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

Supreme Court briefMar 31, 2021

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No. 19-251

In The Supreme Court of the United States

____________________

AMERICANS FOR PROSPERITY FOUNDATION,

Petitioner,

MATTHEW RODRIQUEZ, IN HIS OFFICIAL CAPACITY AS

THE ACTING ATTORNEY GENERAL OF CALIFORNIA,

Respondent.

____________________

On Writ of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

____________________

BRIEF OF U.S. SENATORS AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

____________________

DANIEL P. CHIPLOCK

Counsel of Record

Lieff Cabraser Heimann &

Bernstein, LLP

250 Hudson Street

New York, NY 10013

dchiplock@lchb.com

212.355.9500

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST .......................................... 1

SUMMARY OF ARGUMENT........................................... 2

ARGUMENT ..................................................................... 7

II.

THE BROAD HISTORICAL STRUGGLE

BETWEEN SPECIAL INTERESTS AND

THE PUBLIC INTEREST PROVIDES THE

NECESSARY CONTEXT FOR THIS CASE. ....... 7

Secrecy Strengthens the Power of

the Influencer Class. .................................. 7

Today’s Influencers Hide Behind

Nonprofit Entities to Spread

Political Influence in Secret..................... 20

THE GOVERNMENT HAS A STRONG

INTEREST IN REGULATING

NONPROFITS, AND DISCLOSURE IS AN

IMPORTANT TOOL............................................ 23

The Circumstances of This Case

Plainly Set It Apart from CivilRights Era Decisions Protecting the

Freedom to Associate. .............................. 23

The Court Should Resist a Broad

Ruling Establishing a New

Constitutional Right to Anonymous

Unlimited Spending. ................................ 30

CONCLUSION................................................................ 34

TABLE OF AUTHORITIES

Page(s)

Cases

Citizens United v. Fed. Elec. Comm'n,

558 U.S. 310 (2010) ..................................... 4, 9, 20

John Doe No. 1 v. Reed,

561 U.S. 186 (2010) ................................. 30, 32, 34

Marshall v. Baltimore & Ohio R.R. Co.,

57 U.S. 314 (1853) .................................................8

McCutcheon v. Fed. Elec. Comm’n,

572 U.S. 185 (2014) ...............................................8

NAACP v. Alabama,

357 U.S. 449 (1958) ...................................... 27, 32

SpeechNow.org v. Fed. Elec. Comm'n,

599 F.3d 686 (D.C. Cir. 2010) ...............................9

Statutes

2 U.S.C. § 441(b) (2000) .............................................9

26 U.S.C. § 501(c)(4)-1(a)(1)(ii) ................................21

Rules

Supreme Court Rule 37.3(a) ......................................1

Regulations

Treas. Reg. § 1.501(c)(4)-1(a)(2)(i) ...........................21

Treas. Reg. § 1.501(c)(4)-1(a)(2)(ii) ..........................21

iii

TABLE OF AUTHORITIES

(continued)

Page

Articles

Abby K. Wood,

Citizens United Turns 10 Today: Here’s

What We’ve Learned About Dark Money,

WASH. POST (Jan. 21, 2020) ................................18

Alexander Hertel-Fernandez,

Asymmetric Partisan Polarization, Labor

Policy, and Cross-State Political PowerBuilding, 685 ANNALS OF THE AMERICAN

ACADEMY OF POLITICAL & SOCIAL SCIENCE

64 (September 2019) ...........................................26

America’s Largest Private Companies,

FORBES (2020) .....................................................28

Americans’ Views on Money in Politics,

N.Y. TIMES & CBS NEWS (June 2, 2015) ............18

Anna Massoglia,

State of Money in Politics: Billion-Dollar

‘Dark Money’ Spending Is Just the Tip of

the Iceberg,

OpenSecrets.org (Feb. 21, 2019)..................... 6, 14

Anna Massoglia,

Tax Returns Reveal One Six-Figure Donor

Accounts For Entirety of “Dark Money”

Funding Whitaker’s Nonprofit,

OpenSecrets.org (Nov. 21, 2018) ........................14

TABLE OF AUTHORITIES

(continued)

Page

Brian Schwartz,

Dark-Money GOP Fund Funneled Millions

of Dollars to Groups that Pushed Voter

Fraud Claims, CNBC (Jan. 13, 2021) ................29

Chris Megerian and Anthony York,

California Probe of Campaign Donations

Sheds Light on ‘Dark Money’, L. A. TIMES

(Nov. 3, 2013) ......................................................23

Daniel E. Chand,

“Dark Money” and “Dirty Politics”: Are

Anonymous Ads More Negative?, 19 BUS.

AND POL. 454 (2017) ...................................... 24, 26

Daniel I. Wiener,

Citizens United Five Years Later, Brennan

Center for Justice at New York University

School of Law (2015) ............................... 11, 19, 25

Franziska Barczyk,

Revealed: Conservative Group Fighting to

Restrict Voting Tied to Powerful Dark

Money Network, THE GUARDIAN (May 27,

2020) ....................................................................29

Jane Mayer, Inside the Koch-Backed Effort to

Block the Largest Election-Reform Bill in

Half a Century, THE NEW YORKER (Mar. 29,

2021) .............................................................. 17, 29

TABLE OF AUTHORITIES

(continued)

Page

Jeff John Roberts,

5 Surprising Consequences from a Decade

of Citizens United, FORTUNE (Jan. 23,

2020) ....................................................................26

Jennifer A. Heerwig & Katherine Shaw,

Through a Glass, Darkly: The Rhetoric and

Reality of Campaign Finance Disclosure,

102 GEO. L.J. (2014) ........................................ 3, 14

Joe Hagan,

The Coming Tsunami of Slime, N.Y. MAG.

(Jan 22, 2012)......................................................25

John C. Coates IV,

Corporate Politics, Governance, and Value

Before and After Citizens United, 9 J. OF

EMPIRICAL LEGAL STUD. 657 (2012)....................15

John Wagner & Scott Clement,

‘It’s Just Messed Up’: Most Think Political

Divisions as Bad as Vietnam Era, New Poll

Shows, WASH. POST (Oct. 28, 2017)....................19

Josh Keefe,

Dark Money Gets Protection in

Congressional Spending Bill, Yet Again,

NEWSWEEK (Mar. 22, 2018) ................................17

Karl Evers-Hillstrom,

More Money, Less Transparency: A Decade

Under Citizens United, OpenSecrets.org

(Jan. 14, 2020).....................................................10

TABLE OF AUTHORITIES

(continued)

Page

Katy O’Donnell & Bernie Becker, House

Rebukes Freedom Caucus Effort to Oust

IRS Chief, POLITICO (Dec. 6, 2016).....................16

Lear Jiang,

Note, Disclosure’s Last Stand? The Need to

Clarify the “Informational Interest”

Advanced by Campaign Finance

Disclosure, 119 COLUM. L. REV. 487 (2019)........24

Mary Bottari,

Behind Janus: Documents Reveal DecadeLong Plot to Kill Public-Sector Unions, IN

THESE TIMES (Feb. 22, 2018) ..............................12

Matea Gold,

It’s Bold, But It’s Legal: How Campaigns

and their Super PAC Backers Work

Together, WASH. POST (July 6, 2015) ..................25

Matea Gold,

Koch-Backed Political Coalition, Designed

to Shield Donors, Raised $400 million in

2012, WASH. POST (Jan. 5, 2014) ........................22

Matt Ford,

How Far Will the Roberts Court Go to

Protect Shadowy Political Donors?, THE

NEW REPUBLIC (Jan. 10, 2020) .............................5

Michael Biesecker and Brian Slodysko,

Barrett Ads Tied to Interest Groups Funded

by Unnamed Donors, ASSOCIATED PRESS

(Oct. 26, 2020) .....................................................14

vii

TABLE OF AUTHORITIES

(continued)

Page

Political Nonprofits: Top Election Spenders,

OpenSecrets.org ..................................................11

Robert Maguire and Viveca Novak,

Shadow Money Magic: Five Easy Steps

That Let You Play Big in Politics, Keep

Your Donors Hidden and Game the IRS,

OpenSecrets.org (April 15, 2013) .......................22

Russ Choma,

Koch Industries, Business Groups Lobby

Against Donor Disclosure, OpenSecrets.org

(Apr. 25, 2013) .....................................................17

Scott Bland,

Ryan-linked Group Raised $24.6M From

an Anonymous Donor, POLITICO (May 18,

2018) ....................................................................10

Trevor Potter & B. B. Morgan,

The History of Undisclosed Spending in

U.S. Elections & How 2012 Became the

Dark Money Election, 27 NOTRE DAME J.L.

ETHICS & PUB. POL’Y 383 (2013) .........................20

Books

CHARLES DE SECONDAT, BARON DE

MONTESQUIEU,

THE SPIRIT OF LAWS (1748) ...................................8

DAVID HUME,

3 THE PHILOSOPHICAL WORKS OF DAVID

HUME (1st ed. 1826) ..............................................8

viii

TABLE OF AUTHORITIES

(continued)

Page

LAWRENCE LESSIG,

REPUBLIC, LOST: HOW MONEY CORRUPTS

CONGRESS-AND A PLAN TO STOP IT (2011) ...........20

LOUIS D. BRANDEIS,

WHAT PUBLICITY CAN DO (1914) .........................33

MARTIN GILENS,

AFFLUENCE AND INFLUENCE: ECONOMIC

INEQUALITY AND POLITICAL POWER IN

AMERICA (2012) ...................................................20

NICCOLO MACHIAVELLI,

THE PRINCE (1532) ................................................8

Other Authorities

2020 Election to Cost $14 Billion, Blowing

Away Spending Records, OpenSecrets.org

(Oct. 28, 2020) .....................................................11

75% in U.S. See Widespread Government

Corruption,

Gallup (Sept. 19, 2015) .......................................19

Andrew Jackson,

Veto Message Regarding the Bank of the

United States (July 10, 1832), in A

COMPILATION OF THE MESSAGES AND

PAPERS OF THE PRESIDENTS, (James D.

Richardson ed., Washington Gov’t Printing

Office 1896) ...........................................................7

Coalition Letter to President Trump and

Secretary Mnuchin (May 15, 2018) ....................18

TABLE OF AUTHORITIES

(continued)

Page

Covert Action: Interview with David Robarge,

LAWFARE (Mar. 17, 2021)....................................13

DonorsTrust and Donors Capital Fund Grant

Recipients (March 26, 2021) ...............................15

Equal Justice Initiative,

Lynching in America: Confronting the

Legacy of Racial Terror (3d Ed., 2017)...............27

FEC Advisory Opinion No. 2010-11

(Commonsense Ten), July 22, 2010 .....................9

High Percent of Presidential Ad Dollars of Top

Four 501(c)(4)s Backed Ads Containing

Deception, Annenberg Study Finds,

Annenberg Pub. Pol’y Ctr. (June 20, 2012) ..........16

History of Lynching,

NAACP, https://www.naacp.org/history-oflynchings/ (last visited March 25, 2021) ............27

James Madison,

Letter to W.T. Barry (Aug. 4, 1822) .....................3

Larry M. Bartels,

Economic Inequality and Political

Representation, Princeton Univ. Dep. of

Politics (2002, rev. Aug. 2005) ............................28

Letter from Senators to Department of

Treasury and IRS (Dec. 9, 2019) ........................16

Oversight Watch,

ISSUE ONE ............................................................25

TABLE OF AUTHORITIES

(continued)

Page

Press Release,

U.S. Dept. of Treasury (July 16, 2018) ..............18

Steven Kull et al.,

Americans Evaluate Campaign Finance

Reform: A Survey of Voters Nationwide,

Univ. Md. Program for Pub. Consultation

(May 2018) ..........................................................18

The Public, the Political System and American

Democracy, Pew Research Ctr. (Apr. 26,

2018) ....................................................................19

Theodore Roosevelt,

The New Nationalism, Speech at

Osawatomie, Kansas (Aug. 31, 1910),

reprinted in THEODORE ROOSEVELT, THE

NEW NATIONALISM (1910) .....................................7

Thomas Jefferson,

Letter to Charles Yancey (Jan. 6, 1816) ..............3

Tim Lau,

Citizens United Explained, Brennan

Center for Law and Justice (Dec. 12, 2019) .......10

U.S. Chamber of Commerce,

Multi-industry Letter Opposing H.R. 5175

(the “DISCLOSE Act,” or “Schumer – Van

Hollen”), (May 19, 2010) .....................................17

TABLE OF AUTHORITIES

(continued)

Page

U.S. Chamber of Commerce, Questions for the

Record for Mr. Durbin,

Reducing Emissions while Driving

Economic Growth: Industry-led Initiatives,

Hearing before the Subcomm. on Clean Air

and Nuclear Safety of the S. Comm. on

Environment and Public Works, 116th

Cong. (Oct. 17, 2019)...........................................32

U.S. Chamber of Commerce,

U.S. Chamber: DISCLOSE Act is Partisan

Effort to Silence Critics and Gain Political

Advantage (May 19, 2010) ..................................17

WHEN A STRANGER CALLS (Columbia Pictures

1979) ....................................................................23

STATEMENT OF INTEREST1

Amici Curiae are United States Senators

Sheldon Whitehouse of Rhode Island, Patrick Leahy

of Vermont, Ron Wyden of Oregon, Richard J.

Durbin of Illinois, Amy Klobuchar of Minnesota,

Jeffrey A. Merkley of Oregon, Christopher A. Coons

of Delaware, Richard Blumenthal of Connecticut,

Tammy Baldwin of Wisconsin, Mazie K. Hirono of

Hawaii, Elizabeth Warren of Massachusetts,

Edward J. Markey of Massachusetts, Cory A.

Booker of New Jersey, Chris Van Hollen of

Maryland, and Tammy Duckworth of Illinois. Amici

Senators’ careers in public service collectively

include decades of political engagement at the local,

state, and national level, spanning numerous

elections.

As officeholders and candidates, amici Senators

have had a front row seat to money’s corrupting

influence in our democratic process, and the

resulting erosion of public confidence in our

government. Amici Senators have watched this

situation dramatically worsen as effective campaign

finance oversight has collapsed. Political spending

by opaque entities with hidden funders has come to

dominate the public sphere, unchecked by the

scrutiny that transparency once provided.

1 No counsel for a party authored any part of this brief or made

a monetary contribution toward its preparation or submission.

Only the amici and their counsel have paid for its filing and

submission. Pursuant to Rule 37.3(a), all parties consented to

this brief’s filing. Petitioner’s blanket consent is filed with the

Court, and Respondent consented individually in writing.

Amici Senators submit this brief to (a)

highlight the deleterious effect that anonymous

spending — or “dark money” — has on our elections

and public discourse, and (b) explain how 501(c)

organizations have been used by powerful interests

to exert political influence under the cloak of

anonymity. Amici Senators caution that every

expansion of dark money’s reach — particularly the

broad expansion of dark money rights sought by

Petitioner and numerous amici here — will further

degrade our already troubled politics and public

discourse.

SUMMARY OF ARGUMENT

Petitioner frames this case as a stark contest

between the overweening power of the state and the

First Amendment right of ordinary citizens to freely

associate. But it is no less crucial that citizens enjoy

transparency into how the policies that shape their

lives come into being.

Citizenship confers responsibilities, including

voting to elect and remove public officials. To

discharge these responsibilities effectively, citizens

must possess basic information.

That basic

information includes knowing who is seeking to

influence their votes, and who is supporting or

opposing the candidates and policies at issue in our

elections. In short, citizens need to know who the

true players are on the political stage, so as to

identify motives, conflicts of interest, and possible

coordinated schemes to manipulate public opinion.

This “informational interest”2 of the public is an

essential component of a healthy democracy.

The core concern ostensibly at issue in this case

is California’s requirement that 501(c) organizations

disclose their largest financial donors to state tax

officials in order to operate legally in California.

Nonprofits fulfill this mandate by submitting

Schedule B of their Form 990, which they are

already required to prepare and submit to the

Internal Revenue Service (IRS). The State requires

no more information than the IRS has required in

the past and, like the IRS, keeps that information

confidential from the public. California has a clear

and substantial government interest — namely,

preventing fraud, self-dealing and criminal tax

evasion — for requiring this limited confidential

See Jennifer A. Heerwig & Katherine Shaw, Through a

Glass, Darkly: The Rhetoric and Reality of Campaign Finance

Disclosure, 102 GEO. L.J. 1443, 1465 (2014) (“Beginning in

Buckley, the Supreme Court has recognized an important

informational interest in disclosure. According to the Court,

the content of disclosure may aid the electorate by informing

an analysis of candidate positions that goes beyond explicit

party labels and campaign speeches.”); James Madison, Letter

W.T.

Barry

(Aug.

1822),

available

https://founders.archives.gov/documents/Madison/04-02-020480 (“[A] people who mean to be their own Governors, must

arm themselves with the power which knowledge gives.”);

Thomas Jefferson, Letter to Charles Yancey (Jan. 6, 1816),

available

https://founders.archives.gov/documents/Jefferson/03-09-020209 (“[T]he functionaries of every government have

propensities to command at will the liberty & property of their

constituents. There is no safe deposit for these but with the

people themselves; nor can they be safe with them without

information.”).

disclosure, just as other states have. So this would

seem to be a reasonably modest and straightforward

case.

The chorus of opposition says otherwise. Not

only has California’s mandate elicited a facial

constitutional challenge by Petitioner; it has drawn

rebuke from a veritable flotilla of industry-aligned

nonprofits and “think tanks” acting as amici curiae

— a number of whose funding sources overlap with

Petitioner’s and/or one another’s. It is among the

largest such assemblages ever presented to the

Court.3 Their number and their arguments suggest

a much bigger game is afoot.

Amici Senators submit that this appeal is just

the latest move in the steady and methodical

campaign pursued by powerful interests to both

cement and obscure their influence over the public

sphere since this Court’s decision in Citizens United

v. Fed. Elec. Comm'n.4 The effect of these efforts

has been to deprive the citizenry of information and

make our democracy less representative.

3 At the cert stage alone, more than 60 organizations with ties

to Petitioners filed amicus briefs in their support, with even

more joining in at the merits stage. In fact, the amicus

activity in this case greatly exceeds the activity in cases with

evidently massive national implications, including cases

involving the Affordable Care Act (King v. Burwell and NFIB

v. Sibelius), labor rights (Janus v. AFSCME), and the

Consumer Financial Protection Bureau (Seila Law v. CFPB).

This should give the Court pause that there may be more to

this case than meets the eye.

4 Citizens United v. Fed. Elec. Comm'n, 558 U.S. 310 (2010).

The trajectory over the last ten years has been

stark and unrelenting. Citizens United opened the

door to unlimited political spending by powerful

influencers. Rampant violation of that decision’s

transparency predicate has allowed such influencers

to wield that power anonymously, through darkmoney expenditures.

The next goal, as the

arguments by Petitioner and many amici make

plain, is for dark-money contributors to secure broad

constitutional protection of their anonymous

influence,5 so they can attack any and all disclosure

requirements in other contexts — a “moon shot” to

lock in dark money’s hold on our politics and policymaking, possibly forever.

The Court should decline the invitation. The

greatest beneficiaries of Citizens United were the

powerful interests who have the means and motive

to spend unlimited sums to influence our elections.

The theory undergirding that decision was that the

potentially overwhelming and even distorting effect

of such spending on our politics would be blunted by

voters’ ability to see who and what interests were

behind the explosion of messages designed to

influence them. But that hasn’t happened. Instead,

the undermining of Citizens United’s transparency

predicate has been deliberate and systematic,6

5 See Matt Ford, How Far Will the Roberts Court Go to Protect

Shadowy Political Donors?, THE NEW REPUBLIC (Jan. 10, 2020)

(“A coalition of conservative political organizations is asking

the Supreme Court to weaponize the First Amendment in the

service of dark money.”).

6 See Anna Massoglia, State of Money in Politics: Billion-Dollar

‘Dark Money’ Spending Is Just the Tip of the Iceberg,

OpenSecrets.org

(Feb.

21,

2019),

Footnote continued on next page

significantly hollowing the rationale for lifting

campaign finance limitations in the first place.

Amici Senators urge the Court to recognize the

long game that has brought our democracy to this

point, and which underlies the facial constitutional

challenge being made here. The Court should firmly

resist a broad ruling that can be used by Petitioner

and its ilk to tighten dark money’s hold over our

politics, policy, and public discourse. America faces

enough challenges without further eroding the

public’s confidence in government’s ability to

perform an essential function: to represent the

people fairly, regardless of their influence or net

worth.

Footnote continued from previous page

https://www.opensecrets.org/news/2019/02/somp3-billiondollar-dark-money-tip-of-the-iceberg/ (“Secret donor-funded

‘dark money’ spending reported to the Federal Election

Commission has officially exceeded $1 billion according to a

new analysis by the Center for Responsive Politics, and that

barely begins to scratch the surface of political spending by

groups that don’t fully disclose their donors.”).

ARGUMENT

THE BROAD HISTORICAL STRUGGLE

BETWEEN SPECIAL INTERESTS AND

THE PUBLIC INTEREST PROVIDES

THE NECESSARY CONTEXT FOR THIS

CASE.

Secrecy Strengthens the Power of

the Influencer Class.

Tension has always existed in our government

between an influencer class, which occupies itself

with aggregating power and favor-seeking from

those in elected office, and the general population,

which merely wants a government that will not too

readily yield to the influencers.7 This tension — an

7 See, e.g., Theodore Roosevelt, The New Nationalism, Speech

at Osawatomie, Kansas (Aug. 31, 1910), reprinted in

THEODORE ROOSEVELT, 3 THE NEW NATIONALISM 17 (1910)

(“The absence of effective State, and especially, national,

restraint upon unfair money-getting has tended to create a

small class of enormously wealthy and economically powerful

men, whose chief object is to hold and increase their power.”);

Andrew Jackson, Veto Message Regarding the Bank of the

United States (July 10, 1832), in A COMPILATION OF THE

MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, at 576,

590 (James D. Richardson ed., Washington Gov’t Printing

Office 1896) (“It is to be regretted that the rich and powerful

too often bend the acts of government to their selfish purposes

. . . to make the rich richer and the potent more powerful, the

humble members of society . . . have neither the time nor the

means of securing like favors to themselves, have a right to

complain of the injustice of their government.”); James

Madison, Federalist No. 62 (Feb. 27, 1788) (observing the

“unreasonable advantage” of the “sagacious, the enterprising,

and the moneyed few over the industrious and uniformed mass

Footnote continued on next page

elemental political fact — has been observed in

societies everywhere, for centuries.8

The Court has on occasion recognized this

tension, and the threat that unchecked influence by

secretive powers can pose to the polity. “Influences

secretly urged under false and covert pretences

must necessarily operate deleteriously,” subjecting

“government[] to the combined capital of wealthy

corporations,

and

produc[ing]

universal

corruption[.]”9 See also McCutcheon v. Fed. Elec.

Comm’n, 572 U.S. 185, 237 (2014) (Breyer, J.,

dissenting) (“Where enough money calls the tune,

the general public will not be heard”).

Footnote continued from previous page

of the people” to enjoy “a harvest, reared not by themselves,

but by the toils and cares of the great body of their fellowcitizens.”).

See DAVID HUME, 3 THE PHILOSOPHICAL WORKS OF DAVID

HUME 298-99 (1st ed. 1826) (“[w]here the riches are in few

hands, these must enjoy all the power and will readily conspire

to lay the whole burden on the poor, and oppress them still

farther, to the discouragement of all industry.”); NICCOLO

MACHIAVELLI, THE PRINCE, ch. IX, 62 (1532) (“[O]ne cannot by

fair dealing, and without injury to others, satisfy the nobles,

but you can satisfy the people, for their object is more

righteous than that of the nobles, the latter wishing to oppress,

whilst the former only desire not to be oppressed.”); CHARLES

DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF LAWS,

Book V, 63 (1748) (“To men of overgrown estates, everything

which does not contribute to advance their power and honour

is considered by them as an injury.”).

Marshall v. Baltimore & Ohio R.R. Co., 57 U.S. 314, 335

(1853), overruled by statute on other grounds, 72 Stat. 415

(codified at 28 U.S.C. § 1332(c)).

Citizens United10 removed limitations that had

existed, in one form or another, for more than a

century on spending by powerful political

interests.11 The Court stood its decision on two

predicates: independence and transparency. The

Court reasoned that “independent” expenditures,

while creating “ingratiation and access” for the

largest spenders, would nevertheless not lead to

“undue influence” or corruption absent an explicit

quid pro quo.12 The Court also reasoned that

transparency would safeguard political integrity,

notwithstanding the unfettered spending that was

to ensue: “With the advent of the Internet,” the

Court stated, “prompt disclosure of expenditures can

provide shareholders and citizens with the

information needed to hold corporations and elected

officials accountable.”13

Citizens United triggered a general collapse of

limits both on outside spending and on contributions

to groups that engage in such spending.14 The

10 Citizens United, 558 U.S. at 320; see also 2 U.S.C. § 441(b)

(2000).

Citizens United, 558 U.S. at 432-33 (2010) (Stevens, J.,

dissenting) (“At the federal level, the express distinction

between corporate and individual political spending on

elections stretches back to 1907, when Congress passed the

Tillman Act, ch. 420, 34 Stat. 864, banning all corporate

contributions to candidates.”).

12 Id. at 360.

13 Id. at 370.

14 See SpeechNow.org v. Fed. Elec. Comm'n, 599 F.3d 686, 689

(D.C. Cir. 2010) (en banc); FEC Advisory Opinion No. 2010-11

(Commonsense Ten), July 22, 2010,

available at

http://saos.fec.gov/aodocs/AO%202010-11.pdf (recognizing that

Footnote continued on next page

result was an explosion in political spending by

deep-pocketed interests. Non-party independent

groups spent $4.5 billion on elections between 2010

and 2020, after having spent just $750 million

during the two decades prior.15

The spending has also been remarkably

concentrated. The ten most generous donors and

their spouses injected $1.2 billion into federal

elections over the last decade — enough to dwarf the

contributions made by millions of ordinary

citizens.16 In one instance, a 50l(c)(4) organization

— the American Action Network — raised $41.9

million in one year, $24.6 million of which came

from a single anonymous donor.17 In 2014, the top

100 donors to super PACs18 spent almost as much as

Footnote continued from previous page

political committees that do not make direct contributions to

candidates can raise unlimited funds).

Karl Evers-Hillstrom, More Money, Less Transparency: A

Decade Under Citizens United, OpenSecrets.org (Jan. 14,

2020),

https://www.opensecrets.org/news/reports/a-decadeunder-citizens-united.

16 Id.

Scott Bland, Ryan-linked Group Raised $24.6M From an

Anonymous Donor, POLITICO (May 18, 2018).

Super PACs are powerful dark-money weapons that came

into being after Citizens United. While they nominally must

disclose their donors, that requirement is met by disclosing

only the screening entity through which the true donor

channeled the money, not the true donor itself. See Tim Lau,

Citizens United Explained, Brennan Center for Law and

Justice (Dec. 12, 2019), https://www.brennancenter.org/ourwork/research-reports/citizens-united-explained.

all 4.75 million small donors (i.e., those giving $200

or less) combined.19

Doubly worrying is that, notwithstanding

Citizens United’s faith in transparency, much of this

spending is cloaked in secrecy.

The largest

percentage increase in campaign expenditures has

come from organizations that do not disclose their

donors, such as 501(c) organizations. Such groups

spent nearly $1 billion on elections during the last

ten years, more than seven times what they spent

during the preceding decade.20 In 2016 alone,

ninety-five 501(c)(4) and 501(c)(6) trade associations

made independent expenditures of $50,000 or more,

totaling more than $185 million.21 The 10 largest

19 See Daniel I. Wiener, Citizens United Five Years Later,

Brennan Center for Justice at New York University School of

Law, at 5 (2015), available at

https://www.brennancenter.org/sites/default/files/201908/Report_Citizens_United_%205_%20Years_%20Later.pdf.

See Evers-Hillstrom, supra note 15. These figures do not

take into account money that 501(c)(4) organizations and other

non-transparent groups themselves contribute to super PACs,

which need not disclose the original source of the funding.

According to one analysis, only 30% of all outside spending in

the 2020 election was fully disclosed, an all-time low. See 2020

Election to Cost $14 Billion, Blowing Away Spending Records,

OpenSecrets.org

(Oct.

28,

2020),

https://www.opensecrets.org/news/2020/10/cost-of-2020election-14billion-update/.

Political

Nonprofits:

Top

Election

Spenders,

OpenSecrets.org, https://www.opensecrets.org/outsidespending

/nonprof_elec.php?cycle=2016.

were responsible for 77% of this total, and the top

three were responsible for nearly half.22

These numbers do not capture vast additional

sums of money anonymously contributed to and

spent by 501(c) groups on advocacy that is closely

adjacent to and often linked with the donors’

express political advocacy. This includes “issue ads”

(often just thinly-veiled political attack ads),

lobbying expenditures, research and public relations

efforts, retreats in exotic locations to “educate”

policymakers, and impact litigation and amicus

briefs that have become a burgeoning legal

industry.23 None of this is subject to Federal

Election Commission (FEC) disclosure.

Indeed, the same dark money that flows into a

501(c)(4) “social welfare” organization for campaign

ads frequently funds a sister 501(c)(3) organization.

Through industry-funded research papers, legal and

academic conferences, “alternative” science, and

public relations messaging, dark-money 501(c)(3)s

can provide a veneer of scholarship and highmindedness to the bluntly pecuniary self-interest of

the special interests behind them, forming an

essential part of a sophisticated, coordinated

political influence operation.24

22 Id.

See, e.g., Mary Bottari, Behind Janus: Documents Reveal

Decade-Long Plot to Kill Public-Sector Unions, IN THESE TIMES

(Feb. 22, 2018).

24 Id.

Dark-money influence operations, not unlike

covert operations in the intelligence world, are

multi-faceted activities.25 The facet of the scheme

that spends directly on political campaigns is just

part of it. A 501(c)(4) can be little more than a mail

drop, existing as a mere formality,26 with the

25 In a recent podcast, David Robarge, the chief historian

at the Central Intelligence Agency, defined what “covert

action” means in the intelligence context. With minimal

word changes, Robarge could just as well have described

dark-money operations in the United States:

“[Covert] action is secret only in the sense that

the U.S. hand is hidden, but because it’s

action, you are supposed to, if the program is

working properly, cause change that is

detectable. You want to influence activities in

a foreign target, whether it’s helping a

political party, supporting an insurgency,

assisting a government in suppressing an

insurgency, sending propaganda or as we call

it covert influence messages into that country.

The whole point of that range of activity is to

make things different in that target in that

target than they were before. And you want

people to notice that influence. You want a

political party to be more active. You want

that insurgency to be more aggressive . . . And

that’s what we mean by influence. But whose

doing the influence is the secret, or in our

definition, more precise(ly) ‘covert’ part of

covert action.”

See, Covert Action: Interview with David Robarge, LAWFARE,

at 10:00 (Mar. 17, 2021),

https://www.lawfareblog.com/lawfare-podcast-covert-action.

26 See, e.g., Anna Massoglia, Tax Returns Reveal One SixFigure Donor Accounts For Entirety of “Dark Money” Funding

Whitaker’s Nonprofit, OpenSecrets.org (Nov. 21, 2018),

https://www.opensecrets.org/news/2018/11/one-donor-accountsFootnote continued on next page

associated 501(c)(3) providing the communications

and operational heft for the overall political effort.

In these operations, the funding constituting the

bulk of the proverbial iceberg lies beneath the

surface,27 while even the visible tip is masked.

The result is that our democracy suffers. With

anonymity, conflicts of interest are hidden,

confusing citizens and undermining the public’s

ability to evaluate motive, messenger and

message.28 With anonymity, coordination between

ostensibly distinct entities is obscured, tricking

citizens into believing that “consensus” support

exists for what are, in fact, relatively narrow special

interests.29 With anonymity, powerful organizations

Footnote continued from previous page

for-all-dark-money-funding-whitakers-nonprofit/

(describing

multiple connected dark-money groups sharing a single

mailing address at a UPS store); Michael Biesecker and Brian

Slodysko, Barrett Ads Tied to Interest Groups Funded by

Unnamed Donors, ASSOCIATED PRESS (Oct. 26, 2020)

(identifying the mailing address of another dark-money

501(c)(4) group as “a UPS store in Washington’s Georgetown

neighborhood”).

27 See, e.g., Massoglia, supra note 6 (“The vast majority of ads

airing under the guise of issue advocacy fall outside of the

FEC’s reporting requirements — meaning the actual amount

of dark money spending in 2018 elections was likely much

higher.”).

28 See Heerwig & Shaw, supra note 2, at 1472-74.

Indeed, a number of the amici supporting Petitioner

(including the Pacific Legal Foundation, the Center for

Constitutional Jurisprudence (Claremont Institute), the

Southeastern Legal Foundation, the Cato Institute, and the

Buckeye Institute, to name just a few) are repeat players on

the issue of protecting and expanding dark-money influence in

our politics, having appeared previously in cases such as Seila

Footnote continued on next page

can support policies harmful to citizens who are

their shareholders, members, employees, business

partners or customers, thus dodging accountability;

and even put shareholder funds covertly to uses that

shareholders would not support.30

Citizens United also ignored the fact (obvious to

those who run for office) that the mere threat of

anonymous, unlimited political spending is itself a

potent form of influence. This form of leverage can

be deployed unseen, increasing the danger of

corruption exponentially. While a candidate may

dare a special interest to smear him or her publicly,

trusting citizens to understand the motive of the

attacker, the threat of an attack from one or more

anodyne-sounding front groups completely tilts the

playing field — these groups know they can proceed

with substantial impunity, free to make false claims

and smears, with little or no public accountability

Footnote continued from previous page

Law LLC v. CFPB, and share major funding sources, such as

Donors Trust (funded in part by the Koch Family), with

Petitioner and one another. See DonorsTrust and Donors

Capital Fund Grant Recipients (March 26, 2021),

https://www.sourcewatch.org/index.php?title=DonorsTrust_an

d_Donors_Capital_Fund_Grant_Recipients.

The Rule 37.6

certifications by these and other dark-money amici obscure

rather than reveal the full interrelation and commonality

among them.

When for-profit companies “choose to ‘speak’ through

political advocacy, that speech typically reflects not the views

and priorities of the shareholders, but those of high-level

corporate managers.” Wiener, supra note 19, at 10 (citing

John C. Coates IV, Corporate Politics, Governance, and Value

Before and After Citizens United, 9 J. OF EMPIRICAL LEGAL

STUD. 657, 667 (2012)).

because the true proponent is hidden.31 When such

threats succeed, dark-money interests win without

actually having to spend anything, leaving no

fingerprints.

All of this makes anonymity potently attractive

to big-money interests — and explains their

ceaseless efforts to secure more of it. In recent

years, as the political use of 501(c) organizations

exploded, the IRS Commissioner endured a

merciless political battering from dark-money

spenders and their allies in Congress, effectively

suppressing enforcement of IRS disclosure rules

from that point onwards — even after the

accusations of political “bias” on the part of the IRS

were revealed to be a sham.32 Dark-money interests

were able to secure “riders” to must-pass

31 See, e.g., High Percent of Presidential Ad Dollars of Top Four

501(c)(4)s Backed Ads Containing Deception, Annenberg Study

Finds, Annenberg Pub. Pol’y Ctr. (June 20, 2012),

https://www.annenbergpublicpolicycenter.org/high-percent-ofpresidential-ad-dollars-of-top-four-501c4s-backed-ads-containingdeception-annenberg-study-finds/ (“[F]rom December 1, 2011

through June 1, 2012, 85% of the dollars spent on presidential

ads by four top-spending third party groups . . . were spent on

ads containing at least one claim ruled deceptive by factcheckers . . . .”).

See Letter from Senators to Department of Treasury and

IRS (Dec. 9, 2019) at 5 (citing Treasury Inspector Gen. For Tax

Admin., Review of Selected Criteria Used to Identity TaxExempt Applications for Review (Sept. 28, 2017) available at

https://www.treasury.gov/tigta/auditreports/2017reports/20171

0054fr.pdf); see also, e.g., Katy O’Donnell & Bernie Becker,

House Rebukes Freedom Caucus Effort to Oust IRS Chief,

POLITICO (Dec. 6, 2016) (detailing Congressional efforts to

impeach the IRS commissioner).

Congressional appropriations rules preventing the

IRS from strengthening 501(c)(4) regulations.33

Dark-money interests also defeated proposed SEC

rules requiring public companies and trade groups

to disclose their political activity, and defeated

passage of the Democracy Is Strengthened by

Casting Light On Spending in Elections

(DISCLOSE) Act, which would have (consistent with

Citizens United) expanded and accelerated electionspending disclosures.34

And recently, after a

concerted lobbying effort by Petitioner’s sister501(c)(4) organization Americans for Prosperity and

its dark-money cohorts,35 the IRS eliminated the

See, Josh Keefe, Dark Money Gets Protection in

Congressional Spending Bill, Yet Again, NEWSWEEK (Mar. 22,

2018).

34 The connection of the Koch-backed political operation to the

so-called “donor privacy” movement was demonstrated recently

in reporting highlighting the Koch network’s opposition to the

For the People Act (S.1). See Jane Mayer, Inside the KochBacked Effort to Block the Largest Election-Reform Bill in Half

a Century, THE NEW YORKER (Mar. 29, 2021); see also Russ

Choma, Koch Industries, Business Groups Lobby Against Donor

Disclosure,

OpenSecrets.org

(Apr.

25,

2013),

https://www.opensecrets.org/news/2013/04/koch-industriesand-business-groups/; U.S. Chamber of Commerce, U.S.

Chamber: DISCLOSE Act is Partisan Effort to Silence Critics

and

Gain

Political

Advantage

(May

19,

2010),

https://www.uschamber.com/press-release/us-chamber-discloseact-partisan-effort-silence-critics-and-gain-political-advantage;

U.S. Chamber of Commerce, Multi-industry Letter Opposing H.R.

5175 (the “DISCLOSE Act,” or “Schumer – Van Hollen”), (May

19, 2010), https://www.uschamber.com/letter/multi-industryletter-opposing-hr-5175-disclose-act-or-schumer-van-hollen.

See Coalition Letter to President Trump and Secretary

Mnuchin

(May

15,

2018),

available

https://sbecouncil.org/wp-content/uploads/2018/07/CFIFFootnote continued on next page

confidential donor reporting

501(c)(4) organizations.36

requirement

for

This case accordingly is just one episode in a

long and systematic campaign by big-money

interests to secure secret influence in our politics.

On the losing end stand Americans of all political

stripes, who see the increase in secret money in our

elections as an indicator that our government is

corrupted and unrepresentative.37

88% of

Americans think it is important to reduce the

influence of big donors on the federal government.38

84% of Americans think money has too much

influence in politics.39 75% of U.S. adults perceive

corruption as “widespread” in the country’s

Footnote continued from previous page

Coalition-Letter-to-WH-and-Treasury-Schedule-B-FINAL5.2018.pdf.

36 See Press Release, U.S.

Dept. of Treasury (July 16, 2018),

https://home.treasury.gov/news/press-releases/sm426.

37 See Abby K. Wood, Citizens United Turns 10 Today: Here’s

What We’ve Learned About Dark Money, WASH. POST (Jan. 21,

2020) (survey shows that “both Republicans and Democrats

were more likely to vote for candidates that discourage dark

money than those [who] accepted it.”).

38 Steven Kull et al.,

Americans Evaluate Campaign Finance

Reform: A Survey of Voters Nationwide, Univ. Md. Program for

Pub. Consultation, at 4 (May 2018), available at

https://www.publicconsultation.org/wpcontent/uploads/2018/05/Campaign_Finance_Report.pdf.

39 Americans’ Views on Money in Politics, N.Y. TIMES & CBS

NEWS (June 2, 2015) (reporting that 75% of Americans believe

that outside groups should be required to publicly disclose

contributors); see also Wiener, supra note 19, at 2 (“An

astounding 80 percent [of Americans] disapproved of Citizens

United.”).

government.40 72% think that ours is a country

where people who give a lot of money to elected

officials have more influence.41 65% of Americans

named money in politics as having “a lot” of blame

for the dysfunction of our political system.42 In fact,

this was the most common response when asked

what is “causing dysfunction in the U.S. political

system.”43 The second most frequent answer, at

56%, was “wealthy political donors.”44

These responses reflect the justifiable sense

across the electorate that our democracy serves the

interests of the wealthiest, and that “democratic

participation for the vast majority of citizens is of

relatively little value.”45

Big special interests

wielding

unlimited

influence

from

behind

anonymizing front groups are helping drive this loss

of confidence in our system of government. While it

is a satisfactory system for them, it fails the general

public — and ultimately weakens our democracy.46

40 75% in U.S. See Widespread Government Corruption, Gallup

(Sept. 19, 2015), https://news.gallup.com/poll/185759/wides

pread-government-corruption.aspx.

41 The Public, the Political System and American Democracy,

Pew Research Ctr., at 26 (Apr. 26, 2018), available at

https://www.people-press.org/wp-content/uploads/sites/4/2018/

04/4-26-2018-Democracy-release-1.pdf.

42 John Wagner & Scott Clement, ‘It’s Just Messed Up’: Most

Think Political Divisions as Bad as Vietnam Era, New Poll

Shows, WASH. POST (Oct. 28, 2017).

43 Id.

44 Id.

45 Wiener, supra note 19, at 1.

46 See MARTIN GILENS, AFFLUENCE AND INFLUENCE:

ECONOMIC

Footnote continued on next page

Today’s Influencers Hide Behind

Nonprofit Entities to Spread

Political Influence in Secret.

The vision that the Court presented in Citizens

United — of a public discerning in real time the

identities of the individuals or industries

influencing our politics — has not come to pass.47

Instead, dark-money interests have weaponized taxexempt 501(c) organizations, turning them into

opaque “influence shelters” to magnify extreme

wealth’s impact on our public discourse while

shielding the players from public attention.48 An

entire infrastructure of deception has emerged,

comprised of shell entities, 501(c)s, donor-advised

trusts, and super PACs.

To protect that

infrastructure, dark-money interests have fought

tooth and nail (as in the instant case) to roll back

Footnote continued from previous page

INEQUALITY AND POLITICAL POWER IN AMERICA (2012)

(explaining that the country’s policymakers respond almost

exclusively to the preferences of the economically advantaged);

LAWRENCE LESSIG, REPUBLIC, LOST: HOW MONEY CORRUPTS

CONGRESS-AND A PLAN TO STOP IT, 143-47 (2011) (noting that

dependency on donors causes Congress to spend more time on

issues that matter to their funders than to the general public).

47 Citizens United, 558 U.S. at 370 (“effective disclosure” will

“provide shareholders and citizens with the information

needed to hold corporations and elected officials accountable

for their positions and supporters.”).

See, e.g., Trevor Potter & B. B. Morgan, The History of

Undisclosed Spending in U.S. Elections & How 2012 Became

the Dark Money Election, 27 NOTRE DAME J.L. ETHICS & PUB.

POL’Y 383, 463-64 (2013) (discussing the formation of

Crossroads GPS, a 501(c)(4) spin-off of super PAC American

Crossroads, formed to protect donors from disclosure).

even the most modest incursions against the secrecy

enhancing their power.

The explosion in use of 501(c)s for political

purposes began shortly after Citizens United made

anonymity in political giving so salient and

advantageous. It is not worth much to shroud a

$5,000 political donation in anonymity. Change this

to a $50 million expenditure, however, and

anonymity

becomes

strategically

far

important; the power of the investment is

maximized when the identity and motives behind it

are shielded from view and criticism.

Section 501(c)(4) of the Internal Revenue Code

establishes tax-exempt status for nonprofits

“operated exclusively for the promotion of social

welfare,”49 which according to the IRS’s own

regulations “does not include direct or indirect

participation or intervention in political campaigns

on behalf of or in opposition to any candidate for

public office.”50

That seems clear enough, yet

Treasury regulations allow 501(c)(4) organizations

to engage in political campaign activity so long as

the “primary” activity of the organization is social

welfare.51 Dark-money spenders have interpreted

the word “primary” to mean that anonymouslyfunded 501(c)(4)s may devote the barest majority of

their activities to “social welfare,” with the

remaining 49.999% devoted to express political

campaign activities. In this way, big donors can

49 26 U.S.C. § 501(c)(4)-1(a)(1)(ii).

50 Treas. Reg. § 1.501(c)(4)-1(a)(2)(ii) (emphasis added).

51 Treas. Reg. § 1.501(c)(4)-1(a)(2)(i).

effectively pay a 50.001% “secrecy surcharge” to get

their 49.999% in express political spending

anonymized.

It doesn’t end there, however. Dark moneycontrolled 501(c)(4)s are able to send their 50.001%

in “social welfare” funds downstream to other

politically-aligned 501(c)(4)s, who then can spend up

to half of those funds on direct campaign influence

and “donate” the remainder further downstream to

yet other groups within the dark-money network.52

In this manner, dark-money donors can create a

cascade of downstream entities, effectively spending

far more than 50% of their secret political funding

on express campaign influence, all free from

disclosure and subject to tax benefits.53

Thus

influencers maximize their impact on our politics

while minimizing their visible footprint.54

See Robert Maguire and Viveca Novak, Shadow Money

Magic: Five Easy Steps That Let You Play Big in Politics, Keep

Your Donors Hidden and Game the IRS, OpenSecrets.org

(April

15,

2013),

https://www.opensecrets.org/news/2013/04/shadow-moneymagic-five-easy-steps.html.

See, e.g., Matea Gold, Koch-Backed Political Coalition,

Designed to Shield Donors, Raised $400 million in 2012,

WASH. POST (Jan. 5, 2014) (Describing the Koch-backed

coalition: “Tracing the flow of the money is particularly

challenging because many of the advocacy groups swapped

funds back and forth. The tactic not only provides multiple

layers of protection for the original donors but also allows the

groups to claim they are spending the money on ‘social welfare’

activities to qualify for 501(c)(4) tax-exempt status.”).

On rare occasions, the veil is lifted — as when California

uncovered an illicit campaign donation routing scheme,

Footnote continued on next page

501(c)(3) organizations and think tanks paid

for with the same dark money that funds 501(c)(4)

organizations also play an important role in

spreading dark-money’s influence. This case itself

provides an illustration.

The scores of amici

appearing in support of Petitioner both here and at

the certiorari stage would seem to suggest a broad

consensus. However, a number of them represent a

small group of very large special interests and

donors, including the Koch family itself, Petitioner’s

principal support.55

The calls for absolute

protection of dark money from disclosure are, as in

the horror film, “coming from inside the house.”56

II.

THE GOVERNMENT HAS A STRONG

INTEREST IN REGULATING

NONPROFITS, AND DISCLOSURE IS

AN IMPORTANT TOOL.

The Circumstances of This Case

Plainly Set It Apart from CivilRights Era Decisions Protecting

the Freedom to Associate.

Dark-money interests frequently cite, as do

many of Petitioner’s amici here, our polarized

political climate as the basis for their need for

Footnote continued from previous page

designed to evade state regulators, involving the Koch

network. See Chris Megerian and Anthony York, California

Probe of Campaign Donations Sheds Light on ‘Dark Money’,

L.A. TIMES (Nov. 3, 2013).

55 See supra note 29.

56 WHEN A STRANGER CALLS (Columbia Pictures 1979).

anonymity.57 But the simple truth is that dark

money has played an enormous role in creating the

poisonous climate that its practitioners and allies

tout as justification for making our politics even less

transparent.

Accountability in politics is not a danger; it is a

virtue, with real social value. Accountability creates

and enhances speech rather than suppressing it,

because it generates debate, discussion, and, yes,

criticism — all expected features of a robust

functioning democracy — about the incentives and

agendas, the motives and conflicts of interest, and

the true identities behind the policy-influencing

messages paid for by private interests.58

Anonymity, on the other hand, opens the door

to anti-social behavior.59 Political advertisements

reflect this phenomenon. Advertisements funded

with dark money are consistently more negative and

57 See, e.g., Br. of the American Center for Law and Justice as

Amici Curiae in Support of Petitioners (Mar 1, 2021), at 9

(“Toxic polarization and the mushrooming of ‘cancel culture’

has catapulted the value of political anonymity to its apex.”).

58 See Lear Jiang, Note, Disclosure’s Last Stand? The Need to

Clarify the “Informational Interest” Advanced by Campaign

Finance Disclosure, 119 COLUM. L. REV. 487, 523 (2019)

(arguing that disclosure of dark money sources may “facilitate

greater discourse around which private actors are attempting

to influence policy.”).

Daniel E. Chand, “Dark Money” and “Dirty Politics”: Are

Anonymous Ads More Negative?, 19 BUS. AND POL. 454, 454-57

(2017) (“Outside of politics, it is well established that the

potential for negative attacks is increased when one’s identity

is concealed.”).

false than those sponsored by identifiable sources.60

Candidates are often complicit, because they benefit

when attacks on their opponents are launched by

outside groups.61

They enjoy the competitive

benefits from the negative attacks, while avoiding

public disapprobation for “slinging mud.” As illusive

as the transparency predicate of Citizens United

was, so was its independence predicate.62 The

resulting situation is thus the worst of all worlds for

an informed democracy:

candidate, campaign,

funder and front group can work in harmony, while

the public is left completely in the dark.

Even so, citizens sense something is wrong,

justifiably believing that their voices are swamped

by big money interests. The “tsunami of slime”63

injected by dark money into the public discourse

poisons the public mood, erodes confidence in our

government, and prompts civic disengagement

(including reduced small-donor participation).64

60 Id. at 464 (data shows that “dark money is a clear predictor

of negative advertising.”).

61 Id. at 456.

62 In fact, coordination between campaigns, dark money groups

and super PACs is so rampant, Issue One, a bipartisan

campaign finance watchdog group, has an ongoing oversight

project dedicated to documenting coordination. See, Oversight

Watch, ISSUE ONE, https://www.coordinationwatch.org/; see

also, Matea Gold, It’s Bold, But It’s Legal: How Campaigns

and their Super PAC Backers Work Together, WASH. POST

(July 6, 2015) (detailing various ways candidates and super

PACs coordinate election spending and campaign activity).

63 Joe Hagan, The Coming Tsunami of Slime, N.Y. MAG. (Jan

22, 2012).

See, e.g., Wiener, supra note 19, at 5 (noting declines in

Footnote continued on next page

This disengagement, sadly, widens the chasm for

dark money to fill: a corrosive feedback loop. The

sense that democracy is out of the public’s control

creates frustration, spurs anger and resentment,

and drives polarization in the electorate — which

dark-money spenders can then tout in support of

even deeper anonymity.65

Footnote continued from previous page

individual reported contributions to candidates and parties

within the legal limits, as well as the total contributions by

small donors (giving $200 or less)).

It bears noting that this polarization is not symmetric,

however, as illustrated by the ideological slant and tactics

employed by most dark-money expenditures.

“As an

increasing body of political science and historical scholarship

has documented, the Republican Party has grown

substantially more conservative than Democrats have grown

liberal. Conservative ideological extremism is present in both

the substance of the issues that right-leaning politicians

prioritize, as well as the tactics with which they pursue those

policy goals.”

Alexander Hertel-Fernandez, Asymmetric

Partisan Polarization, Labor Policy, and Cross-State Political

Power-Building, 685 ANNALS OF THE AMERICAN ACADEMY OF

POLITICAL & SOCIAL SCIENCE 64, 64-79 (September 2019),

available

https://journals.sagepub.com/doi/pdf/10.1177/

0002716219862524 (citation omitted); see also Chand, supra

note 59, at 455 (concluding that “[c]onservative groups were

far more likely to purchase negative ads with dark money than

with expenditures where donor information was disclosed,”

attributable in part to the particular desire for secrecy by

corporate spenders); Jeff John Roberts, 5 Surprising

Consequences from a Decade of Citizens United, FORTUNE (Jan.

23, 2020) (“[C]onservative groups, including Karl Rove’s

Crossroads GPS and the National Rifle Association, have been

the most active in deploying dark money tactics”); Massoglia,

supra note 6 (“In total, conservative groups that do not fully

disclose their donors outspent liberal groups by hundreds of

millions of dollars during the 2018 election cycle.”).

The facts of the case before the Court, and the

context in which it arises, are grotesquely different

from the Civil Rights Era precedent behind which

Petitioner and its dark-money amici seek shelter.

In NAACP v. Alabama, the disclosure mandated by

the State was far more sweeping, capturing all

members of the organization for their mere act of

membership.66

NAACP members in the Jim Crow South also

faced real and immediate threats of physical

violence, including state-sponsored violence. The

NAACP estimates that there were over 4,700

lynchings in the United States between 1882 and

1968.67 A comprehensive study from the Alabama

Museum on Peace and Violence documented nearly

4,100 racial terror lynchings in 12 Southern states,

including nearly 400 in Alabama alone.68 It showed

that local officials and law enforcement largely

tolerated racial lynchings, beatings, burnings and

bombings.

The threat of lynching and racial

violence was severe enough to prompt the “Great

66 See NAACP v. Alabama,

357 U.S. 449, 453 (1958) (“The

State moved for the production of a large number of the

Association’s records and papers, including bank statements,

leases, deeds, and records containing the names and addresses

of all Alabama ‘members’ and ‘agents’ of the Association.”).

67 History of Lynching, NAACP, https://www.naacp.org/history-

of-lynchings/ (last visited March 25, 2021).

See Equal Justice Initiative, Lynching in America:

Confronting the Legacy of Racial Terror (3d Ed., 2017),

https://lynchinginamerica.eji.org/report/.

Migration” of thousands of African Americans out of

the South.69

There is simply no comparison between the

violent oppression faced by individual members of

groups supporting racial justice in the South in the

Jim Crow 1950s and the lofty power enjoyed by the

country’s secretive donor elite today.70 Alabama

NAACP members were among the least powerful

citizens among us, fighting for the most basic of all

American rights: the right to safely cast their votes.

Contrast this with billionaires, massive trade

associations and giant corporations seeking

maximal constitutional shelter from public criticism

for their quintessentially public acts of influencing

public debate and public policy. The balance of

interests here is not remotely comparable to that in

NAACP.

It is, indeed, a crass and cynical

69 Id.

70 The Koch family, Petitioner’s principal benefactor, owns the

largest private company in the United States and has made

billions in the fossil fuel industry. See America’s Largest

Private

Companies,

FORBES

(2020),

https://www.forbes.com/largest-private-companies/list/

(last

accessed March 25, 2021); see generally Larry M. Bartels,

Economic Inequality and Political Representation, Princeton

Univ. Dep. of Politics (2002, rev. Aug. 2005), available at

http://princeton.edu/~piirs/events/PU%20comparative%

20Conf%20May%202007/20Gilnes.pdf (“In almost every

instance, senators appear to be considerably more responsive

to the opinions of affluent constituents than to the opinions of

middle-class constituents, while the opinions of constituents in

the bottom third of the income distribution have no apparent

statistical effect on their senators’ roll call votes.”).

comparison71 to make — particularly at a moment

when dark money is fueling efforts to suppress voter

participation across the South and elsewhere in the

country.72

As for the criticism and personal risk that may

come with taking a stand on issues of public

importance, amici Senators have all received

threats to their safety. It comes with the job. The

fear and resentment fomented by dark-money

politics have, in fact, often been responsible. Most

recently, dark money helped sponsor a rally that

prompted a violent insurrection at our Capitol.73 As

71 See, e.g., Br. of the American Center for Law and Justice,

supra note 57, at 9 (“The threat to First Amendment

associational rights from compelled disclosure equals the

threat experienced by NAACP members in the civil rights

era.”) and 30 (“During the reconstruction era, Blacks and

Republicans were targets. . . . Today it is conservatives.”); see

also Br. of the Cato Institute, et al. as Amici Curiae in Support

of Petitioners (Mar 1, 2021), at 24 (“[F]ew would blame donors

who felt as though the compelled disclosures were ‘of the same

order’ as a requirement that they wear ‘identifying arm-bands,’

exposing them to threats, harassment, and boycotts.”). And to

the extent the argument is “we won’t be able to keep up our

lies and smears once people know who’s behind the lying and

smearing,” it is beneath rebuttal.

72 Brian Schwartz, Dark-Money GOP Fund Funneled Millions

of Dollars to Groups that Pushed Voter Fraud Claims, CNBC

(Jan. 13, 2021), https://www.cnbc.com/2021/01/13/dark-moneygop-fund-funneled-millions-groups-that-pushed-voter-fraudclaims.html; Franziska Barczyk, Revealed: Conservative Group

Fighting to Restrict Voting Tied to Powerful Dark Money

Network, THE GUARDIAN (May 27, 2020) (discussing Koch

family funding of voting restriction efforts); see also Mayer,

supra note 34.

73 Brian Schwartz, Pro-Trump Dark Money Groups Organized

Footnote continued on next page

extreme as that episode was, amici Senators

continue to place trust in law enforcement to

effectively address whatever threats politicallyactive individuals may face as a result of their

public stances.74 If it is good enough for politicians

who are far more visible and vulnerable, it should be

good enough for the extraordinarily wealthy darkmoney influencers dominating our public sphere

from the shadows.

The Court Should Resist a Broad

Ruling Establishing a New

Constitutional Right to

Anonymous Unlimited Spending.

The flotilla of anonymously-funded and largely

industry-aligned nonprofit organizations filing

amicus briefs in support of Petitioner should set off

alarm bells that something bigger than California’s

tax disclosure law is at issue. The dots are not hard

to connect. The bigger prize being sought is blanket

constitutional protection of dark money and secret

influence.

Indeed, a number of amici explicitly urge the

Footnote continued from previous page

the Rally That Led to the Capitol Hill Riot, CNBC (Jan. 9,

2021),

https://www.cnbc.com/2021/01/09/pro-trump-darkmoney-groups-organized-the-rally-that-led-to-deadly-capitolhill-riot.html.

74 See, e.g., John Doe No. 1 v. Reed, 561 U.S. 186, 228 (2010)

(Scalia, J., concurring) ( “There are laws against threats and

intimidation; and harsh criticism, short of unlawful action, is a

price our people have traditionally been willing to pay for selfgovernance.”).

Court to use this case to undo long-established

precedent upholding political and electoral

disclosure laws.75 Senator McConnell’s brief, for

example, argues that the Court “ought to revisit its

campaign finance disclosure precedents.”76 Setting

aside that Senator McConnell was once a strong

advocate for robust disclosure,77 his request signals

that he and his allies hope this case will pave the

way for more secrecy and more special-interest

influence.

75 See, e.g., Br. of American Legislative Exchange Council as

Amici Curiae in Support of Petitioners (Mar 1, 2021), at 14

(“The Court should take the present opportunity to instruct

the lower courts that the associational right to privacy is an

important right in all cases, compelled disclosure is per se

harm, and it is always the government’s burden to justify

infringement of that right.”) and 19-20 (“[T]he Court should . . .

restore a high bar for courts to uphold government invasions of

associational privacy in all contexts. One way to do that . . .

would be for the Court to clarify that “exacting scrutiny” and

“strict scrutiny” require the government to satisfy the same

proof requirements.”); Br. of the Legacy Foundation as Amici

Curiae in Support of Petitioners (Mar 1, 2021), at 25 (because

of the risks of “disclosure in the age of the Internet,” “the

scrutiny applied to disclosure statutes must be higher”).

See Br. of Sen. Mitch McConnell As Amicus Curiae in

Support of Petitioners (Mar. 1, 2021), at 12-13.

77 See, e.g., Mitch McConnell, NPR, Talk of the Nation, (2003)

(“Money is essential in politics, and not something that we

should feel squeamish about, provided the donations are

limited and disclosed, everyone knows who's supporting

everyone else.”); Mitch McConnell, Senate Floor Speech (June

2000) (“Virtually everybody in the Senate is in favor of

enhanced disclosure, greater disclosure, that’s really hardly a

controversial subject.”).

Amici Senators have also witnessed firsthand

dark-money influencers actually asserting a

constitutional right to wield their political power

anonymously. The U.S. Chamber of Commerce, an

anonymously-funded

trade

organization

and

corporate lobbying behemoth, refused to answer

congressional questions for the record on grounds

that all of its donor information is “protected by the

fundamental right of freedom of association

guaranteed to the Chamber and its members . . . by

the First Amendment to the Constitution.”78 The

Chamber doubled down on this extreme

constitutional theory in its amicus brief to the Court

in this case, arguing that NAACP v. Alabama

should protect its huge anonymous corporate donors

from any disclosure “whenever associational privacy

rights are threatened.”79

U.S. Chamber of Commerce, Questions for the Record for

Mr. Durbin, Reducing Emissions while Driving Economic

Growth: Industry-led Initiatives, Hearing before the Subcomm.

on Clean Air and Nuclear Safety of the S. Comm. on

Environment and Public Works, 116th Cong. (Oct. 17, 2019)

available

https://www.govinfo.gov/content/pkg/CHRG116shrg38868/pdf/CHRG-116shrg38868.pdf. In its response,

the Chamber asserted a categorical refusal to provide the

requested information, irrespective of how commanding the

donation might have been, with no individualized assertion of

risk of harm or First Amendment burden as contemplated by

this Court’s precedent.

E.g, Reed, 561 U.S. at 199-202

(describing the types or burden or harms a plaintiff must show

to prevail on a First Amendment challenge to disclosure

requirements).

Br. of the Chamber of Commerce of the United States of

America et al. as Amici Curiae in Support of Petitioners (Mar

1, 2021), at 16-19.

Elected legislators ought to know who is

appearing before them and what interests they

represent. So should courts. Most importantly, so

should citizens when that knowledge has a direct

bearing on the policies impacting their lives. Yet

special interest organizations like the Chamber

know that obscuring this information is critical to

maximizing their influence, and now invite this

Court to upend decades of precedent in furtherance

of that mission. The Court should firmly decline

their invitation.

aptly

described

Representative

Sarbanes’s amicus brief, the Court has a long

history of upholding disclosure rules, especially in

election cases, and of recognizing the value of

transparency in our democracy.80 While this case

does not involve public disclosures, dark-money

forces have made explicit their desire to create an

opening to further undo election-related disclosure

laws.81

80 Br. for Congressman John Sarbanes and Democracy 21 As

Amici Curiae In Support of Neither Party, at 5 et seq.

(detailing how “this Court has consistently upheld electionrelated disclosure requirements”); see also LOUIS D. BRANDEIS,

WHAT PUBLICITY CAN DO (1914) (“Sunlight is said to be the

best of disinfectants”).

See Br. of Sen. Mitch McConnell, supra note 76, at 12

(arguing that Buckley was “misguided” and that the Court

“frankly, ought to revisit its campaign finance disclosure

precedents,”), and 10 (describing this Court’s electoral

disclosure jurisprudence as “wrong-headed deference to

campaign finance disclosure requirements”).

Amici Senators urge the Court to resist this.

Further erosion of transparency and accountability

in our politics can only do more harm, as Justice

Scalia himself stated:

Requiring people to stand up in public for their

political acts fosters civic courage, without

which democracy is doomed. For my part, I do

not look forward to a society which, thanks to

the Supreme Court, campaigns anonymously

. . . hidden from public scrutiny and protected

from the accountability of criticism. This does

not resemble the Home of the Brave.82

CONCLUSION

The Court should recognize the important

government interest served by California’s limited

donor

disclosure

requirements,

but

importantly should firmly decline the invitation by

Petitioner and its amici to broadly undermine the

transparency necessary for citizens to perform their

role in our government.

82 Reed, 561 U.S. at 228 (Scalia, J., concurring).

March 31, 2021

Respectfully submitted,

DANIEL P. CHIPLOCK

Counsel of Record

Lieff Cabraser Heimann &

Bernstein, LLP

250 Hudson Street

New York, NY 10013

dchiplock@lchb.com

212.355.9500

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.