Adam Liptak, Supreme Court correspondent for The New York Times, writes about an overlooked upside to the Citizens United high court decision in his article, “A Blockbuster Case Yields an Unexpected Result.” While Democrats rightfully lament the free ride the ruling gives to corporate political expenditures, it turns out that it bolsters transparency in disclosure. As Liptak reports”
An often-overlooked part of the Citizens United decision actually upheld disclosure requirements, saying that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Lower courts have embraced the ruling, with at least nine of them relying on Citizens United to reject challenges to disclosure laws, often in cases involving political spending related to social issues. In particular, courts have rejected efforts by groups opposed to same-sex marriage to keep their supporters and spending secret.
Put another way, you can make the argument that Citizens United has been good for gay rights. “Even Justice Scalia supports donor disclosure,” said Joe Solmonese, president of the Human Rights Campaign, a national gay rights group.
As Scalia is quoted, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Liptak acknowledges, however, that the court did affirm “that secrecy may be warranted when there is hard proof of illegal harassment of supporters of controversial causes.”
The good news from the Republican point of view is that the filthy rich can spend unlimited amounts of money on ads to defeat progressive political candidates. The bad news for the GOP is that we get to know who they are. Scant comfort many Dems would say. But it could have been worse.
Interestingly, the decision has reversed a trend most Democrats have been concerned about, as Liptak puts it in perspective:
…The Supreme Court has long been comfortable with disclosure requirements. But Ciara Torres-Spelliscy, a law professor at Stetson University in Florida, said that lower courts had in the years before Citizens United grown skeptical of compulsory transparency, sometimes saying that it chilled First Amendment rights by imposing burdensome reporting requirements. “Before Citizens United, there was a very alarming trend in this area,” she said.
In a recent article in the Georgia State University Law Review, Professor Torres-Spelliscy described “the dramatic 180-degree turn that the law has taken” in the wake of Citizens United on the issue of disclosure…These days, Professor Hasen said, “lower courts have been taking their cue from Citizens United that disclosure laws, even if they are intrusive, are constitutional.”
No doubt the proponents of unbridled corporate funding for political ads were hoping for a provision affirming their right to total anonymity. Dems can at least be grateful that all but one Supreme Court Justice disagreed (Thomas). But Democrats should not delude themselves that transparency will be widely shared — and it’s up to Dems to make sure the public is well-informed about who is funding all the ads.