Malloy Should Stand Up for Election Transparency

Last week, Gov. Dan Malloy vetoed House Bill 5556, which would have brought needed transparency to Connecticut elections and made the Constitution State a national leader on campaign finance disclosure. At a time when outside groups are poised to swamp elections with historic levels of undisclosed political spending, it is unfortunate Malloy rejected this robust bill using erroneous constitutional claims.

One of these, in particular — the governor’s invocation of a 1958 Supreme Court decision entitled NAACP v. Alabama –– demands correction. The case recognized the NAACP’s right to shield its membership list from the state of Alabama at the height of the civil rights movement, when members faced widespread threats of physical violence and the state government itself worked to expel the NAACP from the state.

Malloy pointed to the NAACP case in rejecting a part of the law that would have required organizations to identify its top five donors in political advertisements. Simply put, the governor is wrong to suggest that this donor disclosure violates the tenets of the NAACP case, other Supreme Court case law, or the First Amendment. The context of the NAACP case could not be more different from the election environment in present day Connecticut.

The NAACP case was decided in a time of extraordinary racial violence and discrimination. Just two years before, the Montgomery bus boycott took place, and the first black student attempting to integrate the University of Alabama was chased into a classroom by a mob of 1,000 people chanting, “Let’s kill her, let’s kill her.” Snipers fired on integrated buses and bombings were commonplace. The state of Alabama sought access to the NAACP’s membership list with the express purpose of putting the organization out of business.

The Supreme Court recognized that if disclosure were applied to this dissident, historically unpopular group, it would cease, entirely, to engage in political speech. The price of disclosure would be the total exclusion of dissenting views from the robust marketplace of political speech the First Amendment is designed to protect. As a result, the Court held that requiring the disclosure of the NAACP’s membership list violated the First Amendment.

In 2010, the Supreme Court ruled 8-1 in Citizens United that disclosing who donates to organizations engaged in political spending is constitutional and furthers important democratic interests. As the Court explained, disclosure guards against improper relationships between government officials and political spenders, helping ensure the integrity of government and our democratic processes. Given Connecticut’s history of corruption in recent years, including the imprisonment of former Governor John Rowland, fighting corruption is plainly an interest of the highest order.

Moreover, as Citizens United explained, disclosure enhances public debate by informing the public about who is speaking before an election, making it easier for voters to make knowledgeable decisions about the messages they receive. The importance of an informed citizenry for democratic self-governance further explains why disclosure is constitutional.

Ignoring the Supreme Court’s wholehearted embrace of disclosure in Citizens United, Malloy and opponents of H.B. 5556 wrongly invoked NAACP v. Alabama to argue that the bill unconstitutionally restricts organizations’ First Amendment rights.

Conditions like those of the Civil Rights era are exceedingly rare today. The groups now resisting disclosure — like the U.S. Chamber of Commerce, which has vowed to spend $100 million on electioneering this year, or the defenders of “traditional marriage” behind Proposition 8 in California — are well within the political mainstream. The Supreme Court has applied the NAACP exception to dissident groups when anonymity is a necessary “shield from the tyranny of the majority.” The Court has made clear that exceptions to disclosure only apply when needed to “protect unpopular individuals from retaliation – and their ideas from suppression – at the hands of an intolerant society.” The argument that the views of the Chamber or traditional marriage backers would disappear entirely from our civic debates without exceptions to disclosure cannot be taken seriously.

To be sure, as the Supreme Court has repeatedly recognized, where there are demonstrated and credible threats of violence to an organization’s members, there should be exceptions to disclosure. Of course, any reasonable citizen would denounce these kinds of threats – they do not constitute any part of a legitimate public debate.

But the rare occasion on which dissident speakers may be subject to reprisal is not a valid reason to view all disclosure laws as unconstitutional. If some disagree with your political speech and voice their disagreement, this is natural. Part of engaging in public debate is receiving the other side’s response, which may include some awkward or uncomfortable discussions. These are not constitutional injuries; they are signs of a healthy and robust democracy. Even Justice Antonin Scalia has expressed dismay regarding anonymous political spending, saying that “requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

Robust disclosure is an important part of our democracy, particularly where organizations are spending millions of dollars to try to influence our votes. Without this disclosure, it is nearly impossible to vigilantly guard against corrupt arrangements or to properly evaluate the messages of political advertisements. The disclosure requirements of H.B. 5556 are constitutional and comply with the precedent set in Citizens United and NAACP. Malloy should not let this misunderstanding of the law stand in the way of transparent elections in Connecticut.