69 Am. U. L. Rev. 1395 (2020).
* Director of Campaign Finance Strategy, Campaign Legal Center. I am deeply grateful to Aseem Mulji and Maggie Christ for their invaluable contributions to this Article and to Solomon Miller for his helpful work on the early stages of this piece.
In Citizens United, eight of the Supreme Court’s nine Justices reaffirmed the Court’s earlier decisions holding that election-related transparency laws are constitutional. Those eight Justices agreed that voters have a right to know who is paying for pre-election ads that mention candidates—“[e]ven if the ads only pertain to a commercial transaction.” And they recognized that election spending “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
In the near decade since Citizens United was decided, lower courts have invoked the decision to uphold a wide range of federal and state disclosure laws, rejecting arguments urging a narrow interpretation of the decision. And the Supreme Court has declined subsequent requests to revisit its disclosure holding. In fact, the Court’s determination that disclosure requirements are constitutional was critical to the other part of Citizens United, in which a five-Justice majority invalidated the ban on independent, corporate-funded election expenditures. The Court held that disclosure is a “less restrictive alternative to more comprehensive regulations of speech” and predicted the decision would usher in a new “campaign finance system that pairs corporate independent expenditures with effective disclosure.”
Decisions from Buckley (1976) to Citizens United (2010) have continued to recognize a singular, limited as-applied disclosure exemption for groups facing a “reasonable probability” of threats, harassment, or reprisals. Historically, that exemption has been reserved for vulnerable groups like the National Association for the Advancement of Colored People (NAACP) in 1950s Alabama—organizations whose members faced violent retribution if their names were disclosed.
As attempts to invalidate or limit election-related disclosure laws have failed, well-funded dark money organizations are now seeking a back-door approach—claiming the narrow NAACP exemption for their own anti-transparency objectives. These new efforts generally ignore the factual context for which the NAACP exemption was recognized. They also dismiss the Supreme Court’s recognition that election-related disclosure rules promote the First Amendment rights of American voters to be informed about who is trying to influence their electoral decisions.