Will: Supreme Court tackles sinister trends
The IRS scandal — the denial of essential tax-exempt status to conservative advocacy groups, thereby effectively suppressing the groups’ activities — demonstrates this: When government is empowered to regulate advocacy, it will be tempted to suppress some of it. And sometimes government will think like Oscar Wilde: “The only way to get rid of temptation is to yield to it.”
These truths should be on the Supreme Court’s nine fine minds on Friday when they consider whether to hear a challenge to a lower court’s decision that disregards some clear Supreme Court pronouncements pertaining to the First Amendment. The amendment says there shall be no laws abridging freedom of speech, but various governments are persistently trying to regulate, and perhaps chill, advocacy. The most recent wrinkle in this disreputable project comes from California.
California’s Democratic attorney general has decreed that all entities wishing to solicit tax-deductible contributions in California must disclose their donors to the state government. One such entity — unfortunately for the attorney general, but fortunately for the cause of freedom — is the Center for Competitive Politics. Its litigators are tenacious opponents of government attempts to appoint itself regulator of the marketplace of ideas.
The CCP asked the 9th U.S. Circuit Court of Appeals for protection from the attorney general’s decree. The appeals court sided with California’s attorney general, so the CCP is asking the U.S. Supreme Court to reverse the 9th circuit and rebuke California’s attorney general. Doing so, the Supreme Court would be defending a doctrine adumbrated in decisions over six decades.
In the 1950s, when the civil rights movement was surging, an Alabama court, pursuant to a state law requiring corporations doing business in the state to produce certain information, ordered the state chapter of the NAACP to produce, among other things, its membership lists. In 1958, the U.S. Supreme Court upheld the NAACP’s refusal, arguing that forced disclosure would serve no compelling state interest and would deter civil rights supporters from exercising their constitutional rights of free speech and association.
The 1958 ruling was not, as California’s attorney general suggests, limited to the circumstances of that time and place. And the NAACP ruling did not establish, as the 9th circuit believes, that governments can compel disclosure of donors’ participation unless the advocacy group (and charity and educational organization) can demonstrate the probability of threats or reprisals. This would leave governments with effectively unlimited power to intrude into the conduct of private associations.
Actually, from the NAACP and subsequent decisions has come the principle that compelled disclosure is an inherent injury to First Amendment rights. Therefore governments bear the burden of proving, under exacting judicial scrutiny, that compelled disclosure is a narrowly tailored response to a specific and paramount government interest.
Because California’s attorney general does not acknowledge this burden, she has not even attempted to demonstrate how compelled disclosure of donors serves any plausible law enforcement interest. Instead, she misreads cases concerning the source of so much First Amendment mischief — campaign finance regulations. From these, and with the 9th circuit’s approval, she conjures government’s power to demand, upon the invocation of an unspecified law enforcement interest, disclosure of donors to non-candidate private associations wishing to solicit contributions.
For almost eight decades, courts, without justification from the Constitution’s text or history, have been distinguishing between “fundamental” rights, such as speech and association, and supposedly lesser rights involving economic activity, property and contracts. When judging government infringements of these secondary rights, courts have adopted the extremely permissive “rational basis” test: Any government regulation is permissible if the government asserts, or a court can imagine, a rational basis for the regulation.
Now, California’s attorney general implicitly wants the rational basis test extended to government’s infringement of rights to which courts have ascribed “fundamental” status — speech and association. This demonstrates three converging dangers.
One is that of relegating some rights to inferior status. A second is that of making those supposedly non-fundamental rights vulnerable to the non-protection of the rational basis test. A third is that of allowing government, when it claims to be acting to prevent corruption or the appearance thereof, to merely assert a rational basis for regulating advocacy concerning public affairs.
By accepting the CCP’s appeal, the Supreme Court can stand athwart this confluence of sinister trends. And it can achieve this large good by doing something modest — by reminding the 9th circuit of a redundantly affirmed constitutional principle.
George Will writes for the Washington Post.