The Supreme Court will soon decide whether to take up a major case about disclosure and this has received little attention—far less than it should. At issue is the clarification of how far government authority extends in requiring the disclosure of the financing of “issues speech”–speech or just information about candidates’ positions that does not involve engaging in advocacy of their election or defeat. There are reasons why the case might have been overlooked: it involves a small organization in a small state, and the activity concerns state and local, not federal (much less presidential), candidates. Perhaps, also, because it is “just” about disclosure, this case might be supposed to pose little danger of harm to anyone’s rights or legitimate expectations. This is serious business. As the states move along with their own reform programs, and as litigation proceeds under different standards applied by different circuits and diminishing consistency in the treatment of federal and state or local-level enactment, disclosure doctrine is losing its coherence, and key constitutional distinctions once taken for granted are being rapidly eroded. One disturbing result: the “big” and sophisticated spenders at the federal level are more protected than the “little guy” at the levels below.
In the case in question, Delaware Strong Families v. Denn, the speech took the form of a Voter Guide that reproduced positions supplied by the candidates themselves, or in the case of candidates who declined to cooperate, their stated positions drawn from the public record. DSF is a 501(c)(3) barred from endorsing candidates, unlike an affiliated (c)(4) that may and does. There is no allegation that the (c)(3) is evading the prohibition on partisan speech. Delaware has enacted a disclosure law that applies to this Guide, requiring the disclosure of DSF donors who have given over $100 over a four- year period. The law covers all speech referring to candidates, whether by broadcast, mail or Internet, within 30 days of a primary election or 60 days of a general. It is triggered by the expenditure of more than $500 without regard to the size of the audience.
DSF sued and won in district court, then suffered a reversal of fortune in the Third Circuit Court of Appeals. The short opinion issued by the Third Circuit is striking in its breadth and, one might say, daring. It looks past the critical Buckley distinction between express and issue advocacy, apparently in the belief that, on this point, the 1976 decision has been overtaken by the decisions in McConnell and Citizens United, especially the latter, which it reads to allow for the regulation of any issues speech that could influence voter choice.