Party leaders and commentators have blasted the Supreme Court’s decision in AFPF v. Bonta. But they’ve spared those who are actually to blame.
Party leaders and commentators have blasted the Supreme Court’s decision in AFPF v. Bonta. But they’ve spared those who are actually to blame.
D emocrats and progressive pundits are hopping mad about the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta, which held that states could not routinely ask nonprofit advocacy groups to disclose their donors:
- Chuck Schumer: “Adding insult to injury, the Court issued a second jaw-dropping decision today making it much harder to expose the evils of dark money in our political system. If you believe in open and fair democracy and the principle of one person, one vote, today is one of the darkest days in all of the Supreme Court’s history.”
- Nancy Pelosi: “The decision in Americans for Prosperity further harms our democracy by allowing the suffocation of the airwaves caused by big dark special interest money. This torrent of dark money silences the voices of voters and prevents passage of commonsense, bipartisan and popular legislation – from gun violence prevention to climate action to LGBTQ equality. It is fundamentally anti-democratic, and it cannot go unanswered.”
- Sheldon Whitehouse, always good for some conspiratorial hysteria: “The Court that Dark Money Built just handed dark-money donors a massive win. We are now on a clear path to enshrining a constitutional right to anonymous spending in our democracy, and securing an upper hand for dark-money influence in perpetuity.”
- Ian Millhiser: “The Supreme Court just made Citizens United even worse. . . . It’s a great day for dark money. . . . The decision is, simply put, a disaster for anyone hoping to know how wealthy donors influence American politics.”
- Richard Painter: “This 6-3 Supreme Court decision could endanger our national security if it is applied to donors from outside the U.S.”
- Rick Hasen, here and here: “It will be much harder to sustain campaign finance disclosure laws going forward.”
(Side note: You can see how Pelosi, Millhiser, and Hasen deceptively frame the case by the fact that they persistently misidentify the plaintiff. Each refers to the case as being brought by “Americans for Prosperity,” the name of the 501(c)(4) organization that can participate in elections, rather than the Americans for Prosperity Foundation (AFPF), the actual plaintiff, which is a 501(c)(3) organization prohibited from engaging in electoral politics. It speaks poorly not only of Hasen that he has been doing this but of the New York Times fact-checkers that they’ve let him get away with it.)
Of course, not everybody on the Left is that horrified. An ACLU spokesman who blasted the case on Twitter had to walk back his remarks after being reminded that the ACLU had filed an amicus brief on the side of AFPF. Benjamin Chavis, the former head of the NAACP, described the case as “a home run for civil rights:”
I believe this ruling presents one of the most significant wins for civil rights in decades. . . . In taking the side of AFPF, the NAACP Legal Defense and Educational Fund, the Southern Poverty Law Center, and many other nonprofit organizations, the high court invalidated the State of California’s mandate requiring tax-exempt charities to release the names of their largest donors. That’s good news because the demand is entirely tone-deaf to the American people’s freedom to freely associate with outside groups without fear of retribution, which the high court upheld during the civil rights movement. . . . The high court deserves praise for yet again defending the rights of Americans who privately support activism efforts of paramount importance to the citizenry’s right to life, liberty and the pursuit of happiness. The ruling in AFPF will protect not only civil rights but the causes of every underserved and underrepresented segment of the population that are worth fighting for each day.
As Chavis noted, the Court’s ruling reaffirmed the 1958 NAACP v. Alabama decision, which had protected the NAACP’s members from a harassing demand by Alabama for disclosure of their names. It should have been obvious that California’s demand for donor names, which Chavis described as “tone-deaf to the American people’s freedom to freely associate,” was unconstitutional for exactly the same reasons. The AFPF v. Bonta decision sweeps somewhat more broadly than the NAACP v. Alabama decision, but there is a predictable, straight line of legal reasoning that leads from the latter to the former.
All of this raises a question: Why, if they are upset at the consequences of having the logic of NAACP v. Alabama extended from an organization’s members to its donors, aren’t Schumer, Pelosi, Whitehouse, and others angrier at the California attorney general’s office for picking this fight on such a bad set of facts? Bad facts, as the saying goes, make bad law, and the AG’s office was responsible both for the bad facts of this suit and for defending it all the way to the Supreme Court in spite of them. The trial record of what the AG’s office did revealed an egregious disregard for the privacy of donor information while offering no evidence that such information was used, even once, for a legitimate law-enforcement purpose. The Tea Party-era initiative may have been intended to go after conservative nonprofits, but by allowing a major data breach to harm Planned Parenthood, the California attorney general’s office made it easier for AFPF to round up perhaps the most ideologically broad coalition of amicus briefs on the same side of a case in Supreme Court history. All of those briefs agreed that the facts were bad; even the Biden administration’s brief threw the California attorney general’s office under the bus.
To understand why the California AG’s office has been spared Democrats’ ire, we need only look at who managed the office into this cul-de-sac of bad strategy and administrative incompetence in the first place. The policy at issue in the case began under Jerry Brown before he was elected governor in 2010, but it was mainly administered, aggressively enforced, and defended in court under his successors, Kamala Harris and Xavier Becerra. It was Harris who went after the plaintiffs who brought the case, and it was Becerra who defended the suit all the way to the Supreme Court. Somehow, however, Democrats and the progressive commentariat have spared Harris and Becerra much criticism for their parade of mistakes.
When conservatives say that Harris and Becerra are both authoritarian and incompetent, this is the sort of thing we mean. Democratic commentators seem publicly unable to admit that Harris might be unpopular for reasons other than her race and gender. Yet, there were reasons why her presidential campaign crashed and burned. An ongoing series of anonymous internal leaks damaging to Harris has made clear that Democrats on the inside are well aware of her problems. The question is when progressive commentators and Democratic politicians will start saying out loud that she is hurting their cause.