Amicus Curiae Brief — Americans for Prosperity Foundation, Petitioner v. Rob Bonta, Attorney General of California

Supreme Court briefMar 1, 2021

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Nos. 19-251, 19-255

In The

AMERICANS FOR PROSPERITY FOUNDATION, Petitioner,

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF CALIFORNIA, Respondent.

THOMAS MORE LAW CENTER, Petitioner,

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF CALIFORNIA, Respondent.

On Writs of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF THE FLOYD ABRAMS INSTITUTE

FOR FREEDOM OF EXPRESSION

AT YALE LAW SCHOOL AS AMICUS CURIAE

IN SUPPORT OF NEITHER PARTY

MICHAEL LINHORST

STEPHEN STICH

Media Freedom &

Information Access Clinic

Yale Law School

127 Wall Street

New Haven, CT 06511

(203) 432-4992

FLOYD ABRAMS

Counsel of Record

32 Old Slip

New York, NY 10005

fabrams@cahill.com

(212) 701-3621

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT ............................................................... 3

THE FIRST AMENDMENT IS VINDICATED

BY THE IDENTIFICATION OF LARGE

DONORS TO CHARITABLE ENTITIES

THAT TAKE POSITIONS ON ISSUES OF

PUBLIC IMPORTANCE.................................. 3

The public interest in donor disclosure

identified in the election context is also

important outside the election context ........... 4

The exacting scrutiny described in the

Court’s election cases applies in the same way

to non-election cases......................................... 8

Examples of nonprofits’ activities

demonstrate the public’s compelling need for

disclosure ........................................................ 12

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Buckley v. American Constitutional Law Foundation,

525 U.S. 182 (1999) ............................................. 5, 9

Buckley v. Valeo, 424 U.S. 1 (1976) ............ 4, 7, 10, 11

Citizens Against Rent Control/Coalition for Fair

Housing v. Berkeley, 454 U.S. 290 (1981)......... 5, 13

Citizens United v. Federal Election Commission, 558

U.S. 310 (2010) ............................................... passim

Center for Individual Freedom v. Madigan, 697 F.3d

464 (7th Cir. 2012)................................................. 10

Davis v. Federal Election Commission, 554 U.S. 724

(2008)…………………………………………………..10

First National Bank of Boston v. Bellotti, 435 U.S.

765 (1978)....................................................... 5, 6, 16

Independence Institute v. Williams, 812 F.3d 787

(10th Cir. 2016)...................................................... 10

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ........... 11

McConnell v. Federal Election Commission, 540 U.S.

93 (2003).......................................................... passim

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

(1958).................................................................. 1, 11

National Association of Manufacturers v. Taylor, 582

F.3d 1 (D.C. Cir. 2009) .......................................... 10

National Organization for Marriage v. McKee, 649

F.3d 34 (1st Cir. 2011) ..................................... 10, 11

United States v. Harriss, 347 U.S. 612 (1954) ......... 10

Constitutional Provisions

U.S. Const. amend. I ......................................... passim

Other Authorities

Louis Brandeis, Other People’s Money 62 (National

Home Library Foundation ed. 1933) ...................... 7

Matt Corley, CREW Complaints Target Network

Responsible for at Least $36 Million in Dark

Money, Citizens for Resp. and Ethics in Wash.

(Nov. 20, 2020) ....................................................... 13

Anthony Johnstone, A Madisonian Case for

Disclosure, 19 Geo. Mason L. Rev. 416 (2012) ....... 7

Matthew Kelly, Dark Money Accounts for Roughly a

Quarter of Pro-Medicaid Expansion Committee’s

Funds, The Kan. City Star (July 13, 2020) .......... 14

Nicholas Kulish & Mike McIntire, Why an Heiress

Spent Her Fortune Trying to Keep Immigrants Out,

N.Y. Times (Aug. 14, 2019) ................................... 15

Rachel Kurzius, This New Campaign Plans to Spend

‘Seven Figures’ Pushing for D.C. Statehood. But It

Won’t Disclose Its Funders, DCist (May 23, 2019) 14

Shalini Ramachandran et al., Jan. 6 Rally Funded

by Top Trump Donor, Helped by Alex Jones,

Organizers Say, Wall St. J. (Feb. 1, 2021) ........... 15

Brian Schwartz, Dark Money Health-Care Group

Runs Ad Blitz Against Trump Heading into

Election Day, CNBC (Nov. 3, 2020) ...................... 12

Brian Schwartz, Pro-Trump Dark Money Groups

Organized the Rally that Led to Deadly Capitol

Hill Riot, CNBC (Jan. 9, 2021) ............................. 15

Addie Slanger, Progressive-Leaning D.C. Nonprofit

Spends Nearly $5 Million for Marijuana

Legalization, Bozeman Daily Chronicle (Oct. 26,

2020) ....................................................................... 14

Rules

Supreme Court Rule 37.6 ........................................... 6

Treatises

Stephen M. Shapiro et al., Supreme Court Practice

§ 13.14 (11th ed. 2019) ........................................ 6, 7

INTEREST OF AMICUS CURIAE1

The Floyd Abrams Institute for Freedom of

Expression at Yale Law School promotes freedom of

speech, freedom of the press, access to information,

and government transparency. The Abrams Institute

has an interest in defending robust constitutional

protections for the freedoms of speech and press as

critical safeguards of our democratic system. This case

relates directly to that interest, and this brief, amicus

curiae, is submitted to assure that potentially

relevant First Amendment principles are fully set

forth for the Court’s consideration.

SUMMARY OF THE ARGUMENT

The petitioners and many of the amici supporting

them cite and rely upon First Amendment interests in

favor of preserving donor anonymity. There is no

doubt that a level of First Amendment protection has

been afforded to protect anonymity in a variety of

circumstances. See generally NAACP v. Alabama ex

rel. Patterson, 357 U.S. 449 (1958). But there is a

strong, competing First Amendment interest that

neither the petitioners nor any of the plethora of amici

briefs submitted at the certiorari stage even

identified: the public’s need for disclosure of

information that will enable it to “make informed

decisions and give proper weight to different speakers

The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

neither counsel for a party nor a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than amicus curiae made a monetary

contribution to the preparation or submission of this brief.

and messages.” Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 371 (2010).

The Floyd Abrams Institute for Freedom of

Expression at Yale Law School submits this brief to

draw the Court’s attention to that important First

Amendment interest in more rather than less public

disclosure. We take no position on the ultimate

resolution of this case. We agree with petitioner

Americans for Prosperity Foundation that exacting

scrutiny should be applied in determining whether

the California law at issue is held to be constitutional.

But unlike that entity and its amici allies, we submit

that the public interest in disclosure of large donors is

sufficiently important to satisfy exacting scrutiny in

cases in which their charitable organizations speak

out about, and thereby seek to influence, public policy.

The Question Presented by Americans for

Prosperity Foundation illustrates the significance of

the issue. It distinguishes between the exacting

scrutiny it claims should be applied in cases that arise

“outside the election context” and ones within that

context. See Ams. for Prosperity Found. Br. i.

Petitioner Thomas More Law Center’s first Question

Presented draws an identical distinction. See Thomas

More Law Ctr. Br. i. But that distinction has not been

made by this Court, and it is one that we urge the

Court not to make. While the petitioners may yet

prevail under exacting scrutiny in this case, the

impact on the public’s First Amendment interest in

accessing information about who is trying to influence

the resolution of public discussion or debate regarding

significant matters of public policy would be gravely

impaired if this Court were to limit the applicability

of decisions sustaining public access to donor

information only to cases arising in the election

context. In the non-election context as well, when

public issues are discussed or debated, the public’s

First Amendment interest in disclosure is similarly

strong and the application of exacting scrutiny should

lead to the dissemination of more rather than less

information about who is actually trying to persuade

the public.

We begin with the caselaw that not only has

repeatedly sustained donor disclosure requirements

after engaging in exacting scrutiny but has done so

based on the First Amendment interest of a betterinformed public, an interest that is not dependent on

the pendency of an election. We then turn to examples

of charitable entities engaging in advocacy that

illustrate the public’s need to know the donors trying

to influence public debate, yet where that information

would remain hidden if the petitioners’ view of the law

were applied.

ARGUMENT

THE

FIRST

AMENDMENT

VINDICATED BY THE IDENTIFICATION

OF LARGE DONORS TO CHARITABLE

ENTITIES THAT TAKE POSITIONS ON

ISSUES OF PUBLIC IMPORTANCE

This Court has long recognized the public’s strong

First Amendment interest in understanding who is

donating to electoral groups, and that interest applies

with equal force to public disclosure of donors to

groups that advocate on issues of public policy.

Knowing the identity of large donors to such

organizations is necessary for the public to adequately

gauge the organizations’ advocacy and thereby

participate, in an informed way, in public debate. This

First Amendment interest in disclosure of major

donors is sufficiently important to satisfy exacting

scrutiny.

A. The public interest in donor disclosure

identified in the election context is also

important outside the election context

The public has an important First Amendment

interest in knowing the information necessary to

“make informed decisions and give proper weight to

different speakers and messages.” Citizens United v.

Fed. Election Comm’n, 558 U.S. 310, 371 (2010). As

this Court’s line of election cases has repeatedly

explained, the public’s interest in disclosure is rooted

in the need to “‘provid[e] the electorate with

information’ and ‘insure that the voters are fully

informed’ about the person or group who is speaking.”

Id. at 368 (quoting McConnell v. Fed. Election

Comm’n, 540 U.S. 93, 196 (2003), then Buckley v.

Valeo, 424 U.S. 1, 76 (1976)).

While the Court has often used elections cases to

articulate the public’s First Amendment interest in

disclosure, it has never suggested that that interest is

limited to speech about elections. In fact, it has said

the opposite. See id. at 369 (“[W]e reject Citizens

United’s contention that the disclosure requirements

must be limited to speech that is the functional

equivalent of express advocacy.”); McConnell, 540

U.S. at 194 (rejecting “the notion that the First

Amendment requires Congress to treat so-called issue

advocacy differently from express advocacy”). Indeed,

the Court in Citizens United upheld a disclosure

requirement

applied

“commercial

advertisements,” which mentioned a candidate’s

name only in the context of advertising an upcoming

documentary. Citizens United, 558 U.S. at 368. The

Court explained that disclosing the speaker behind

such communications enabled the public to “make

informed choices in the political marketplace.” Id. at

367 (quoting McConnell, 540 U.S. at 197).

The Court has also recognized the public’s First

Amendment interest in knowing the source of

speech—an interest that petitioners do not address—

in cases that concern ballot initiatives rather than the

election of candidates. For example, in Buckley v.

American Constitutional Law Foundation, the Court

recognized that a law requiring disclosure of all

contributors to ballot initiatives “responds to [the]

substantial state interest” of “disclosure as a control

or check on domination of the initiative process by

affluent special interest groups.” 525 U.S. 182, 202-03

(1999);

see

also

Citizens

Against

Rent

Control/Coalition for Fair Hous. v. City of Berkeley,

454 U.S. 290, 298-99 (1981) (striking down a

California law imposing a $250 concerted contribution

cap on ballot measures on the ground that existing

law requiring disclosure of all contributors of more

than $50 rendered the marginal value of the

contribution cap in advancing pro-disclosure interests

“insubstantial”); First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765, 791-92, 792 n.32 (1978) (recognizing

that the proper response to corporate speech on

referenda was for the public to “consider, in making

their judgment, the source and credibility of the

advocate,” which might “require[]” identification of

the source of the speech).

As demonstrated by these authorities, these “First

Amendment interests of individual citizens seeking to

make informed choices,” McConnell, 540 U.S. at 197

(quoting McConnell v. Fed. Election Comm’n, 251 F.

Supp. 2d 176, 237 (D.D.C. 2003)), apply with no less

strength when citizens engage in democratic debate

about questions of public policy than they do during

an election campaign. Whether an election is at hand

or not, “the people in our democracy are entrusted

with the responsibility for judging and evaluating the

relative merits of conflicting arguments,” and

therefore, “[i]dentification of the source of advertising

may be required as a means of disclosure, so that the

people will be able to evaluate the arguments to which

they are being subjected.” First Nat’l Bank of Bos., 435

U.S. at 791, 792 n.32. Without disclosure, people are

unable to discern whether a group’s donors stand to

personally benefit from the position it advocates or

have personal knowledge or expertise in the subject.

People are stymied in their efforts to gauge or respond

to the group’s speech. Without disclosure, they are left

to weigh opposing statements without a scale.

Indeed, this Court’s own rules reflect the

significance of disclosure in appraising speech on

matters of public importance. Supreme Court Rule

37.6 requires amici to disclose the identities of “every

person other than the amicus curiae, its members, or

its counsel” who made a “monetary contribution”

intended to fund the preparation or submission of the

brief. Sup. Ct. R. 37.6. This rule presupposes that

disclosure of the identity of those who fund a brief may

bear upon the Court’s assessment of it and that, in

particular, when party counsel are disclosed as

contributors, they “should expect the Court to accord

their amicus briefs a lesser degree of credibility.”

Stephen M. Shapiro et al., Supreme Court Practice

§ 13.14 (11th ed. 2019).

The public’s need for disclosure is a First

Amendment interest. Disclosure of major donors to

groups that seek to influence matters of public debate

ensures the American people have the information

they need “to inquire, to hear, to speak, and to use

information to reach consensus,” which is “a

precondition to enlightened self-government.”

Citizens United, 558 U.S. at 339; see also Anthony

Johnstone, A Madisonian Case for Disclosure, 19 Geo.

Mason L. Rev. 413, 416 (2012) (“[D]isclosure

emphasizes informed popular sovereignty as the most

effective check on factions consistent with the First

Amendment’s republican purpose.”). That is why

public disclosure is “a reasonable and minimally

restrictive method of furthering First Amendment

values.” Buckley, 424 U.S. at 82. As Justice Brandeis

famously recognized, “[p]ublicity is justly commended

as a remedy for social and industrial diseases.

Sunlight is said to be the best of disinfectants.” Id. at

67 (1976) (quoting Louis Brandeis, Other People’s

Money 62 (National Home Library Foundation ed.

1933)).

Disclosure also helps the public, whether in an

election season or not, to avoid confusion or

misattribution of a message to the incorrect speaker,

and thus effectively understand or respond to the

message. It deters attempts by independent groups to

influence the “political marketplace” and the electoral

process “while hiding behind dubious and misleading

names.” Citizens United, 558 U.S. at 367 (quoting

McConnell, 540 U.S. at 197); see also McConnell, 540

U.S. at 197 (noting the deceptive nature of running

advertisements on behalf of “‘The Coalition–

Americans Working for Real Change’ (funded by

business organizations opposed to organized labor),

‘Citizens for Better Medicare’ (funded by the

pharmaceutical industry), [and] ‘Republicans for

Clean Air’ (funded by brothers Charles and Sam

Wyly)”). Knowledge of the funding sources behind

messages helps the public become more informed,

discerning consumers of the messaging, which

promotes self-government and a properly functioning

“political marketplace.”

B. The exacting scrutiny described in the

Court’s election cases applies in the

same way to non-election cases

Just as the public’s First Amendment interest in

disclosure is no different inside the election context

than outside it, the exacting scrutiny delineated in

election cases should be applied in the same way in

non-election cases. Contrary to the implication of the

Question Presented—and claims made outright by

petitioner Thomas More Law Center and some of the

amici—this Court and several Courts of Appeals have

already held that exacting scrutiny applies outside

the context of elections.

The Citizens United Court explicitly rejected

attempts to limit the disclosure requirements at issue

there to only “the functional equivalent of express

advocacy.” Citizens United, 558 U.S. at 368-69. It

observed that the Court has repeatedly upheld

disclosure requirements in circumstances outside

express electoral advocacy, even where other forms of

speech-related regulation would be impermissible. Id.

at 369. The Court’s holding in Citizens United recalls

its earlier application of exacting scrutiny to laws

impacting ballot initiatives. See Am. Constitutional

Law Found., 525 U.S. at 204 (holding that Colorado

law requiring disclosure of paid ballot initiative

circulators “fail[s] exacting scrutiny”).

These cases unequivocally refute petitioner

Thomas More Law Center’s argument that the use of

exacting scrutiny is limited to “election-campaign

regulations” because of the government’s unique

“interest in preventing electoral corruption.” Thomas

More Law Ctr. Br. 29. American Constitutional Law

Foundation applied “exacting scrutiny” to a law

requiring disclosure of certain information related to

ballot initiatives immediately after holding that ballot

initiatives do not present a risk of corruption. See Am.

Constitutional Law Found., 525 U.S. at 203 (holding

that ballot initiatives do not involve the risk of “‘quid

pro quo’ corruption present when money is paid to, or

for, candidates”). The Court, in applying exacting

scrutiny, observed the public’s interest in knowing

“the source and amount of money spent by proponents

to get a measure on the ballot.” Id. at 203-04.

The same decisions dispose of the suggestion by

some amici that no non-electoral disclosure laws are

constitutional.2 The amici’s suggestion also founders

2 In the brief submitted by Free Speech Coalition, et al. in

support of granting certiorari, amici argue that any interest

balancing test, up to and including strict scrutiny, cannot apply

to disclosure requirements for nonprofit organizations. Free

Speech Coal. Br. 7 (“States should not impose such disclosure

requirements on any nonprofit organizations. Nor should courts

evaluate such requirements through the use of any ‘interest

balancing test,’ or any ‘standard of review’—whether it be

‘exacting scrutiny’ or ‘strict scrutiny.’”). Amici, in the brief

submitted by the Institute for Free Speech supporting certiorari,

argue that there is only “one limited exception” to the Court’s

general practice of “repeatedly striking down donor disclosure

regimes,” which is “in the context of money given and spent on

political campaign advocacy.” Inst. for Free Speech Br. 1.

on the shoals of long-settled precedent upholding

disclosure requirements outside the election context.

See United States v. Harriss, 347 U.S. 612, 625 (1954)

(upholding disclosure requirements related to

lobbying expenditures).

Several circuit courts have followed this Court’s

lead and applied the exacting scrutiny standard

outside the election context. The D.C. Circuit upheld

a statute requiring registered lobbyists to disclose any

donor organizations that met a monetary contribution

statutory threshold, concluding that the disclosure

requirement survived the same level of scrutiny

applied “in Davis [v. Fed. Elec. Comm’n, 554 U.S. 724

(2008)], McConnell, and Buckley [v. Valeo].” Nat’l

Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 20 (D.C. Cir.

2009). The Tenth Circuit applied exacting scrutiny in

upholding the constitutionality of Colorado’s Fair

Campaign Practice Act, which imposed disclosure

requirements on, among other things, some forms of

“genuine issue advocacy” unconnected to a political

campaign or advocacy for a particular candidate.

Independence Inst. v. Williams, 812 F.3d 787, 792

(10th Cir. 2016). Similarly, the Seventh Circuit

concluded that Citizens United “made clear that the

wooden distinction between express advocacy and

issue discussion does not apply in the disclosure

context” and upheld, under exacting scrutiny, a

disclosure requirement applied to independent issue

advocacy groups. Ctr. for Individual Freedom v.

Madigan, 697 F.3d 464, 484 (7th Cir. 2012). The First

Circuit has reached a similar conclusion. See Nat’l

Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011)

(applying exacting scrutiny to uphold Maine’s

disclosure requirements that reached issue discussion

as opposed to express advocacy).

Of course, exacting scrutiny does not always

require disclosure, for private persons may be able to

point to legitimate harms arising from disclosure in a

particular case. Outside the election context, just as

within it, a showing of “a reasonable probability that

the compelled disclosure of . . . contributors’ names

will subject them to threats, harassment, or reprisals

from either Government officials or private parties”

may chill association to a degree sufficient to justify

exceptions to disclosure. Buckley, 424 U.S. at 74; see

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,

462 (1958) (invalidating order to disclose NAACP’s

membership lists to Alabama based on “an

uncontroverted showing that on past occasions

revelation of the identity of its rank-and-file members

has exposed these members to economic reprisal, loss

of employment, threat of physical coercion, and other

manifestations of public hostility”). But these effects

on association must be “serious” and may not be

“speculative.” Buckley, 424 U.S. at 70. Public

disclosure must be the baseline expectation. See id. at

72 (concluding that the “the substantial public

interest in disclosure . . . outweighs the harm

generally alleged”). As Justice Scalia wrote,

“Requiring people to stand up in public for their

political acts fosters civic courage, without which

democracy is doomed.” John Doe No. 1 v. Reed, 561

U.S. 186, 228 (2010) (Scalia, J., concurring) (a society

that “campaigns anonymously . . . does not resemble

the Home of the Brave”).

C. Examples of nonprofits’ activities

demonstrate the public’s compelling

need for disclosure

The public’s First Amendment interest in

disclosure is illustrated by recent examples of

advocacy funded by anonymous donations. With the

donors’ identities hidden, the public is left in the dark

as to whether the donors are merely advocating a

position that benefits them financially or politically,

or whether they have any specialized knowledge or

expertise that should affect the weight given to their

views. This lack of disclosure inhibits the public’s

ability to “make informed choices in the political

marketplace,” McConnell, 540 U.S. at 197, and to

participate in debate on issues of national importance.

In this section, we provide four illustrative examples

of non-electoral speech in which disclosure of the

individuals or entities behind the speech is essential

for the public to evaluate their claims or participate in

the debate.

First, in the days before the 2020 general election,

social media users in several states encountered a

$400,000 advertising campaign warning them against

the supposed danger of an executive order by thenPresident Donald Trump aimed at lowering

prescription drug costs. Brian Schwartz, Dark Money

Health-Care Group Runs Ad Blitz Against Trump

Heading into Election Day, CNBC (Nov. 3, 2020),

https://www.cnbc.com/2020/11/03/dark-money-groupruns-ad-blitz-against-trump-week-beforeelection.html. The voiceover for one of the video

advertisements stated, “America needs a cure for

Covid-19 now and innovative biopharmaceutical

companies are rising to the challenge. So why is

President Trump risking American lives with

dangerous executive orders?” Id. The proper weight

given to these claims—and the proper response by

other speakers—necessarily depended on who was

speaking through the ads. The public’s understanding

of the message would be markedly different if it

turned out the ads were paid for by a group of

emergency room doctors, or an association of

insurance companies, or a single Democratic activist.

But the group responsible for the campaign, A

Healthy Future, did not disclose its donors. Matt

Corley,

CREW

Complaints

Target

Network

Responsible for at Least $36 Million in Dark Money,

Citizens for Resp. and Ethics in Wash. (Nov. 20, 2020),

https://www.citizensforethics.org/reportsinvestigations/crew-investigations/crew-complaintstarget-36-million-dark-money/ (reporting A Healthy

Future is wholly owned by A Public Voice, a 501(c)(4)

nonprofit). As is often the case, the group’s name gave

no indication of the people behind it. See Citizens

Against Rent Control, 454 U.S. at 298 (“[W]hen

individuals

corporations

speak

through

committees, they often adopt seductive names that

may tend to conceal the true identity of the source.”).

The people ultimately speaking through the ad

campaign remained unknown to the public, limiting

the ability of the public to gauge the campaign’s

claims and of anyone else to counter with speech that

could bolster or undermine the speaker(s’)

credibility.

Second, another group, North Fund, has inserted

itself into numerous local policy debates without

revealing who was behind its advocacy or what their

interests may have been, leaving the public unable to

“give proper weight” to its speakers or messages. In

Montana, North Fund spent at least $4.6 million

advocating for marijuana legalization—about 70

percent of the total expenditures in support of the

effort. Addie Slanger, Progressive-Leaning D.C.

Nonprofit Spends Nearly $5 Million for Marijuana

Legalization, Bozeman Daily Chronicle (Oct. 26,

2020), https://www.bozemandailychronicle.com/news/

politics/progressive-leaning-d-c-nonprofit-spendsnearly-5-million-for-marijuana-legalization/article_

90fded5b-1e86-5ea8-a98e-3e6949430993.html.

Missouri, it gave $1.5 million to a committee pushing

for a state constitutional amendment expanding

Medicaid, eclipsing the anti-expansion committee’s

total fundraising of $88,000. Matthew Kelly, Dark

Money Accounts for Roughly a Quarter of ProMedicaid Expansion Committee’s Funds, Kan. City

Star (July 13, 2020), https://www.kansascity.com/

news/politics-government/article244192572.html.

And in Washington, D.C., the group promised to

spend more than a million dollars on ads pushing for

D.C. statehood and aired in states with early

presidential primaries. Rachel Kurzius, This New

Campaign Plans to Spend ‘Seven Figures’ Pushing for

D.C. Statehood. But It Won’t Disclose Its Funders,

DCist (May 23, 2019), https://dcist.com/story/19/05/

23/this-new-campaign-plans-to-spend-seven-figurespushing-for-d-c-statehood-but-it-wont-disclose-itsfunders/. In none of those instances did the public

know who was behind the speech or what their

interests may be. Nor could they reasonably infer the

source(s’) identities or general motivations from the

potpourri of causes North Fund supports.

Third, on January 6, 2021, supporters of President

Trump gathered at the Ellipse outside the White

House for a rally called “March to Save America” that

was organized by the 501(c)(4) group Women for

America First. Brian Schwartz, Pro-Trump Dark

Money Groups Organized the Rally that Led to Deadly

Capitol Hill Riot, CNBC (Jan. 9, 2021),

https://www.cnbc.com/2021/01/09/pro-trump-darkmoney-groups-organized-the-rally-that-led-to-deadlycapitol-hill-riot.html. While reporters later identified

some of the primary funders of the rally, see Shalini

Ramachandran et al., Jan. 6 Rally Funded by Top

Trump Donor, Helped by Alex Jones, Organizers Say,

Wall St. J. (Feb. 1, 2021), https://www.wsj.com/

articles/jan-6-rally-funded-by-top-trump-donorhelped-by-alex-jones-organizers-say-11612012063,

other funders and the individuals behind Women for

America First remain unknown to the public.

Fourth, the philanthropy of Cordelia Scaife May is

yet another example of how donor disclosure is in the

public interest. May almost single-handedly funded

the development of modern conservative immigration

policies, all while keeping her involvement private.

Nicholas Kulish & Mike McIntire, Why an Heiress

Spent Her Fortune Trying to Keep Immigrants Out,

N.Y. Times (Aug. 14, 2019), https://www.nytimes.com/

2019/08/14/us/anti-immigration-cordelia-scaifemay.html. Several of May’s papers were recently

made public posthumously, revealing for the first time

that “she bankrolled the founding and operation of the

nation’s three largest restrictionist groups—the

Federation for American Immigration Reform,

NumbersUSA and the Center for Immigration

Studies—as well as dozens of smaller ones.” Id. In

1996, May founded the Colcom Foundation, which

continues to fund a range of 501(c)(3) and (4) groups

advancing conservative immigration policies, almost

two decades after her death. Id. The public, reviewing

the messages of those various groups, might have

evaluated them differently had it known that the

groups were all funded by the same individual, rather

than a groundswell of many Americans supporting

the same position.

In every one of these examples, the public was left

without key information necessary for it to “evaluate

the arguments to which [it was] being subjected,”

First Nat’l Bank of Bos., 435 U.S. at 792 n.32, and thus

to fully participate in the “political marketplace” of

ideas.

CONCLUSION

The Abrams Institute takes no position on whether

the Court should affirm or reverse the Court of

Appeals for the Ninth Circuit. However, we urge the

Court to reaffirm the public’s strong First

Amendment interest in knowing the source of speech

on non-electoral matters of public concern, and to hold

that exacting scrutiny applies to disclosure laws

outside the electoral context.

Respectfully submitted,3