One other aspect of today's Citizens United decision (now in HTML) worth noting.
Remember last week when I flagged the issue of anti-gay groups seeking to thwart public disclosure of their activities? Well, it came up today again, as eight of the Court's nine justices upheld the requirements under McCain-Feingold that when corporations (or others) air independent expenditure ads, the ads need to come with a disclaimer and full disclosure as to the funders. Among other things, wrote Justice Kennedy, "the public has an interest in knowing who is speaking about a candidate shortly before an election." Moreover,
With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are “ ‘in the pocket’ of so-called moneyed interests.” The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
Who could disagree with something so innocuous? Justice Thomas.
I dissent from Part IV of the Court’s opinion, however, because the Court’s constitutional analysis does not go far enough. The disclosure, disclaimer, and reporting requirements in BCRA §§201 and 311 are also unconstitutional....
Amici ’s examples relate principally to Proposition 8, a state ballot proposition that California voters narrowly passed in the 2008 general election. ... Any donor who gave more than $100 to any committee supporting or opposing Proposition 8 was required to disclose his full name, street address, occupation, employer’s name (or business name, if self-employed), and the total amount of his contributions. 1 See Cal. Govt. Code Ann. §84211(f) (West 2005). The California Secretary of State was then required to post this information on the Internet.
Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result. ...
Now more than ever, §§201 and 311 will chill protected speech because—as California voters can attest—“the advent of the Internet” enables “prompt disclosure of expenditures,” which “provide[s]” political opponents “with the information needed” to intimidate and retaliate against their foes. Thus, “disclosure permits citizens ... to react to the speech of [their political opponents] in a proper”—or undeniably improper —“way” long before a plaintiff could prevail on an as-applied challenge.
I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’ ”
That's right: were there four more Justice Thomases, not only could corporations engage in unlimited pro-candidate speech, but individuals could give unlimited amounts to candidates -- and they could all do so completely anonymously.
Too often, Justice Thomas gets accused of being an unthinking automatic second vote for whatever Justice Scalia says. Untrue. He's his own unique sphere of wrongness, and not even Scalia, Alito, Kennedy or the Chief Justice were willing to follow him on this one.
