ICYMI: Former Obama Counsel Bauer on “Major” Disclosure Case at Supreme Court

“[Delaware Strong Families] has received little attention – far less than it should”

Alexandria, VA – On the MoreSoftMoneyHardLaw.com blog, former White House Counsel to President Obama, Bob Bauer, writes about Delaware Strong Families v. Denn, which the Supreme Court will review on Thursday. The Center for Competitive Politics is representing Delaware Strong Families in the case. SCOTUSblog has named Delaware Strong Families its “petition of the day” as well.

“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….

“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…. 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….

“In the meantime, supporters of reform might ask whether this is a prudent stand to take on the government’s authority to compel disclosure. The risk they run is one familiar to them from the experience with aspects of BCRA and the backlash that followed: they will take their cause farther than it need go, fearful always of giving in to ‘circumvention,’ and they provoke resistance that, as it mounts, costs much more than they ever hoped to gain.

Read the entire post here.