By Rick Hasen
Today the Supreme Court affirmed (that is, agreed the lower court was correct, although not necessarily on the reasoning) in Independence Institute v. FEC, a major case which could have called into question the effectiveness of federal and state disclosure laws.
There was a full court press to hear this case-check out the large number of amicus briefs supporting review…
Twice (in McConnell v. FEC and Citizens United), the Supreme Court by lopsided majorities held that it is permissible to require disclosure of money spent on political speech, even if that speech does not contain magic words of advocacy, like vote for or vote against. Independence Institute was an attempt to get the Court to take a third bite at this apple, and to carve an exception for “genuine issue advocacy” which names candidates and could affect elections. The result of a reversal here would have been to create a kind of constitutional exemption to disclosure which would be easy for outside groups to get around-kind of what we are seeing on the federal level, but on the state and local level too.