The news this week that a federal appeals court has refused to block a lower court ruling requiring the disclosure of more funders of campaign ads has campaign finance reformers tasting their first victory in a long time. “It’s the first major breakthrough in overcoming the massive amounts of secret contributions that are flowing into federal elections,” Fred Wertheimer of Democracy 21 told the Los Angeles Times. But don’t expect to see Karl Rove’s Rolodex just yet. Crossroads GPS and other groups have found that raising money from donors who don’t want to be disclosed is good for business, and they’ve got a few ways to keep the unlimited money poured into campaigns secret yet. And before you get too excited it’s worth considering that the Supreme Court could well help them keep their secrets in 2012, even though the court has so far been a big supporter of disclosure laws.
Since 1974, federal campaign finance law has required the disclosure of campaign donors and spenders. Opponents of disclosure have long argued that at least some disclosure is unconstitutional under the First Amendment’s guarantee of free speech and association, because compelling someone to reveal the names of those funding political speech will chill vigorous participation in politics. As I’ve explained, the Supreme Court rejected that constitutional challenge in the 1976 campaign finance case, Buckley v. Valeo. Confronted in that instance with a law that required disclosure of even very small contributions, the court held that the disclosure laws were justified by three important government interests: First, disclosure laws can prevent corruption and the appearance of corruption. Second, disclosure laws provide valuable information to voters. (A busy public relies on disclosure information more than ever.) Third, disclosure laws help enforce other campaign finance laws, like the ban on foreign money in elections. But the court has repeatedly said that if someone could demonstrate a real threat of harassment, they could be exempt from the disclosure laws.