socialist Workers exemption is silly are numerous. First, the SWP retains their exemption even though their case dates back to events that occurred largely in the 1970s. Second, no one has ever attained an exemption at the federal level except the SWP, making it indeed the "Socialist Workers exemption." Finally, and most importantly, by the time one might obtain an exemption today the damage is done, and unlike in the 1970s, Internet disclosure is accessible almost anywhere in the world and practically eternal: once one is identified as a Socialist (or Republican, Democrat, Libertarian, PAC donor, or the like) a court cannot undo the bad results, especially when they occur years later.

The exemption needs to change. Courts should recognize that the prospective harms of disclosure are a legitimate concern for free speech and, thus, the First Amendment should rein in government's role in providing hit lists.

The Bill of Rights–the first ten amendments to our U.S. Constitution– make up an important check on government to be exercised by individuals. The First Amendment must be viewed not as a tool for retrospective correction, but prospective restraint on government power. This is why government cannot require large-dollar deposits for groups that wish to hold a demonstration in a public forum, or require months of advance notice to an agency for such a gathering, because such prior restraints abridge free speech. Similarly, Justice Kennedy reasoned in Citizens United that complex campaign finance reporting requirements "function as the equivalent of a prior restraint." Alas, the results of disclosure (shutting up speakers who don't meet Justice Scalia's definition of courageous) have not received such scrutiny.

To be sure, some amendments in the Bill of Rights function retrospectively, such as the Fourth Amendment. One cannot realistically prevent all unreasonable searches and seizures by the government, and must instead rely on the courts to exclude illegally gathered evidence and to return property. But the amendment's retrospective remedy provides nearly complete relief: all evidence gathered in an illegal search is considered "fruit of the poisonous tree" and is prohibited for use in a criminal trial. The First Amendment cannot provide such relief, and should prospectively protect against the worst results of disclosure just as the Second Amendment protects against the worst results of government as a whole:

If . . . the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia . . . —if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment's guarantee—it does not assure the existence of a "citizens' militia" as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.

District of Columbia v. Heller (2008). It's uncouth to even use the word "tyranny" in some circles, but preventing it is an integral and prospective protection of the Second Amendment, or why we as individuals may keep and bear arms. To better ensure that we never have to exercise this fail-safe, the First Amendment must be restored to protecting the broadest engagement in our politics, and this can only be achieved by respecting donor privacy and curtailing retaliation before it happens, rather than pretending it can be fixed after the fact.