PROVIDENCE — Both sides enlist the First Amendment to make their case. Both sides talk about freedom of speech and the marketplace of ideas.
But the two sides draw diametrically opposed conclusions about a Rhode Island campaign finance law, passed in response to the US Supreme Court’s Citizens United ruling, requiring the disclosure of big donors behind independent political expenditures.
The state’s 2012 law is now the subject of both a federal lawsuit, which conservative groups filed in November in US District Court in Providence, and a set of proposed regulations, which the state Board of Elections discussed last week as it begins fully implementing the law.
“The sole purpose of this law is to name and shame individuals who support different viewpoints -- or worse, intimidate people into staying silent,” said Patrick Hughes, president of the Chicago-based Liberty Justice Center, which represents the plaintiffs in the federal lawsuit challenging the state’s law.
Austin Graham, legal counsel for the Washington-based Campaign Legal Center, contended the law is not about naming and shaming.
“It’s about providing voters with more information to fully evaluate political advertising and messaging, which in turn allows them to fully participate in the democratic process,” he said.
Graham told the Board of Elections that Rhode Island’s disclosure requirements advance rights protected by the First Amendment.
“It’s the marketplace of ideas,” he said in an interview. “Informed decisions in the political marketplace, like the economic marketplace, depend on the free flow of information about sources of political messages supporting or opposing candidates.”
But Liberty Justice Center attorney Daniel R. Suhr said the lawsuit filed on behalf of The Gaspee Project and the Illinois Opportunity Project is rooted in the First Amendment.
“This case is about freedom of speech and association,” he said in an interview. “We think the marketplace of ideas operates best when we have the most robust conversation and people can say controversial things without fear of retaliation.”
Suhr noted that the Federalist Papers, which promoted ratification of the US Constitution, were written by Alexander Hamilton, James Madison, and John Jay under the pseudonym “Publius.”
“From the beginning of our nation, our country has had a proud tradition of anonymous speech in the public square,” he said. “And that stems from a commitment to focusing on ideas, rather than who is paying for the message.”
Common Cause Rhode Island pushed for the law following the 2010 US Supreme Court’s Citizens United ruling, which removed caps on how much corporations, unions and interest groups can spend on advocacy communications that do not specifically call for the election or defeat of candidates.
The 2012 state law requires that independent expenditure ads or electioneering communications aired during Rhode Island election cycles must disclose the names of the top five donors to the organization behind the ad. Also, groups making independent expenditures or electioneering communications must file public reports listing donors who gave $1,000 or more.
Marion said the US Supreme Court was closely divided in the Citizens United case, but at the same time, eight of the nine justices upheld disclosure requirements -- thereby rejecting the idea that the First Amendment protects the anonymity of donors in independent spending.
Also, he noted that in a 2010 case about the disclosure of petition signatures, conservative Justice Antonin Scalia wrote that, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
Marion said the Rhode Island law establishes “reasonable disclosure and disclaimer requirements for people who are trying to influence voters.” And he and Graham urged the Board of Elections to adopt a set of regulations putting that law into full effect.
“As you know, we have been sued about this,” Board of Elections Vice Chair Stephen Erickson told Graham. “But my understanding is that these regulations have, in fact, been upheld in some cases?”
Graham said, “Disclosure and reporting requirements for independent expenditures and electioneering communications, including in Citizens United, have been upheld by multiple federal courts.”
“So you are confident we are on strong legal ground here?” Erickson asked.
“Yes, sir,” Graham said. “I believe so.”
In an interview, Suhr disagreed. In October, he noted, a federal court in New Jersey halted enforcement of a new law requiring disclosure of donors to “independent expenditure committees” when groups spend more than $3,000 a year for political communications. In that decision, a judge talked about the increasingly divisive political climate “marked by the so-called cancel or call-out culture that has resulted in people losing employment” and “being ejected or driven out of restaurants.”
Suhr said businesses received angry phone calls and boycott threats after US Representative Joaquin Castro, a Texas Democrat, tweeted a list of people who donated to President Trump’s reelection campaign.
But Graham said instances of harassment stemming from independent expenditure disclosures are “extremely rare.” And he noted the lawsuit filed in Providence does not provide any specific examples of such harassment. “It’s hypothetical,” he said.
Stephen Brown, executive director of the American Civil Liberties Union of Rhode Island, offered another perspective on the state’s disclosure law during last week’s Board of Elections meeting.
Brown told the board that the potential for corruption is a key component of why disclosure is needed in candidate campaigns. But he said courts have drawn a distinction between candidate campaigns and referenda campaigns, where there is a stronger First Amendment interest.
“So when you talk about dark money, you have to realize that when you are dealing with this very complex and sensitive area of campaign finance reform,” Brown said.