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Friday, July 02, 2021

On Americans for Prosperity

SCOTUS on Thursday declared invalid a California law requiring not-for-profits to file with the state their Schedule B's revealing major donors. It was another largely 6-3, with Roberts writing for the majority, Thomas joining in all but a few parts, Alito and Gorsuch joining in all but a few parts, and Sotomayor writing the dissent. A couple of points aside from the First Amendment merits

First, the majority declared the California law facially invalid because of its overbreadth, while Thomas questions overbreadth and facial unconstitutionality. Thomas seems to use that departure to fight about universality, making two points. First, while speaking of facial invalidity, "the Court does not say that it is 'provid[ing] relief beyond the parties to the case'"--that is, it is not expressly making the judgment universal. Second, Thomas argues that the judgment does not depend on facial invalidity, only the opinion--"One can understand the Court’s reasoning as based on the fundamental legal problems with the law (that are obvious in light of the facts of this suit) that will, in practice, prevent California from lawfully applying the disclosure requirement against a substantial number of entities, including petitioners."

This is the right way to understand facial invalidity, within the distinction between judgments and opinions. The Court's judgment/injunction remains particularized to the parties. The reasoning in the opinion explaining the judgment establishes judicial precedent that the law is invalid when applied to anyone else. That precedent binds courts in future cases, compelling the court declare the law invalid and to reject new enforcement efforts against others.  If California attempts future enforcement, the new targets must go to court for a new or expanded injunction. They will get it, because SCOTUS precedent establishes that the law is invalid as to all persons. But they must take that step. And California does not violate the injunction in this case by attempting future enforcement against others.

Second, I am intrigued by Zachary Price's model of "symmetrical constitutionalism, which I discuss in a forthcoming essay. Price proposes that justices should favor "when possible, outcomes, doctrines, and rationales that distribute benefits across major partisan divides, as opposed to those that frame constitutional law as a matter of zero-sum competition between competing partisan visions." The idea is to focus on the principle at issue, rather than on who won the immediate case, where the principle will protect politically distinct people and entities

On its own, AFP fits Price's  model, as shown by the range of groups--ACLU, NAACP, PBS--that filed amicus briefs in favor of the plaintiffs. But the Court divided across ideological/partisan lines and the case is being reported and analyzed as a victory for wealthy conservative groups and their wealthy conservative donors. One reason for many is a belief that the "other side" does not follow the principle as much as the outcome--Justice Alito would be less solicitous of the First Amendment concerns if, say, Texas tried to do a deep-dive into Planned Parenthood's donor base. Another is the fear of this case as a stalking horse for further limits on campaign-finance regulation by imposing the same protections for contributions as for expenditures, which plays into a zero-sum competition between competing partisan visions.

Posted by Howard Wasserman on July 2, 2021 at 09:22 AM in First Amendment, Howard Wasserman | Permalink

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