Will and Dan deal with some tough but fair listener feedback, and then get through AFP v. Bonta (finally). Listen to see if they get further!
Will and Dan deal with some tough but fair listener feedback, and then get through AFP v. Bonta (finally). Listen to see if they get further!
Dan: (00:19)
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: (00:25)
And I'm Will Baude.
Dan: (00:26)
So, Will we do like just a unpredictable, like last episode when we kept telling people throughout the episode that we were going to cover two cases, [Bernovich 00:00:35] and AFP, and then we got to the end and realized we had used up all of our time block. So, that's just what we're going to do. You can't predict. Even if we tell you we're going to do something, we might not do it.
Will: (00:46)
So, Dan, are we going to cover one case or two cases today?
Dan: (00:49)
I think we should now adopt a policy of not over promising, so I think the over-under for today is 1.5 cases, but I'm not going to commit to more than that. So, let's see. And so, we are going to do that AFP case, but before we jump into that, anything we should talk about?
Will: (01:07)
Some interesting feedback, some substantive, some stylistic. So, we got a really interesting email from a listener, Jared Knight, asking about the cat's paw theory, which was rejected in Bernovich , which we talked about last time. This is the idea that the fact that some members of the legislature might have racist motives, doesn't necessarily infect entire process. And he wrote in to ask how, if at all, does the court or scholarship square the court's rejection of the so-called cat's paw theory and Bernovich with the decision in Masterpiece Cakeshop, where the court seemed to reach the opposite conclusion? So, if you remember in Masterpiece Cakeshop a few years ago, the court seized upon some comments by, I think, two members of the Colorado Civil Rights Commission that it thought demonstrated hostility towards religion, and it relied upon the hostility of those two commissioners to set aside the judgment of the entire commission against the Masterpiece Cakeshop, which allowed them to send the case back and decide it all over again.
Dan: (02:02)
And so, what's the difference?
Will: (02:04)
Well, as it happens, Masterpiece Cakeshop anticipated this problem. So there's a paragraph in Masterpiece Cakeshop where the courts said, he court described these comments, it noted that there were no objections of these comments from other commissioners, other people didn't mention them, but on the other hand, the comments were not disavowed in the brief filed in this court. And so, it said, "For these reasons, the court cannot avoid the conclusion that these statements cast out on the fairness and impartiality of the commission's adjudication of [inaudible 00:02:33] case. Members of the court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. In this case, however, the remarks were made in a very different context, by an adjudicatory body deciding a particular case."
Will: (02:49)
So, I think the law now is something like the cat's paw theory, not quite the cat's paw theory, but one set of principles is true in adjudication, even executive branch adjudication, and a different set of principles is true in lawmaking-
Dan: (03:03)
I mean, that's a distinction. Do we really think that's a distinction that should matter? I mean, what if it's the, let's say, racist or anti-religious comments are made by like the chair of the committee that passes a bill to the legislature?
Will: (03:21)
Yeah. I mean, in Brenovich, they said even the sponsor was not good enough.
Dan: (03:25)
Yeah. I will say, I mean, so on the one hand, we talked about this a little bit in one of our Separation of Powers episodes, if it's like a three judge panel of a federal court and something is wrong with one of the judges, like one of the three judges is not properly appointed by article three or should have recused or whatever, I think it's pretty common to just have a do-over, say, even though it's just one of three, the process needs to be clear of bias. There, I mean, you could imagine the deliberations being different. Right?
Will: (03:53)
Right. Although, in theory, legislators sometimes might still deliberate even in this day and age. Yeah. I've been chewing on this. I don't know if it totally works. I think maybe this is where some scholarship might come along and tease this out. I think you could tell a story about how adjudicators have a different kind of duty, a duty towards something, more neutrality or more collaboration or more reasoning than lawmakers do, as lawmakers are allowed to do all sorts of stuff. But I don't know.
Dan: (04:22)
Okay. Well, and maybe you could say there's like you have due process of adjudication but there's no due process of lawmaking, despite some arguments to the contrary. I don't know. That's a distinction. Okay. What else we got? I like reading our reviews on the Apple Podcast store because sometimes they provide helpful tips and sometimes they're amusing. We got one from Hoosier's Are Good People who says, "We are great, if lacking a little bedside manner." Says, "We have a brilliant and free-flowing discussion. The gents could stand to show a little bit more charity to one another, but what do I know? I'm just a doctor." So, I don't know who this doctor is. I don't know what he means by a little bit more charity. I mean, you're very charitable, Will. I think, if anything, maybe you're too charitable towards everybody, always assuming everybody's acting on benign motives, so I guess that must be directed at me. Have I been uncharitable?
Will: (05:10)
Not that I noticed. Maybe I'm charitable with everybody but you. Maybe I'm being uncharitable to your attempts to find lack of charity in.
Dan: (05:19)
I don't know. I think it's been pretty civil, but I'll do my best. So-
Will: (05:22)
Thank you. If I've done something wrong to you, Dan, I'm sorry.
Dan: (05:26)
No. That is not my alt account asking for redress of grievances. But if you think I should be less charitable to Will, feel free to send me that commentary. I've gotten some private commentary along those lines. You might've gotten some private commentary along those lines with regard to me. But this person was willing to extend this commentary in a public way. What other comments?
Will: (05:48)
And then the other one that really puzzled me, is somebody responded to our Twitter account, "Never has a podcast featured a greater between the theme music's intensity and the host's tone and energy. I dig both, just saying." What do you think he means?
Dan: (06:04)
Well, our music, it's a little mysterious, it's kind of exciting and kind of... And the tone of the show is maybe a little bit more sedate. When I had the music commissioned, actually, I sent the guy some true crime podcasts, and I was like, "I listen to a lot of these. Give me something in this universe." That's not exactly what we're doing here.
Will: (06:24)
Who killed democracy, in a sense.
Dan: (06:27)
Yeah. I don't know. Maybe we should try to live up to the theme music's promise a little bit more. We'll try to do that today by being more dramatic, more mysterious.
Will: (06:38)
I'm excited, Dan. I'm always excited.
Dan: (06:40)
Yeah. You don't bubble over in enthusiasm, but I can tell it's just [crosstalk 00:06:46] beneath the surface.
Will: (06:47)
This is me bubbling. All right. So, what's our first crime of the day?
Dan: (06:53)
Okay. So, the one thing I can promise that we will cover today is Americans for Prosperity Foundation v. Bonta, and if there's time, if we run out of stuff to say, or before time window expires, we will talk about Trans Union v. Ramirez, but no promises on that front. So, let's do Americans for Prosperity v. Bonta. This is one of the last day cases, so as we said, last time the last day cases are typically the most controversial, or at least the ones that are people are wanting to go back and forth on their opinions the most, taking the longest amount of time to write their opinions. And so, they may be the ones where the court is most bitterly divided, but for whatever reason, this is one of the ones that took the justices the longest. And we have an opinion for the court, mostly, by Chief Justice Roberts. What's the case about?
Will: (07:52)
So, in a nutshell, the case is about whether charities] in California have to tell the Attorney General who the donors are. Right?
Dan: (07:59)
Yeah. And specifically whether they have to file with the Attorney General this form that is actually a form that they already include on their federal tax filings. And so, basically, you just have to include a copy of this under state law.
Will: (08:14)
Right. So, for federal tax purposes, they have to tell the federal government who some of their major donors are, and California says, "We'd like to know that too." But of course, this can be sensitive information. Especially in this day and age, there are a lot of charitable organizations that are pretty strongly associated with controversial causes, and so some of them don't want people to know who they're donors are.
Dan: (08:38)
Because of cancel culture. Right? That's the fear here? This is underneath the surface of this case?
Will: (08:43)
That's what they say. I mean, I don't know if we accept that at face value. Right? So, if people know you give a large amount of money to the Americans for Prosperity or something, they might harass you or say nasty things about you or realize you're some sort of conservative. I don't know. Do you think there's something else, some other reason they wouldn't want... We'll get to this, I guess. I guess maybe there's some more nefarious reason they want to keep it a secret, although I can't quite figure out [crosstalk 00:09:08].
Dan: (09:07)
Well, there's a lot to say there, so let's put that on pause for just one second, because I think that relates to a question about how big we think this case might ultimately end up being. But yeah, so I mean, it's a case about just our donors... Basically, does the first amendment protect donors to associations, to organizations, give them a right to maintain some secrecy or not have their identities disclosed?And it's interesting because this is a case, 2021 case, that is going to be relying on precedent from the Warren court, particularly a Warren court precedent dealing with some of the worst features of Jim Crow South.
Dan: (10:00)
And there's a case that the court is interpreting here, NAACP v. Alabama, in which Alabama, the Alabama Attorney General was trying to get the membership lists of the NAACP in Alabama. And one can only imagine, and I'm sure the historical record has more details about this, that this was for nefarious purposes. This was going to lead to harassment, intimidation, violence in order to deter civil rights activity in Alabama in 1958. And now we're going to transplant that precedent more than a half century later to the context of charitable organizations in California.
Will: (10:43)
Right. Is California the liberal Alabama?
Dan: (10:45)
No.
Will: (10:46)
Who is? Or cannot be a liberal Alabama?
Dan: (10:48)
I would reject the assertion that there is a liberal Jim Crow 1958 Alabama.
Will: (10:55)
Okay. And the other case they rely on a lot, which I think has the same context, but I also find interesting, is a 1960 case called Shelton v. Tucker, which is Arkansas, also South, a little less deep, I guess, where there was an Arkansas statute compelling every teacher, every public school teacher as a condition of employment, to file an affidavit listing all organizations they belong to. Again, there was a teacher who was a member of the NAACP who didn't want to tell people what his associations were, did think he had to do that, and he got fired and the court said, "You can't do that." So, we've got some precedent here. You at least have a right to be an anonymous member of the NAACP.
Dan: (11:30)
And then, more generally, though, we also have some precedent suggesting that, in slightly different contexts, that the government can require disclosure of certain kinds of donations, so in the campaign finance context, the court has generally upheld laws requiring public disclosure of people making donations to campaigns and spending money on behalf of the election or defeat of candidates. So, thinking back to the reviled Citizens United, there's also part of Citizens United that concerns some disclosure requirements in the Bipartisan Campaign Reform Act that were upheld by the court I think 8-1. But the future of those kinds of requirements, I think, is something that maybe this case is going to call into question a little bit indirectly, but maybe let's save that broader discussion until we get to the end and work through the more specific issues here.
Will: (12:30)
So, as I understand the structure of the legal analysis here, there's a constitutional right of some kind to anonymous association, then the state has to have some kind of a justification, and the court has to do some kind of analysis about whether the justification is enough to overcome the right. And I've got to say, I find that all three steps here a little puzzling. So, I don't understand where this right comes from, I don't really understand why the state of California wants this, and I don't understand how the court is supposed to weigh either of those two things go together.
Dan: (12:59)
Okay. So, let's start with the first. I mean, do you agree that the first amendment protects some kind of freedom of association or not?
Will: (13:06)
Well, I guess. I did stumble a little bit when the court starts by quoting the first amendment, which protects the speech, press, assembly, and petition, and religion, and then [crosstalk 00:13:20].
Dan: (13:20)
Your favorite justice, Justice Barrett didn't remember all five of those, by the way in her confirmation hearings.
Will: (13:26)
It's a little confusing. I think there is a little bit of a dispute amongst some people about whether assembly and petition are two rights or one. Some people think it's the right to assemble in order to petition, but the placement of the comma means it's probably separately the right to assemble and the right to petition [crosstalk 00:13:39].
Dan: (13:39)
You can't file a single person petition?
Will: (13:41)
Well, you can both file a single person petition, and you can assemble even if you don't want a petition anything, if you just want to hang out or something. But anyway.
Dan: (13:48)
Well, that's if they're two right, but you're saying if there's one right-
Will: (13:51)
If there's one right [crosstalk 00:13:52].
Dan: (13:52)
You can only assemble to file petitions, but you can't assemble it to-
Will: (13:55)
Yeah. But anyway, then they say, "Well, and long understood as implicit is the right to associate, including the right to anonymously associate." And I don't know, I wasn't sure how we got there exactly.
Dan: (14:07)
Yeah. We kind of rushed through that, but at least there we do have this precedent. I mean, do you think joining an organization, like say joining some kind of advocacy organization, would you say that is speech of a kind?
Will: (14:21)
No. So, I guess I would have thought maybe that we protect association, including anonymously association, because burdens on anonymous association are often burdens on speech, so that if a state selectively goes after some anonymous associations and not others in order to show their viewpoint, they're wanting to know the membership of the NAACP but not anybody else, that that's actually a free speech problem because they're targeting a group on the basis of a two point, but not there's necessarily a right to secret conspiracies in the abstract. But I understand the precedent says there is, I just... Anyhow we get started on this foot, I'm always a little bit confused the whole way, so you're going to have to hold my hand.
Dan: (15:06)
Okay. And by the way, we're not even really talking about whether association, there's a right to association, because remember, here, this is about donations. Right? Do you think the first amendment protects a right to give donations to charity?
Will: (15:19)
Not as such.
Dan: (15:21)
So, then, why should it protect their right to give donations to charity anonymously?
Will: (15:25)
Right. I mean, I guess I do think that, I think the state can... So, I guess this is my general attitude towards money and speech, is that money is not speech, but many laws that regulate money also regulate speech. So, if the state says you can give money to good charities and not bad charities," and good and bad are defined by their viewpoint, that's a law abridging the freedom of speech, not because the right to give money as the speech, but because the charities are engaged in the speech and then you're targeting some and not others for having good versus bad speech. But [crosstalk 00:15:56].
Dan: (15:55)
What if they're differentiating the charity's not based on their speech but based on their deeds?
Will: (16:00)
Yeah. Then I'm less sure that has anything to do with speech.
Dan: (16:05)
Okay. All right. Well, that's interesting. I don't want to think about that. But I do think that the money equal speech move that we see a lot in modern first amendment jurisprudence, and particularly in campaign finance cases, is highly debatable. Although, I agree with you that there are many situations where something is regulating money but it's effectively regulating speech. I mean, we know in, let's say, Citizens United itself, the law at issue was regulating independent expenditures, but effectively was saying you can't make a documentary video about-
Will: (16:38)
Right. So, you can create a 501(c)(3) to make all sorts of things, and even all sorts of podcasts, you just can't make a podcast that says nasty things about a particular political candidate up for election. So, then, I see how it's regulating money, but the speech is a trigger for the money. Different than they just said like, "You can't put money in..." If we just got rid of 501(c)(3)s or something altogether, that doesn't sound like it's a speech problem.
Dan: (17:02)
Okay. But we're going to say you have this right to associate, and then the court is going to quote NAACP v. Alabama stating, "It is hardly a novel perception that compel disclosure of affiliation with groups engaged in advocacy may constitute as effective restrain on freedom of association as other forms of governmental action." Okay. So, forced disclosure can be a restraint on freedom of association. Okay. We've got that from precedent.
Will: (17:32)
Right. Okay. So, I sort of get that. And then we have some kind of scrutiny.
Dan: (17:40)
Yeah. So, this is where I get a little lost. Maybe it's because I never actually took the first amendment when I was in law school.
Will: (17:47)
I took it twice and I promise that it doesn't help.
Dan: (17:49)
Okay. There's two kinds of scrutiny, strict and exacting.
Will: (17:54)
There's more than two kinds of scrutiny.
Dan: (17:55)
No, as relevant here. Right?
Will: (17:57)
Okay. Yeah. I think somebody, Michael Stokes Paulson, wrote an article called Medium Rare Scrutiny where he documented at least eight or 12 different kinds of scrutiny, and that was 20 years ago. I don't even know how many there are now. But okay.
Dan: (18:09)
This is not an ideological statement. This is just one of the dumber features of constitutional laws, all these layers of scrutiny, and it makes you wonder whether like... a different way of doing it, something that maybe looks more like proportionality analysis that you see in other countries, constitutional law might make sense. But basically, we have all these different levels of scrutiny, and basically, it's like the level of scrutiny seems to do a lot of the work in terms of figuring out how hard it is for the government to be able to do the thing it wants to do or whether that's going to be unconstitutional.
Will: (18:39)
That's actually what I like about these. A common alternative is this general proportionality, you just always, in some general sense, put the right and the government's interest against one another. And then it's always very unclear what you're supposed to do, and so the different level of scrutiny help you put them in different buckets and provide a principle for why in the free speech cases, the free speech interests usually wins, but why in the regulating businesses or something, the government usually wins.
Dan: (19:09)
You can do proportionality and just say like there's certain kinds of interests that are stronger or certain kinds of... I guess maybe you end up in the same place.
Will: (19:18)
Yeah. In some ways, it provides, yeah, a different way of grouping them together. Students seem to like it.
Dan: (19:24)
Well, students like distinctions, especially at least ones that they can learn so they can be prepared for the exam. Okay. So, strict or exacting strict is stricter than exacting?
Will: (19:37)
Strict is stricter than exacting. There's some kind of fight that seems to be very important to everybody over whether strict scrutiny or exacting scrutiny applies, and I think the two different petitioners, the Americans for Prosperity and the Thomas Moore Law Center maybe even had different briefs on which standard we should apply. And the Chief Justice picks exacting scrutiny, and I don't care, but I guess that's what we have.
Dan: (19:59)
This probably is going to matter at the margins, maybe in some lower court cases, I guess, but this did not strike me as the most important part of this case.
Will: (20:11)
Right. I guess the one thing that's noteworthy is that strict scrutiny is the term we use in lots of modern doctrine, and exacting scrutiny is maybe the term that was used in NAACP v. Alabama and Shelton v. Tucker. And so, by picking the one that's from those cases, the court is... It's just like tying itself to the precedent a little more tightly than it could. It could have said we're inspired by the precedent, now we're going to create this even stronger right, and they're just going out of their way, not to step beyond those precedents, at least in this respect. Maybe [crosstalk 00:20:46].
Dan: (20:46)
The Chief Justice seems to do interesting things with layers of scrutiny. I remember in United States v. Stevens, the dogfighting and crush video first amendment case. In that case, doesn't he completely sidestep the question of what level of scrutiny applies, and if you read it, it's kind of hard to know? So, he's clearly thought a lot about these levels of scrutiny questions.
Will: (21:12)
Yeah. He's a very good lawyer.
Dan: (21:14)
Yeah. Well, if he ever goes into private practice, I'll hire him. Couldn't afford his rates. So, let's resolve that. So, basically, exacting scrutiny that basically as I understand it that basically means that it's going to be a little bit easier for the government to get away with this [crosstalk 00:21:30] wants to, just in the abstract. Strict scrutiny, as they say, is strict in theory, fatal in fact. Not everything flunks strict scrutiny, but most stuff does. Exacting scrutiny, I guess, slightly, slightly easier. But it doesn't matter in this case. It doesn't actually end up mattering in this case. Right?
Will: (21:49)
Right. It doesn't matter in this case.
Dan: (21:53)
Because what California is doing here is going to fail even the slightly less demanding exacting scrutiny.
Will: (21:59)
And this goes back to the, is this all just a proportionality question? Ultimately, the question the court is going to ask is some version of, "Does the state have a good reason for doing this? And is there a good reason sufficiently connected to the burden they're actually trying to impose?" You know, sometimes we call it narrow tailoring, sometimes we call it the least restrictive means test, but we need enough of a connection between the good thing they're trying to do and the restriction they're imposing.
Dan: (22:26)
Okay. So, in doing that balancing, one thing that's kind of puzzling about this is, first of all, this relates to what you were saying, it's not clear why California wants this. They're not really doing anything with it as far as we can tell. On the other hand, it's not clear why this is a big deal for them getting it because, as I read it, we don't actually have a lot of evidence, or really any evidence, that this disclosure is actually causing any problems for these groups that are having to disclose who their donors are. There's other evidence in the record, like generally, about how people don't like them and are occasionally mad about them. So, for example, on page four, the court notes that the Thomas Moore Law Center, "introduced evidence that it had received threats, harassing calls, intimidating and obscene emails, and even pornographic letters," that even really killed me when I read it. I was like, "Wow, is that somehow worse? Is a pornographic letter worse than a harassing call or an intimidating and obscene email?"I don't know. What is the even doing there, but I'm digressing.
Will: (23:35)
So, I do like the sentence before about the Americans for Prosperity Foundation, where the CEO testifies that a technology contractor working at the foundation's headquarters posted online that he was "inside the belly of the beast and could easily walk into the CEO's office and slit his throat," which does sound a little scarier [inaudible 00:23:54].
Dan: (23:54)
It does sound scary. On the other hand-
Will: (23:56)
It doesn't have anything to do with charitable disclosures [inaudible 00:23:59] the guy they hired to work at their headquarters.
Dan: (24:02)
Yeah. And so, I remember I read this one and Bernovich at the same time, one after the other, and I think that there's an interesting comparison here in terms of the way in which the court in this case versus Bernovich is willing to approach the alleged burdens by the people subject to a law versus the justification that the state offers for a law. And here, the court is quite skeptical of justifications offered by California and very differential to the burdens that this law, this legal regime, purportedly imposes on groups, whereas in Bernovich, the court took very seriously this argument that the state made about, "Well, there's voter fraud," and was not very sympathetic to the burdens that the Arizona voting laws there imposed on voters.
Dan: (25:06)
Now, different cases, different legal questions, one's statuary, one's constitutional. Nonetheless, I thought it was an interesting contrast when I read them together. And it's not lost on me that the political valence of the cases are different, in the sense that in this case, the groups that are trying to get the law declared unconstitutional are right-leaning groups. Although, I thought one thing that was interesting is that among the amici in the case, there are some of the more traditional liberal groups like the NAACP, like the ACLU, whereas in Bernovich, it's reversed.
Will: (25:40)
Yeah. So, that's actually one of my puzzles about this case, and maybe it's time to talk about it, I'm puzzled by the political valence of this case and I'm puzzled by why and when we decided this was a partisan case. Because I think I remember the cert petition being filed, that it seemed like, "Wow, a huge bi-partisan cross-ideological consensus, everybody from the NAACP to the Thomas Moore Law Center agree that California's gone too far." So, maybe I saw that as more of just like maybe California is an outlier type case. Having the NAACP on your side when you're relying on precedent involving the NAACP does seem like a nice, at least rhetorical point that Justice Alito made a lot of. So, there's this funny thing at the end where after the case was decided, was it David Cole at the ACLU denounced the case briefly as a partisan decision by the Roberts' court before he then had to update his tweet to note that he'd actually filed on the same side and... It's slightly different arguments, but yeah.
Dan: (26:38)
I hadn't seen that one. Well, I think a couple of things. So, one is just in general, I mean, this is a case siding with money. Right? In our current political situation, interests of capital, I think, are seen as... It has a partisan valence.
Will: (26:57)
Literally yesterday I was in a virtual room with a ton of conservatives denouncing woke capitalism, and all of the big tech companies and money on the left-
Dan: (27:09)
We are in this really interesting political moment, at least in political rhetoric, we are seeing maybe some convergence around criticism of tech companies for different reasons, but at least on the left right now, there is this concern about dark money, something that has been emphasized by Senator Sheldon Whitehouse, for whom I've done a little bit of work, and concerned that these really significant sources of wealth are going to distort our politics in some way. Now, that's not exactly what this case is about, but I do think that, this is my other point, which is that the reason that people think this is partisan, or potentially, or has this valence, is because they think this might be just step one of a lengthy series of decisions that's going to make it basically impossible for the government to get any kind of disclosure of where money is going generally.
Will: (28:08)
Okay. And just to check, dark money, what makes it dark is that it's being spent for the dark side or something-
Dan: (28:13)
That is secret. Secret in darkness.
Will: (28:16)
Got it. Okay. Okay. So, anyway, I'm with you on that contract with Bernovich. One other similarity that I think is interesting is that in both cases, the Supreme Court and the district court are ultimately on the same side, so in this case, as in Bernovich in a few key places, the majority can always say, "Well, look, the district court is the one who looked at the facts, and he concluded that the state doesn't use this for very much, there are the real problems here," et cetera. I'm not sure whether the court would actually come out any differently if the district court had been on their side, but it is at least a point of commonality that in both cases they're ultimately siding with the findings of fact.
Dan: (28:55)
And in both, the ninth circuit screwed up, right?
Will: (28:59)
Yes. The district court did the right thing, the ninth circuit screwed up. One case en banc one case of panel and the Supreme Court steps in to reverse [inaudible 00:29:08].
Dan: (29:08)
Yeah. Let's talk a little bit about the broader implications. I mean, so first of all, here's a medium implication. As noted, California was just asking for these schedules that are filed with the IRS. Right? That list the donors. Is that IRS provision like the federal provision that requires the filing of those schedules, is that unconstitutional now?
Will: (29:31)
I don't think so, although I don't totally understand why. I take it that the IRS needs this information for some federal tax purpose that's more legit than whatever the state needs it for, to make sure that the [crosstalk 00:29:44].
Dan: (29:43)
Yeah. So, look at page 18, the court doesn't rule that out. It says, "Revenue collection efforts and control of tax exempt status may raise issues not presented by California's disclosure requirement." That may also suggest... It may not, right? So, maybe that's unconstitutional now.
Will: (29:59)
Yeah. And I think the [inaudible 00:30:02] they're anticipating here, so they're setting Regan v. Taxation Without Representation and Schomburg. I think they're saying the right to operate a charity in California is a right so it triggers high-level first amendment scrutiny. Whereas, tax exempt status is a privilege, and so it may well be that they don't need very much justification to say, "Look, if you want the special benefits of tax exempt status, you have to jump through a lot of hoops." Because California is at least maybe promoting to stop the charity from operating in the state, whereas the federal government is not going to stop the Americans for Prosperity for operating, it's just deciding whether to give them a tax break. I think that's what's going on.
Dan: (30:39)
Okay. Well, that would be more alarming to me because I assume there really are... So, here, one of the things that... Although, as I said, there doesn't really seem to be any evidence that this is actually directly causing harm other than this weird attenuated chill theory. There also didn't seem to be a ton of evidence that California really needed this. They hadn't really been using it and they were talking about how they might do some enforcement to make sure these charities were legit, but that didn't really seem to be happening.
Will: (31:08)
And one other difference, I guess, is it is true that these are all just disclosures, unlike some of the campaign finance disclosures, these are just disclosures to the government. In theory, they are just between the donors and the Attorney General, but everybody in the majority skipped over that step, in part because California seems to have a very bad track record of actually keeping these things secret. So, we're acknowledging that once you give it to the California Attorney General, it could be all over the internet. Maybe we trust IRS secrecy a little more, although I don't know. I think there were just some major IRS leaks like a couple weeks ago that might pertain to that, but they could at least... That'd be another reason for thinking if the IRS [crosstalk 00:31:49].
Dan: (31:48)
Yeah. That is another interesting about the opinion, though, is that the Court really basically says... It treats the fact that California has not been 100% reliable in keeping this stuff secret. The Court doesn't really give any weight to the fact that the formal rule is this secret and this is just to the government. It's like, "Okay, well it could get out." [crosstalk 00:32:11].
Will: (32:12)
The district court makes that easy because, "The district court whose findings we review only for clear error after two full bench trials found that the promise of confidentiality rings hollow and that donors and potential donors would be reasonably justified in the fear of disclosure." So, you can easily work around that, whether that's-
Dan: (32:30)
Okay. Just to be clear, so we're now saying this is unconstitutional because there is a hypothetical risk that the secret information would be disclosed to the public, and then there's also a hypothetical risk that the public would then use that information to name and shame people, which presents the hypothetical risk that someone who would want to give money to one of these organizations wouldn't give the money and that would therefore be chilled. Right?
Will: (32:54)
Yeah. Yeah. [crosstalk 00:32:55].
Dan: (32:55)
There's a lot of steps in that. Right? There's a lot of steps.
Will: (32:57)
I think there's really only one step. The step is you're-
Dan: (33:01)
You described three steps.
Will: (33:02)
I know, but they all work... You're an evil conservative organization, so the Attorney General leaks the info to some left-wing troublemakers, which has a goal-
Dan: (33:11)
Which hasn't happened as far as we know, right?
Will: (33:13)
I don't know. But they do go together, I guess, is what I'm saying.
Dan: (33:17)
Yeah. You need all of those things to be true to actually get to the fact that... But from this disclosure regime to an actual burden on someone's actual constitutional rights.
Will: (33:29)
Right. They're not independent dice rolls.
Dan: (33:32)
No, they're not independent, but they're also not... You could imagine it could be the case that California isn't doing a great job of keeping these secret, but then actually people are not actually using this information to harass people and so forth. Right? Each one of those has to be true for this actually to be a problem. I don't know. But yeah, back to the bigger picture thing, I mean, do you think that we're now heading into a world where the court is going to start calling into question on disclosure requirements generally, like the kinds of disclosure requirements that the court had routinely upheld decade or so ago, like in the campaign finance context? Because I think that's really where the fear and that's really what's driving the partisan valence of the case.
Will: (34:18)
Right. So, I don't think so, but I don't purport to understand what's going on here at all. So, it seems like there's a big difference between the government interest and disclosure in the election context and the interest and disclosure here. That is in the election context, I understand some of the theories. Right? The theories are we're worried about various forms of bribery or quasi-bribery of public officials, and so we need to know who's getting a lot of money, voters are making the decision they're entitled to make about... Various political causes want to know if other people are trying to influence their side. I get that. I don't even get what the state wants this for, really. They keep saying fraud. I don't even quite understand like who's defrauding who. Is the worry-
Dan: (35:02)
Well, it could be like Trump organization, Trump charity-style fraud where it's like you set up a charity, it's not really a charity, and you're using that to pay for stuff? Is that [crosstalk 00:35:12] I think that kind of fraud?
Will: (35:14)
I guess. Although, then you'd think you'd care what the expenditure side more than the donation side. I mean-
Dan: (35:18)
Yeah. I don't know.
Will: (35:19)
... if the Americans for Prosperity Foundation is secretly buying art or something from one of its donors, I don't know what the schedule B is going to tell anybody about that.
Dan: (35:26)
Yeah. I don't know.
Will: (35:27)
At one point it even sounded like it might be the donors who were being defrauded, like there was some risk... But that didn't [inaudible 00:35:33] that's up to them. I didn't totally get the interest here. Where at least in the election context, I think we get the interest, so I'm not sure how quickly this gets poured it over there.
Dan: (35:42)
It's interesting, though, because this area, one thing I'm wondering is this area of public disclosure, anonymous speech, is one of these places where Justice Scalia took a position that maybe doesn't line up with where the politics are right now, and I wonder whether this is going to be one of those places where the conservative members of the court are going to be like, "Well, Justice Scalia was right about everything except for these areas where it turns out that his positions don't line up with what the interests of the conservative movement are," as it turns out. I went back and was looking at his opinion in Doe v. Reed. Do you remember that one?
Will: (36:21)
That's the campaign finance ballot [crosstalk 00:36:24].
Dan: (36:24)
Yeah. It's not exactly campaign finance, but it's whether the people who signed these petitions that gets something put on the ballot, whether that's public. So, I was looking at Doe v. Reed, and there's some interesting stuff at the end of that opinion, the separate opinion by Justice Scalia, where he says, "For my part, I do not look forward to a society which thinks the Supreme Court campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the home of the brave." And in general, this came up at oral argument there, too. He had this view that if you're going to take a position, have some civic courage and get up and be willing to stand for it. And I don't know what he would think about this 2021 where we now have this sense that cancel culture, if you say something controversial, everyone's going to be mad at you, and so you should be able to say whatever you want anonymously. What do you think?
Will: (37:16)
I wonder. I mean, a particular theme of that view Justice Scalia's was that, especially when you want to exercise power over other people, you have an obligation to put your name into it, so that's why it's the people signing a ballot initiative, it's people doing anything that's... Voting, even, is a method of accessing power over other people, that he felt that view especially strongly. So, I do wonder if a lot of the contexts today are not quite the same. Maybe he would still say, "Yeah. It's okay for the government to say everybody should put their name into it as long as it does that in this fashion."
Dan: (37:47)
Yeah. But it does seem like there's more.... Maybe there's more support for anonymous speech on the court. Now, how big this is going to be, I can imagine a world where this is just this one case, it's just, as you said, California maybe went a little too far, asking for too much without really any need for it. Or this is the building block of a much more robust jurisprudence aimed at protecting all sorts of anonymous speech and anonymous spending. And I think one reason people might be concerned about that is because that's long been the view of Justice Thomas. Right? He was the dissenter against disclosure requirements in Citizens United. And to the extent the court is going into a more Justice Thomas direction, generally, maybe that's where we're headed, and I think that concern motivates...
Dan: (38:35)
This is a case that does split the court along traditional partisan lines, we have a dissent by Justice Sotomayor, joined by Justices Brier and Kagan, which I thought was a well-done descent as far as these things go. Went through all the points that we've talked about, about how the arguments for why this is a big deal in opposing such a big burden are relatively weak in this case. And more generally, and also just saying like it doesn't make sense to take this Warren court, Jim Crow, era case and transpose it to this context where people are not facing the kinds of serious intimidation and violence that members of the NAACP in the 1950s in Alabama were facing.
Will: (39:23)
Sure. Well, I think this is a general... We might have talked about this before. I forget. There are a lot of precedents from the Warren court about the NAACP that don't say it on their face that they're relying on the... that they're precedents that only apply to the circumstances of the NAACP in the Jim Crow South, but where a lot of people think that's going on and we have to decide whether to keep applying them to new contexts that are maybe not as dramatic or whether to put them in a box of things we don't do anymore.
Dan: (39:54)
Yeah. It seems like it may depend a little bit on whether continuing to apply them benefits the ideological interests, if the transient Supreme Court majority or not.
Will: (40:06)
Yes. Certainly one of the things about having precedents lying around where courts have some amount of judgment in whether to extend them or narrow them is that it allows courts to indulge other preferences. I don't know. Maybe we can do about it in that, but I do think that's a recurring problem. And one last point I think the dissent raises, which I do think is a fair point, and it's also mentioned in Justice Thomas's concurrence, is the court leaps from the burdens this law imposes on the petitioners and the problems that they have faced to invalidate the entire disclosure regime on its face, which is a leap. Right? Sometimes, often in law, less often in the first amendment, but often in law, we say the bread and butter is to say, "If this statute causes a problem for you, you have a constitutional claim, but that doesn't mean we make it invalid for everybody." And here the court makes it invalid for everybody, which is striking.
Dan: (41:02)
Yeah. And this relates to, I think, an issue we've now talked about multiple times, which is this whole question about what does it mean for a court to exercise judicial review over a law, over a statute. And Justice Thomas chiming in, again, to say the court doesn't strike down statutes at issues, rulings that apply to particular parties, and I think there's something to that in this case. Although maybe the court just doesn't want to have to require people to go through as applied constitutional litigation, every charity to go through.
Will: (41:38)
And the majority does respond at the end of their opinion, that in this case, it wouldn't really matter because the pertinent facts in these cases are the same across the board. Schedule B's are not used to initiate investigations. This is true in every case. California is not considered alternative. This is true in every case. State's interests are weak in every case. So, some of the facts it's relying on are just facts about the law so it doesn't matter, but I'm not sure.
Dan: (42:03)
Well, we we'll see, and we will certainly see whether this case is the beginning of a much broader jurisprudence of anonymous speech, anonymous suspending or not. But I think we're not able to figure that out today or this [crosstalk 00:42:21].
Will: (42:21)
Well, what's your prediction? What's your prediction?
Dan: (42:22)
I think we're going to see some of that. I do. And I think we're seeing certainly going to see probably more votes than one for the invalidation of money, disclosure regimes. I think that this court has moved in a more justice Thomas direction on questions like that. I think that's likely. Now whether... Hmm?
Will: (42:43)
10 years from now, do you think there will be any Supreme Court decision invalidating any federal campaign finance disclosure requirements?
Dan: (42:50)
Any? I'd say there's a good chance of that. Yeah. You don't think so?
Will: (42:55)
I give it less than 50%.
Dan: (42:57)
Okay.
Will: (42:58)
[crosstalk 00:42:58].
Dan: (42:59)
[crosstalk 00:42:59] not a lot less, right? Probably.
Will: (43:01)
Yeah. I don't know. Yeah. 25%.
Dan: (43:03)
Okay [crosstalk 00:43:04].
Will: (43:04)
Not anything to worry about [crosstalk 00:43:06].
Dan: (43:06)
You don't see the Court as chomping at the bit to use this [inaudible 00:43:10] other contexts, you think this is sufficiently unique, it's different than campaign finance context and so forth.
Will: (43:15)
I see people are worried. I'm sufficiently puzzled by the way we've politicized our attitudes towards disclosure that I don't plan to be able to predict it. On the other hand, for people who like to strike down campaign finance restrictions, being able to point to disclosure is awfully handy, so it can be cutting off your own-
Dan: (43:34)
Going back to a debate we were having earlier about like where the interest of capital, I do think that at this present moment maybe there's more concern on the left and there's more belief on the left that the very small numbers of anonymous donors are benefiting conservative organizations. And that does seem to be the case. By the way, who endowed the Antonin Scalia Law School at George Mason? We don't know. It's anonymous, right?
Will: (44:05)
[crosstalk 00:44:05].
Dan: (44:07)
You know?
Will: (44:07)
Well, I think somebody told me last week, actually, but I forgot.
Dan: (44:11)
We could have broken that story here and you've already forgotten, which is interesting.
Will: (44:16)
It wasn't interesting then.
Dan: (44:18)
Okay. It was some rich guy, probably, is my supposition. Okay. But we'll see, we'll see what happens with that. You can either think of this as not a big deal or a really, really, really, really big deal, and I don't know if there's a ton of middle ground between those two possibilities, but maybe.
Will: (44:37)
I'm just not sure.
Dan: (44:38)
Okay. Did you want to try to talk about TransUnion? Can we-
Will: (44:42)
I think we probably keep it, save it. What do you think? [crosstalk 00:44:45].
Dan: (44:45)
Do you have to go literally exactly at 5:00?
Will: (44:48)
Yes, or a few minutes before.
Dan: (44:50)
Okay. A few minutes before, that's not going to work. Okay. So, it looks like because I had some technical difficulties, it is not going to be possible to go on and do the second case, as much as we wanted to, so we are going to do that next week. We will record that. We will get that out to you. I have a lot to say about TransUnion. Will, I bet you do too. But this is only have time for it today.
Will: (45:12)
Yeah. Once again, we're keeping people on their toes, but at this point, I guess the prediction is usually that it's going to take us a lot longer to talk about any case than we ever think it will. I guess it's our lack of bedside manner and lack of charity towards one another.
Dan: (45:24)
And lack of intensity, as suggested by our theme music. If we were more intense, we'd be faster paced.
Will: (45:33)
We lack both charity and intensity?
Dan: (45:35)
I guess. Yeah. We're mean but slow and sedate, which is fair.
Will: (45:44)
Thanks very much for listening, and thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to those of you who have sent in feedback, some of which we'll be revisiting in a future show. Please remember to rate, review the show on iTunes, or wherever it is you're finding your podcasts. We find that feedback valuable, as this episode will indicate, and by our listeners do too. It helps them find the show.
Dan: (46:06)
And thanks to our many significant anonymous donors who we will never disclose and now no longer have to disclose to the state of California.
Will: (46:16)
And that's exciting.