The Supreme Court heard arguments Monday in a case that could have lasting implications for transparency in election spending, even though that issue is not part of the debate.
Two conservative advocacy groups, the Americans for Prosperity Foundation and the Thomas More Law Center, are challenging a California law that requires nonprofits (like themselves) to confidentially report their largest donors to state regulatory officers, claiming it violates their free speech rights.
While this case is about the reporting rules for charities and other tax-exempt organizations, good-government advocates are concerned about a decision opening the door for successful challenges to campaign finance transparency rules — or to the disclosure requirements for the millionaires, businesses and advocacy groups that spend exorbitant amounts to influence elections.
During almost two hours of oral arguments, the justices grappled with the question of whether the First Amendment prohibits California from requiring tax-exempt charities to report, confidentially and for state oversight purposes, their major donors. A decision from the conservative-majority court is expected by the end of June.
California is widely regarded as the gold standard for donor disclosure laws, both political and otherwise. If the Supreme Court blocks the state's nonpublic disclosure rule for charities, then its public disclosure rules for election spending could also be in jeopardy. This would be a blow to transparency not only in the Golden State, but to other states looking to emulate California's standards.
"A case about California's constitutional and confidential tax reporting laws should not turn into a case about well-established precedents for a voter's right to know who is spending in elections. A reason we are involved in this case is there is a risk that could happen," said Beth Rotman, money in politics and ethics program director at Common Cause, which filed an amicus brief in support of California's law.
Since 2010, California has required nonprofits to provide the state attorney general with names and addresses of major donors — similar to the federal tax forms charities must send to the IRS. This information is not publicly disclosed, and California officials say it helps the state combat fraud and misuse of charitable contributions.
But the Americans for Prosperity Foundation, founded by the influential GOP megadonors Charles and David Koch, and the Thomas More Law Center, a conservative Catholic legal group, argue California has failed to keep certain donor records confidential and their donors could face potential harassment from the public.
In 2014, the two groups filed separate lawsuits on the matter, and federal courts ruled in their favor. But in 2018, their cases were combined in an appeal, and California's law was upheld as constitutional. Following that decision, the two groups appealed their consolidated case to the Supreme Court, which agreed to hear the case in January.
This dispute over California's disclosure law has become one of the highest profile cases on the Supreme Court's docket this year (at least among those who monitor campaign finance laws) because of the implications it holds for transparency across the board.
The two conservative groups are seeking a ruling that invalidates California's disclosure law as unconstitutional, or at minimum exempts them from having to adhere to it.
The concern among good-government groups is that if an exemption is granted, it could be expanded in the future and ultimately relieve the two petitioners or other nonprofits from campaign finance disclosure rules.
"The problem is that if the Americans for Prosperity Foundation wins at the Supreme Court, every nonprofit that launders dark money for corporations or the wealthy will rely on this new case to keep the dark money sources under wraps. And that's bad news for our democracy," Ciara Torres-Spelliscy, a fellow at the Brennan Center for Justice, wrote in an article about the case.
The Campaign Legal Center, Citizens for Responsible Ethics in Washington and the League of Women Voters of California — joined with Common Cause on an amicus brief in support of California's disclosure law. They wrote that the challenge to California's nonpublic reporting requirement is "a solution in search of a problem," and that the First Amendment injury claim by the two petitioners is "highly speculative" and contrary to their own experience.
"Neither petitioner has demonstrated that California's nonpublic reporting requirement imposes an 'actual burden' on expressive or associational rights," the brief states. "Yet their entire legal argument — and their demand for the most stringent degree of constitutional scrutiny — rest on the presumption that donor disclosure laws 'always [represent] a severe burden on First Amendment rights.'"
But the Americans for Prosperity Foundation and the Thomas More Law Center are using a 1958 Supreme Court case to argue they don't have to reveal their donors to the state of California, even on a confidential basis.
In NAACP v. Alabama, the Supreme Court ruled that the NAACP did not have to release the names of its members because it would have put Black people at risk of harassment, or worse, in the Deep South in the 1950s. The Americans for Prosperity Foundation and the Thomas More Law Center are arguing their donors will also face harassment, so they have a constitutional right to keep them confidential (which they already are by California law).
Historically, the Supreme Court has strongly upheld disclosure laws, but it's not clear to legal experts how the three newest justices (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) will rule on transparency issues.
For Barrett, this case in particular could be a conflict of interest. The political advocacy affiliate of the Americans for Prosperity Foundation acknowledged spending "seven figures" — but did not disclose an exact amount — on advertising in support of Barrett's nomination to the Supreme Court last fall.
As a result, three Democratic lawmakers wrote a letter urging Barrett to recuse herself from the case, USA Today reported. But she did participate in Monday's arguments.
- Supreme Court says Alaska's cap on political donations is too low ›
- Despite efforts, campaign cash remains hidden in New Mexico - The ... ›
- Court to hear case challenging Calif. donor disclosure law - The ... ›
Public figures live on within the words they are remembered by. To understand the effect they had on history, their words need to be documented.
No one is absolutely sure of exactly what Abraham Lincoln said in his most famous speech, the Gettysburg Address. Five known manuscripts exist, but all are slightly different. Every newspaper story from the day contains a different account.
In the case of modern presidents, for the official record, we rely on transcriptions of all their speeches collected by the national government.
But in the case of Donald Trump, that historical record is likely to have a big gap. Almost 10 percent of his public speeches as president are excluded from the official record. That means a false picture of the Trump presidency is being created in the official record for posterity.
In 1957, the National Historical Publications Commission, a part of the National Archives, recommended developing a uniform system so all materials from presidencies could be archived. They did this to literally save presidential records from the flames: Warren G. Harding's wife claimed to have burned all his records, and Robert Todd Lincoln burned all his father's war correspondence. Other presidents who had their records intentionally destroyed include Chester A. Arthur and Martin Van Buren.
So the government collects and retains all presidential communications — including executive orders, announcements, nominations, statements and speeches. This includes any public verbal communications by presidents, which are also placed in the Compilation of Presidential Documents.
These are part of the official record of any administration, published by the National Archives. In most presidencies, the document or transcript is available a few days to a couple of weeks after any event. At the conclusion of an administration, these documents form the basis for the formal collections of the Public Papers of the President.
As a political scientist, I'm interested in where presidents give speeches. What can be learned about their priorities based on their choice of location? What do these patterns tell us about administrations?
For example, Barack Obama primarily focused on large media markets in states that strongly supported him. Trump went to supportive places as well, including small media markets such as Mankato, Minn., where the airport was not even large enough to accommodate the regular Air Force One.
I found something odd when I began to organize my own database of locations for Trump's speeches. I was born and raised in Louisville, so I pay attention to Kentucky. I knew that on March 20, 2017, he addressed a rally in Louisville — a meandering speech that touched on everything from coal miners to the Supreme Court, China to building a border wall and the "illegal immigrants" who were, he said, robbing and murdering Americans.
But when I looked at the compilation a few months later, I couldn't find the speech. No problem, I thought. They are running behind and will put it in later.
A year later, it was still not there. Furthermore, others were missing. These were not any speeches, only the rallies. By my count, 147 separate transcripts for public speaking events are missing from Trump's official records — just above 8 percent of his presidential addresses.
A 1978 law says administrations must retain "any documentary materials relating to the political activities" of the president or his staff if such activities "relate to or have a direct effect upon the carrying out" of the president's official or ceremonial duties.
An administration may exclude records that are purely private or don't have an effect on official duties. All public events are included, such as quick comments on the South Lawn, short exchanges with reporters and all public speeches, radio addresses and even public telephone calls to astronauts aboard space shuttles.
But Trump's widely attended rallies, and what he said at them, have so far been omitted from the public record his administration supplied to the Compilation of Presidential Documents. And while historians and the public could make transcripts from publicly available videos, that still does not address the need to have a complete official collection of the 45th president's statements.
Federal law says presidents may exclude "materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of ... duties of the President."
This has been interpreted to mean an administration could omit notes, emails or other documentation from what it sends to the compilation. While many presidents do not provide transcripts for speeches at private fundraising events, rallies covered by America's press corps do not likely fall under these exclusions.
Government documents are among the primary records of who we are as a people.
These primary records speak to Americans directly; they are not what others tell us or interpret for us about our history. The government compiles and preserves these records to give an accurate accounting of the leaders the country has chosen. They provide a shared history in full, instead of an excerpt or quick clip shown in a news report.
Since 1981, the public has legally owned all presidential records. As soon as a president leaves office, the National Archivist gets legal custody of all of them. Presidents are generally on their honor to be good stewards of history. There is no real penalty for noncompliance.
But these documents have so far always been available to the public — and they've been available quickly. Internal documents like memos or email face a rigorous archival review that lasts years before they are even accessible. All public speeches of every president since Bill Clinton have been available online. Until Trump, there was nothing missing.
By removing these speeches, Trump is creating a false perception of his presidency, making it look more serious and traditional than it was.
That Louisville speech, for example, is still among the missing.
- Can the Constitution stop the government from lying to the public ... ›
- President Trump, Congress and broken standards of democracy ... ›
- How Trump is using religion to undermine our democracy - The ... ›
- The democracy Trump leaves behind: His 7 most serious tests of the ... ›
- Trump rails anew against a resilient democracy - The Fulcrum ›
Joe Biden has plenty of campaign promises to keep, beyond the obvious and enormous top priorities of corralling the coronavirus and stabilizing the economy. And that's made democracy reform groups, which have never counted him as an impassioned ally, newly skeptical their priorities will get addressed in his new administration.
Their anxiety has come to the surface this week. A coalition of 170 progressive good governance and voting rights organizations asked the president-elect to elevate a collection of fix-the-system proposals into his first 100 days' agenda. Separately, one of the most influential such groups, RepresentUs, lambasted the Biden transition for "an omission of epic proportions" by giving short shrift to the issues it cares about.
Their impatience, just days after Biden's victory became clear, underscores the precarious position the cause of fixing democracy's dysfunction has in the public policy agenda.
At the same time, however, Speaker Nancy Pelosi has signaled she may revive the sweeping election process, government ethics and money-in politics legislation known as HR 1, and have the House pass it again in January even before Biden's inauguration.
Doing so "right off the bat," she told reporters before her Democratic majority was trimmed by about a dozen seats on Election Day, would "reduce the role of big, dark, special-interest money that prevents us from having policies that the American people need."
That could only happen, though, if the Democrats win both runoffs in Georgia in January and take the narrowest possible control of the Senate. Otherwise, HR 1 and all the other legislation on the good governance wish list — including a restoration of the Voting Rights Act and a package to curb executive power abuses — would continue to get ignored to death by GOP Majority Leader Mitch McConnell.
Biden has backed taxpayer funding of congressional and presidential campaigns — a Holy Grail for many reform groups — since he was a new Delaware senator in the 1970s. And early in his campaign for the Democratic nomination he unveiled a full slate of proposals for expanding voting rights, curbing money's sway over campaigns, bolstering government ethics and recalibrating the balance of power.
But, unlike seven of his rivals in the sprawling early field, in the summer of 2019 he declined to sign a pledge to put those issues on top of his legislative agenda if elected. And, after he wrapped up the nomination, it appeared to take a concerted lobbying effort to get a robust section on democracy reform added to the party platform — just in time for a convention when almost all mentions of the topic were about the need to assure easy voting in the pandemic-upended election.
It was that group that went public Tuesday with a manifesto calling on Biden to both push hard for HR 1, whether Congress stays divided or not, but also make 30 different moves by executive order to promote voting rights and assure his administration is more honest, transparent, responsive and respectful of checks and balances than in the past.
The most important moves on the coalition's list, it said, would be requiring federal social services agencies to help the people they serve register to vote; tightening the ethics pledge for political appointees; curbing the revolving door between the executive branch and lobbyist and corporate offices; refusing to have anything to do with fundraising by so-called super PACS; posting White House visitor logs; and making public all the work of the White House office of legal counsel.
For the organizations in the group, any of these changes would represent a dramatic shift from the past four years. President Trump, who won partly on a vow to "drain the swamp," has done nothing of the kind while upending virtually avery norm of democracy he could get his hands on.
Most recently, and potentially most consequentially, has been his decision to contest his defeat last week and in the meantime refuse to cooperate in the transition. But along the way he has challenged the precepts of open and ethical government by commingling his business interests with government work, choosing secrecy over transparency at nearly every turn and thwarting all congressional efforts to oversee or investigate his activities.
But there is no time to wait, said Josh Silver, who runs the influential reform group RepresentUs. And the signals from the Biden transition team that such issues have fallen to the second tier demonstrate "an omission of epic proportions."
It "follows a pattern of Democratic presidential candidates talking big about these issues on the campaign trail and promptly ignoring them when the chips are down. That's why our nation is in the perilous position we're in now," he said in an exceptionally harsh statement Monday. "It just requires leadership that prioritizes these reforms. Based on President-elect Biden's Day 1 agenda, it's not going to happen, and he is guaranteeing more dysfunction, more authoritarianism and more instability."
Biden will likely focus first on proposals that could attract bipartisan support — starting with providing economic relief during the resurgent pandemic and then moving on to improving the nation's crumbling infrastructure and using the climate change crisis as the basis for job creation.
The political dynamic on Capitol Hill means Biden may have to pull back from some policy proposals that are mainly goals of the left and have little or no traction among conservatives. Democracy reform, in the main, falls in that bucket
- Democracy advocates plea with Biden not to downgrade reforms ... ›
- The democracy reform and Black political agendas must align - The ... ›
- Biden backs vote-at-home, says Trump out to undermine election ... ›
- Biden unveils his democracy reform agenda - The Fulcrum ›
- Democratic ticket hasn't pushed the reform agenda - The Fulcrum ›
- McConnell finally accepts Biden's victory - The Fulcrum ›
- Why Biden needs to name a democracy czar - The Fulcrum ›
- Democracy reform groups seek Biden's suppor - The Fulcrum ›
- Time to make sure voting remains easy again in 2022 - The Fulcrum ›
- HR 1 ad campaign focuses on keeping Democrats in line - The Fulcrum ›
The sun has set on one of the earliest and most influential Washington good-government groups: the Sunlight Foundation, which pushed transparency in all levels of government and politics as an essential cure for democracy's problems.
Sunlight's "role is no longer essential to its original central mission," Board Chairman Michael Klein said in announcing the group's shuttering last week. "Virtually all of the activities and staff of Sunlight have been transferred to other engaged institutions, or closed."
Founded 15 years ago, the nonprofit sought to leverage once-innovative technologies to push government transparency and encourage rigorous oversight. It was named to reflect the famed aphorism coined a century ago by Justice Louis Brandeis: "Sunlight is said to be the best of disinfectants."
The organization helped create more than four dozen public records databases and other tools to shed light on political, policymaking and lobbying activity. Some of the more prominent projects are now under different management — including up-to-date and sortable reports of foreign spending to lobby Washington (now at the Center for Responsive Politics) and detailed records of how Congress spends money on itself (now at ProPublica).
The group's demise had been on the horizon for years, though. While it was once a digital trailblazer, the internet's fast and robust growth led many other organizations to follow Sunlight's model. With more players on the scene, such tools as the OpenCongress legislative tracking database became obsolete.
The series of federal court decisions in the past decade relaxing campaign finance disclosure requirements and allowing corporations to spend unlimited amounts in congressional and presidential elections also hindered its ability to advocate for more regulation of money in politics.
Four years ago, the group came close to a shutdown or merger after an unsuccessful search for a new executive director. But after a few months the board had found a new top staffer and assigned him to make deep cuts but keep the operation going.
Still, Sunlight struggled financially. Although donations, mainly from democracy reform philanthropies, surged to $2.2 million two years ago, after plummeting below $500,000 for a couple of years, that was still less than half what they had been as recently as 2015.
- A constitutional curb on campaign finance? - The Fulcrum ›
- Government watchdogs over-emphasize waste but under-stress ... ›
- House committee proposes transparency enhancements - The ... ›
- Sunlight Foundation - The Fulcrum ›