"Chilling Speech" Argument Has No Traction on High Court

US Supreme Court

Despite the histrionics of the special interests in Washington, the core of the DISCLOSE Act is about disclosing the individuals or entities spending huge amounts of money to impact elections. It is not about suppressing free speech.

The following piece appeared on Politico's Arena on June 18, 2010.

Despite the histrionics of the special interests in Washington, the core of the DISCLOSE Act is about disclosing the individuals or entities spending huge amounts of money to impact elections. It is not about suppressing free speech. 

Opponents of campaign finance reform cling to the First Amendment as a constitutional mandate prohibiting disclosure. But as recently as this past April in the oral argument for a disclosure case out of Washington, Justice Antonin Scalia, perhaps the most conservative judge on the Supreme Court, recognized that “running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.”

In essence, American citizens cannot hide behind anonymous donations because they fear criticism or nasty phone calls that can be associated with the freedom of speech. Neither, for that matter, can corporations. Not surprisingly, in the Citizens United decision in January, Justice Scalia and seven of his colleagues from across the ideological spectrum rejected the “chilling of speech” argument now being put forth by opponents of the DISCLOSE Act. 

The Supreme Court has repeatedly found that while corporations have the right to speak, the American citizens have the right to know who is speaking. 

In the January Citizens United decision, Justice Kennedy, writing for eight of the Court’s nine Justices, fully endorsed disclosure in declaring: “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” This was not a timid statement. 

Despite the sudden onslaught of criticism the DISCLOSE Act has produced, laws requiring disclosure of political contributions and expenditures have been on the books for decades. In 1976, the Supreme Court emphasized the importance of disclosure of campaign contributions and expenditures when it made clear that “disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. This exposure may discourage those who would use money for improper purposes either before or after the election.” And in addition to thwarting corruption, the Supreme Court noted, political disclosure also is justified by its informational value: it “provides the electorate with information as to where political campaign money comes from,” which in turn “aid[s] the voters in evaluating those who seek federal office” and “allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches." 

Despite inconsistency in other aspects of the Court’s campaign finance decisions, the constitutionality of disclosure has not wavered. The Court in Citizens United confirmed this position when it stated, “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”

In a recent speech given by former Justice David Souter at Harvard’s commencement, Justice Souter declared, “the Constitution contains values that may well exist in tension with each other, not in harmony. . .  [n]ot even its most uncompromising and unconditional language can resolve every potential tension of one provision with another.” This is precisely the challenge faced here. But the Supreme Court has already balanced the competing interesting in the sphere of political disclosure, concluding unequivocally that while “compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights,” that “there are governmental interests sufficiently important to outweigh the possibility of infringement.” 

Disclosure has unquestionably been upheld as constitutional. Congress needs to finish what the Supreme Court started and implement the disclosure requirements that will keep our constitution in balance.