Supreme Court declines review of Delaware disclosure law, Thomas dissents

Alexandria, VA – The U.S. Supreme Court declined to hear the appeal in Delaware Strong Families v. Denn, which challenged a broad Delaware disclosure law that took effect in 2013. Justice Clarence Thomas wrote a six-page dissent, which is highly unusual when the Court denies review. Justice Samuel Alito also indicated that he would have granted review.

The Center for Competitive Politics (CCP), America’s largest nonprofit defending First Amendment political speech rights, released the following statement in connection with the Court’s decision.

“We are disappointed that the Court declined to hear this important case,” said CCP Legal Director Allen Dickerson, who is representing Delaware Strong Families (DSF) in the case. “We are studying other options that might allow our client to publish this information without violating its supporters’ privacy rights.”

“Eventually the Supreme Court is going to have to decide if Buckley v. Valeo is still good law, or if the government has a right to know about and publicly disclose your affiliations and memberships every time a candidate is mentioned,” said CCP Chairman Bradley Smith, a former Chairman of the Federal Election Commission.

In his dissent, Justice Thomas wrote, “In Buckley v. Valeo, for example, the Court construed a federal disclosure provision to require disclosure only ‘for communications that expressly advocate the election or defeat of a clearly identified candidate’ to ‘insure that the reach of the [federal provision wa]s not impermissibly broad.’ 424 U. S., at 80 (footnote omitted). No one contends that Delaware Strong Families’ voter guide expressly advocates for a particular candidate. Later in McConnell v. Federal Election Comm’n, the Court upheld amended federal disclosure requirements as applied to the electioneering communications of ‘corporations and labor unions . . . fund[ing] broadcast advertisements designed to influence federal elections . . . while concealing their identities from the public’ by ‘hiding behind dubious and misleading names.’ 540 U. S., at 196–197 (internal quotation marks omitted). The record here contains no evidence of such ‘abuse’ or ‘tactics….’”

Later, Thomas says, “Even if the Court were to evaluate the Disclosures Act by applying its existing framework, the Delaware scheme sweeps far broader than those the Court has previously considered….[I]f the Court is determined to stand by its ‘exacting scrutiny’ test, then this case is its proving ground. By refusing to review the constitutionality of the Delaware law, the Court sends a strong message that ‘exacting scrutiny’ means no scrutiny at all.”

As CCP noted in its brief to the Supreme Court, “fundamentally, the State’s demand contravenes this Court’s cornerstone campaign finance opinions in Buckley [v. Valeo], McConnell v. FEC, and Citizens United v. FEC. While those cases did uphold limited disclosure against constitutional challenges, they did not grant the government carte blanche. To the contrary, they emphasized that compulsory disclosure is constitutional only in narrow circumstances…[T]he information [Delaware] demands is as likely to mislead the voters as to educate them.”

The Delaware law applies to any group publishing communications, including Internet postings, that merely mention the name of any candidate for Delaware office in the sixty days before an election. Those groups must register with the state and publish the names of every donor giving $100, in aggregate, over a retroactive “election period” that can extend up to four years.

Judge Sue L. Robinson of the United States District Court in Wilmington ruled for DSF, writing that Delaware’s compulsory disclosure law “is so broadly worded as to include within the scope of its disclosure requirements virtually every communication made during the critical time period, no matter how indirect and unrelated it is to the electoral process.” The Third Circuit appeals court, however, overruled that decision, triggering DSF’s petition to the Supreme Court.

The Center for Competitive Politics is now the Institute for Free Speech.