Election disclosure laws are traditionally used to combat corruption in the political process.1 These laws typically require candidates, parties, or political committees to disclose “the identity of contributors and the dollar amount of their contributions.”2 Shining a light on who is financing a candidate is one of the last remaining tools for regulating campaign finance3 in a legal landscape that allows near-unlimited spending for certain groups.4 But dark money threatens this tool.
Dark money refers to financial influences that affect the outcome of elections — through uncoordinated advocacy of a candidate — without being subject to any campaign finance disclosure requirements.5 This is done in part through donating to organizations that are not categorized as political committees6 such as 501(c)(4) groups: a “social welfare” category that includes any group broadly focused on promoting the general welfare of the community.7 501(c)(4)s span from the National Rifle Association to volunteer firefighter companies8 and have virtually no limit on the legislative drafting and lobbying, advocacy of candidates, and donations to political committees they can engage in.9 The ability for donors working through these groups to avoid revealing their identities provides a substantial loophole in a disclosure regime aimed at answering those questions for the polity.10
Some advocates have accordingly called for broader disclosure laws that cover organizations like 501(c)(4) groups whose primary social purpose is not political.11 Indeed, four states now have some sort of disclosure regulation that includes some 501(c)-class organizations.12 The most recent of such laws — passed this year in New Jersey — suggests that its goal is to “curb the influence of so-called dark-money groups.”13
However, these laws — though admirable in their transparency-related goals — run into significant First Amendment issues. The Supreme Court’s freedom of association jurisprudence, beginning with NAACP v. Alabama ex rel. Patterson,14 protects the privacy of one’s associations, including membership in organizations engaged in issue advocacy. Indeed, this “right of association . . . was the lifeline that prevented Southern states from using public disclosure, registration, or tax laws to destroy either the NAACP or the civil rights movement.”15
This Note argues that recent cases upholding broader donor disclosures for nonprofit organizations represent a departure from established First Amendment jurisprudence. The outcomes of these cases are mistaken, and these mistakes have resulted from gradual changes in the “exacting scrutiny” standard required in freedom of association cases outside of the election context. This Note further argues that rather than return to the original standard, which does little to combat the challenge of dark money, courts should employ a proportionality-based approach. Such an approach would allow the First Amendment, in the context of association, to serve as both a shield for David — protecting smaller, more fragile movements’ and organizations’ associational interests in anonymity — while also providing a sword against Goliath — upholding disclosure regulations targeted at larger organizations funneling dark money into elections and harming the democratic process.
Part I describes the development of freedom of association under the First Amendment. After the Supreme Court first recognized the right to association in Patterson, a wave of cases in the late twentieth century upheld its strict scrutiny standard for analyzing government actions that infringed on association. Part II describes the subsequent split in jurisprudence developed by Buckley v. Valeo.16 The issue of direct campaign contributions created a fork in the road of association jurisprudence; restrictions on someone’s right to freely and privately associate were upheld in light of the compelling government interest to promote transparency in election financing for voters. But Buckley’s universe of election finance cases was never meant to “displace[] the stringent standard set out in [Patterson].”17 Nevertheless, some circuits have recently departed from the traditional doctrinal separation of the Buckley line of cases and the Patterson line of cases, applying Buckley’s lower scrutiny to nonpolitical committees. Part III presents proportionality as a way forward for managing the challenges that dark money legislation aims to combat while preserving the associational freedoms of Patterson.18
I. THE DEVELOPMENT OF FREEDOM OF ASSOCIATION
The right to “freely associate” is not found in the text of the First Amendment. It was first introduced in Patterson,19 which concerned a state law that required foreign corporations to register a corporate charter before conducting business in the state.20 When Alabama demanded a list of the National Association for the Advancement of Colored People (NAACP)’s leaders and membership, the government asserted that its interest lay in combatting organizational violations of this foreign corporation registration statute.21
The NAACP challenged the statute. In light of the threats members faced in being a part of the NAACP’s work, compelled disclosure would directly “induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations.”22 The Court found “privacy in group association may . . . be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”23 As such, violations of this associative interest were suspect even when the regulation had an independent, compelling intention like combatting business registration fraud.24
The opinion’s discussion of the standard never used the term “exacting scrutiny.” It instead promulgated that “state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny”25 and that the “interest of the State must be compelling.”26 In Patterson, no such interest could be found.27
A year later, another NAACP chapter also refused a demand to produce a list of members in Bates v. City of Little Rock.28 Citing Patterson, the Court affirmed that “it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected.”29 The Court required the government to demonstrate a “compelling” and “cogent . . . interest in obtaining and making public the membership lists.”30
Fairly quickly, the Court extended these principles from organizations that were being compelled to produce lists to individuals who were compelled to disclose their associations and organizational memberships. The Court confronted an Arkansas statute that required public school teachers to disclose any organization they were members of or regularly contributed to.31 The Court recognized the state’s interest in investigating teacher fitness,32 but the law’s burden was impermissibly limitless, requiring teachers to reveal “every conceivable kind of associational tie — social, professional, political, avocational, or religious.”33
In this discussion, the Court explicitly reaffirmed that narrow tailoring was required for compelled disclosures, saying even a compelling interest “cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.”34 Critically, the opinion also clarified that immediate public disclosure of the associations was not necessary for the disclosure to be impermissible; there was still an underlying pressure to stay away from associations “which might displease” the administrators receiving the report.35
Circuit courts addressing compelled disclosure of novel associations in a non-election-finance context continued to remain faithful to Patterson as they expanded and applied the rule. The D.C. Circuit considered one statute that required members of the Communist Party to disclose their affiliation.36 The court applied Patterson and found that compelling disclosure could be a “substantial burden” on free association.37 In the Fourth Circuit, Master Printers of America v. Donovan38 concerned reporting requirements under the Labor-Management Reporting and Disclosure Act (LMRDA); the requirements were challenged on grounds that they would chill membership.39 Like in the teacher case, the court stated that “a mere showing of some legitimate governmental interest” was insufficient to survive “‘exacting’ scrutiny.”40 As described by the court, this took form in a four-factor test and still required tailoring:
The degree of infringement on [F]irst [A]mendment rights; the importance of the governmental interest protected by the Act; whether a “substantial relation” exists between the governmental interest and the information required to be disclosed; and the closeness of the “fit” between the Act and the governmental interest it purports to further. After weighing these factors, it will be possible to determine whether the burden imposed . . . is sufficiently justified by the interests the Act seeks to protect.
The court also interpreted Patterson as requiring an additional “finding of a substantial ‘chill,’” by demonstrating the statute would lead to “threats, harassment, or reprisals to specific individuals.”42
The Sixth Circuit followed suit43 by explicitly referencing Master Printers’s analysis, reiterating its four factors, and echoing that compelled disclosures were subject to exacting scrutiny.44 The court also restated Master Printers’s requirement of a threshold “showing that the statutory scheme will result in threats, harassment, or reprisals.”45 Here, allegations of the chilling effect were consequential enough to inquire whether the disclosure requirement was “narrowly tailored to serve a compelling governmental interest.”46 The court found the interest in labor peace was sufficiently compelling, “outweigh[ed] the chill,” and the compelled disclosure was “carefully tailored.”47 In this way, the Sixth Circuit used the language of “exacting scrutiny” right alongside a strict scrutiny analysis — searching for a compelling interest and narrow tailoring. And it indicated that it read the Fourth Circuit to be doing the same.48
The Ninth Circuit also agreed that compelled disclosure of associations “must survive exacting scrutiny.”49 Similar in some ways to the Master Printers approach, the court read Patterson as requiring a threshold finding of chilling effects to trigger strict scrutiny and used a two-part framework. First, a prima facie showing of a First Amendment infringement through harassment, membership withdrawal, or a chilling effect must be demonstrated, and then the burden is upon the government to demonstrate “that the information sought . . . is rationally related” to a compelling government interest that uses “least restrictive means.”50
In sum, until recently the development of circuit case law continued to stay faithful to the strict requirements of Patterson. Though some of these decisions began to use the language of exacting scrutiny or expanded their tests to include certain thresholds, their discussions always made clear that a compelling government interest and close tailoring were still required. This suggests “exacting scrutiny” was not meant to introduce a new, lower standard, but was seen as interchangeable with strict scrutiny. As the next Part will show, however, the intervening proliferation of election cases concerning compelled disclosure became mistaken for a change in the standard that applies to nonelection cases.
II. THE EROSION OF FREEDOM OF ASSOCIATION
The language of “exacting scrutiny” first appeared in the associational context in Buckley v. Valeo. The opinion extends over a hundred pages before reaching the issue of compelled disclosure and associational freedoms. But, at the outset, Buckley took a moment to recognize the “freedom to associate with others for the common advancement of political beliefs and ideas.”51 The Court expressed that state action threatening this freedom “is subject to the closest scrutiny,”52 requiring “a sufficiently important interest and employ[ing] means closely drawn to avoid unnecessary abridgement of associational freedoms.”53
When discussing the disclosure requirements specifically, the Court confirmed that the “strict test established by [Patterson]”54 applied, and that it was one of “exacting scrutiny.”55 As such, the compelled disclosure could not “be justified by a mere showing of some legitimate governmental interest.”56 Unlike the cases before it, Buckley dove into the merit of government interests where the “‘free functioning of our national institutions’ is involved.”57 The interests in “provid[ing] the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate’”58 and in deterring corruption and its appearance were found to be substantial.59 Notably, this Patterson standard — which Buckley explicitly referred to, upheld, and applied in the portions of its opinion that addressed disclosure and association — gave no mention of “exacting” language. This suggests that Buckley’s use of this term in the context of upholding Patterson’s strict test did not mean to set a new standard. Indeed, even when the Court’s opinion turned to discussing the personal disclosure requirement of Section 434(e),60 it affirmed that “in considering this provision we must apply the same strict standard of scrutiny, for the right of associational privacy developed in [Patterson] derives from the rights of the organization’s members.”61
The Buckley Court also referred to a need for narrow tailoring.62 The Court made clear that finding a compelling interest was not enough, even if it was substantially related to the regulation employed.63 Notably, the opinion recognized that a chilling effect was expected and that “public disclosure . . . may even expose contributors to harassment or retaliation,”64 but that in the context of campaign finance, disclosure was still “the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.”65 It was not that campaign disclosure merited a new standard, but just that in this context, the strict standard was met.
However, as election financing jurisprudence continued to develop, this standard relaxed and became distinct from Patterson. Courts began to cite and apply Buckley in the context of campaign finance disclosures without requiring any narrow tailoring in their analysis.66 For example, in Citizens United v. FEC,67 an organization challenged parts of the Bipartisan Campaign Reform Act of 200268 (BCRA). One portion in particular required individuals to file disclosure statements for spending on electioneering communications.69 Though the Court stated that this requirement was subjected to “exacting scrutiny,” it only demanded “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.”70 The Court had already held that this portion of the BCRA met this standard71 because it served in “help[ing] citizens ‘make informed choices in the political marketplace,’”72 and the Court found that the statute was still valid as applied to requiring disclosure around commercial advertisements at issue in the case.73 Accordingly, “disclosure requirements could reach beyond express advocacy”74 because the informational interest still held up as compelling: “This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”75 However, while broadening the universe of what could mandate disclosure beyond express advocacy, the majority also narrowed the government interest around combatting corruption to combatting only quid pro quo corruption or its appearance.76
The departure from narrow tailoring has become more entrenched, with one Third Circuit case explicitly indicating that exacting scrutiny in the associational context “differs from ‘strict scrutiny’. . . in that it does not engage in a ‘least-restrictive-alternative analysis,’”77 in direct opposition to Buckley’s language.
Two circuits have addressed recent state dark money regulations. They have found that the weakened form of exacting scrutiny described above applies, and that dark money disclosure requirements survive this scrutiny.
In California, Americans for Prosperity Foundation v. Becerra78 most recently addressed this issue. The California Attorney General keeps a registry of charitable corporations and is authorized to “conduct whatever investigation is necessary” to maintain it.79 Organizations in the registry must submit a copy of the IRS Form 990.80 This form typically includes a Schedule B, which requires nonprofits to “report the name and addresses of their largest contributors.”81 In effect, the state compels organizations to disclose their donors by requiring that they submit the full Schedule B. When the Americans for Prosperity Foundation challenged this forced disclosure, the Ninth Circuit found it survived “exacting scrutiny.”82 But it applied the lower exacting scrutiny; no tailoring was required.83 This followed in the footsteps of an earlier Ninth Circuit case, Center for Competitive Politics v. Harris,84 which found there was no narrow tailoring requirement because the chilling burden did not reach a threshold triggering stricter scrutiny.85 This misinterpretation carried over into Becerra.86
The Second Circuit also followed in this trend in the recent case Citizens United v. Schneiderman.87 A similar charities regulation compelling organizations to submit the Schedule B was at issue.88 The Second Circuit found that the exacting scrutiny standard applied to both the Buckley and Patterson lines of cases, which it defined similarly to the Ninth Circuit. Under this framework, the court found that its “task [was] easy,”89 but it made its job “easy” by slicing off the narrow tailoring analysis Patterson required.
The alternative standard that misapplications of Buckley created does not represent an overall shift down, but rather a circuit split; other recent cases stand faithful to the Patterson standard.90 For example, one Fifth Circuit case concerned Familias Unidas, an unincorporated organization that organized for improvements to its school district.91 Following a nonviolent boycott by Mexican-American students in protest of their school board’s actions, a county judge requested a list of the organization’s members per a local law empowering him to compel such disclosure.92 The Fifth Circuit emphasized that privacy in association is critical “with respect to groups championing unpopular causes”93 and that “the Supreme Court has applied an exacting scrutiny to compulsory disclosures of membership lists or associational ties.”94 Unlike the Ninth or Second Circuits’ exacting scrutiny, this test required an “overriding, legitimate state purpose” and tailoring “drawn with sufficiently narrow specificity.”95 The regulation swept “too broadly” and failed this tailoring.96
After the opinion in Americans for Prosperity Foundation v. Becerra, Americans for Prosperity petitioned for rehearing en banc and was denied.97 The opinion denying rehearing affirmed that exacting scrutiny was a lower standard than strict scrutiny and was met here.98 The dissent from this denial of rehearing en banc rejected this distinction and insisted that exacting scrutiny referred to one single standard in election and non-election cases that never lost its tailoring requirement. Rather, the requirement was simply always met in the election context because “Buckley fashioned a per se rule” which categorically established “that disclosure is the least restrictive means of reaching Congress’s goals.”99 Under this logic, in the election context the narrow tailoring analysis was occasionally dropped from opinions because it did not require any new examination into less restrictive means.100
Most recently, Americans for Prosperity challenged the current New Jersey law in Americans for Prosperity v. Grewal.101 The law regulates what it defines as independent expenditure committees: any 501(c)(4) or 527 organizations that spend a certain amount on “(1) influencing elections; (2) influencing legislation; or (3) providing political information.”102
In the face of ongoing litigation and circuit disagreement, the question becomes: What standard should apply? Part III discusses using proportionality to reconcile this circuit split.
III. PROPORTIONALITY ALLOWS ASSOCIATION TO SERVE AS BOTH A SHIELD AND A SWORD
As described above, some circuits have departed from the strict scrutiny required by Patterson, while other circuits have remained faithful to its narrow tailoring requirement, creating a circuit split in need of resolution. This could be easily resolved by a reaffirmation of the Patterson standard. However, the departure also provides an opportunity to reset. The Court could use a third approach — proportionality — because neither current test is equipped to address the challenges in freedom of association jurisprudence.
Neither Patterson’s strict scrutiny test nor the apparently lower Buckley test is capable of satisfactorily solving the tension between needing to address the modern dark money phenomenon and ensuring that legitimate social movements are not chilled. This challenge accordingly calls for a proportionality approach.
First, Patterson’s strict scrutiny test is ill suited for the unique confluence of challenges that come with effectively tackling dark money through legislation. For any disclosure law aimed at combatting dark money, the state would first need to show a compelling interest. Under a Court that has narrowed the universe of what constitutes a permissible compelling interest, there is no incentive for an honest discussion about the “real interest” — that is, a more honest discussion of the complex and varied interests at play — if surviving challenge requires judges to rationalize in the language of a few permissible compelling interests.103 The primary interests currently available104 are the informational interest in “alert[ing] the voter to the interests to which a candidate is most likely to be responsive” and combatting corruption and its appearance.105 The latter is largely unavailable; the Court has said that an interest in combatting corruption or the appearance of corruption in the electoral context is insufficient for nonpolitical committees such as 501(c)(4)s.106 And the use of the “informational interest” has been checkered.107 The inconsistency of its application, “compounded with growing theoretical pressures arguing that disclosure’s ability to educate the public is greatly overstated,”108 puts it on shaky ground. Even if a compelling interest were found, many laws aimed at dark money would fail narrow tailoring analysis. The primary ways states have attempted to regulate dark money so far are sweeping and have survived only because both circuits addressing dark money laws mistakenly applied Buckley’s standard.109 The current New Jersey law, for example, would likely fail narrow tailoring because it sweeps in too many nonprofit groups that are not the target of the government’s anti-corruption interest.110 Put simply, it is unclear if any legislative approach to dark money could actually survive the strict standard on its face, leaving governments with no solutions.
On the other hand, fully adopting the Buckley test is also a poor solution. If narrow tailoring is not required for disclosures, then legislation like the New Jersey law that sweeps in benign organizations will survive. But this chills membership in smaller organizations facing violence or other retaliation. If NAACP leaders in Alabama had been subject to Buckley’s standard in 1958, their organizing efforts to support bus boycotts and provide legal assistance to black students seeking university admission would have shut down because of the risks members would face if their identities become public.111 More recently, because Familias Unidas was unpopular among school board leadership and the broader community, the Fifth Circuit recognized that membership would be impermissibly chilled because “public recrimination [was] certain to follow from public disclosure.”112 Small, unpopular movements like this are at high risk of shuttering if they are subject to disclosure.113 At the same time, the larger organizations involved in political spending have little risk of their message being chilled or their movement being stomped out by disclosure alone, but their harm to democratic elections is high.114 It is plausible that owing to their numbers, even if some donations were deterred, enough engagement would remain for these larger movements to exert undesirable influence.115
In short, neither the Patterson nor the Buckley standard currently protects the anonymity interests of fragile or smaller movements while addressing the campaign abuse of larger groups that can remain anonymous. These inadequacies make the case for proportionality.
The best way forward from this jurisprudential checkerboard is to employ a proportionality approach to manage compelled disclosure laws targeting dark money. A few reasons favor this approach. First, the flexibility it affords courts in addressing the unique challenges of dark money makes it more effective. Second, a proportionality approach is consistent with the spirit of First Amendment jurisprudence. Third, a proportionality approach best promotes the theoretical and philosophical justifications of freedom of association in particular.
Professor Jamal Greene’s “typical proportionality formulation” is a useful model for how this would look in practice:
(1) [S]ome discernment of the nature of the claimed right; (2) an assessment of the means-ends fit between the law or act and some legitimate governmental objective; (3) a “least-restrictive means” or “minimal impairment” test that asks whether the government has less rights-impairing alternatives it could have pursued; and (4) balancing in the strict sense, which requires the adjudicator to assess whether there is significant disproportionality between the marginal benefit to the government and the marginal cost to the rights-bearer.
Applying this to a hypothetical regulation similar to the California regulation at issue in Harris demonstrates how this might work in practice. If a state attorney general or charity bureau began to compel the Schedule B form for all 501(c)(4) organizations, the nature of the claimed right would be the right to privacy in group associations. The means-ends fit would be substantial — there is a connection between promoting the informational interest in educating voters117 and requiring the organizations to disclose the donors’ funding, lobbying, and candidate advocacy.118 The minimal impairment analysis would consider whether limiting the regulation to 501(c)(4) organizations (leaving out 501(c)(3) groups119) was the narrowest way to effectively tackle this problem. One argument to the contrary would be that not all 501(c)(4)s in a particular state perform functions similar to a political committee.120 Consequently, this regulation might still chill the donations and activity of several organizations that focus more on general community advocacy or other social welfare purposes. A more appropriately narrow regulation may not rely at all on a tax-code-based status121 and instead on an affirmative definition of politically involved organizations that can more accurately circumscribe just those organizations that engage in high levels of lobbying or advocacy for candidates. On the other hand, a more sweeping formulation might fail this prong but still be found permissible. This could happen if, in the fourth prong, the state could demonstrate that the sheer magnitude of influence by such organizations is much higher than the organizations or movements it may chill — such that it “justif[ies] the harm to constitutionally protected interests.”122
In this way, a disclosure regulation that would fail strict scrutiny under narrow tailoring could survive proportionality because of the more complex considerations this four-prong framework accommodates. More specifically, proportionality offers three benefits.
1. Flexible Functionality. — First, this approach is the most impactful in directly addressing the unique universe of dark money organizations.123 As the hypothetical shows, the challenge with legislative solutions is that they may choose to circumscribe based on broad descriptions of “political information” or simply apply to whole categories of nonprofit organizations, which could include anything from local soup kitchen operations to public radio. As a result, the state is left with asserting interests such as combatting charity corruption, which conceal the “true” motivating purpose of the legislation,124 because the means-ends fit may be more defensible and lead to fewer problems around narrow tailoring.125
Proportionality addresses these challenges by encouraging a more open and honest discussion by government when developing legislation,126 while a categorical approach hides the ball.127 This discussion could include things that (1) on their own have not been found to be appropriate compelling interests in current jurisprudence but could be sufficiently compelling taken together128 or (2) do not lend themselves to legislative solutions that can be narrowly tailored but are better for the democratic process on balance. For example, there may be a slightly weaker correlation between disclosure and fighting quid pro quo corruption in a dark money context,129 but that weaker interest could be considered in combination with an interest in increasing minority democratic participation through building trust.
One concern is that a framework that always allows for a variety of factors on either side could “creat[e] an unacceptable level of indeterminacy.”130 However, courts are able to make rational judgments about the relative weight of interests when the downsides associated with impinging on the associational right are sufficiently strong.131 The impact on the rights of a smaller, less mainstream organization would be outsized in comparison to the democratic legitimacy interest achieved from tracking a relatively small amount of advocacy funds.132 Though there will always be a concern that departures from the ideal in a proportionality framework might even be greater than the departures that have already occurred, it seems more appropriate to trust judicial discretion in the latter because it structurally allows for greater discussion and weighing of interests — more transparency in how the discretion is employed.
2. Comports with Jurisprudence. — Second, Justices and scholars have indicated that a proportionality approach is appropriate in First Amendment jurisprudence.133 Professor Richard Fallon has suggested that because the Court never “reach[ed] agreement about the precise nature of the inquiry”134 required by strict scrutiny, in its application the Supreme Court has at times engaged in “relatively ad hoc, weighted balancing of public and private interests in freedom of association cases.”135 Indeed, Justice Scalia explicitly referred to the strict scrutiny applied in one First Amendment case as a “balancing test” in practice.136 Justice Marshall’s formulation of a “compelling interest” itself was a proportionate inquiry when applied in First Amendment contexts.137 And just last Term, Justice Breyer advocated to reject the categorical tiers of scrutiny in a case that put governmental interests in promoting decency in trademark speech against the expressive interest of an individual, noting that “[t]he First Amendment is not the Tax Code.”138
Proportionality-based balancing also already occurs in First Amendment jurisprudence to the more fundamental extent that different types of speech are protected to different degrees. The proscription of libel or obscenity, for example, is appropriate because free speech protection “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,”139 rather than to “protect every utterance” that strayed from these civic engagement purposes.140 Indeed, Chaplinsky v. New Hampshire141 explicitly applied these values in a balancing context to so-called “‘fighting’ words,” stating that “such utterances are no essential part of any exposition of ideas, and are of such slight social value . . . that any benefit that may be derived from them is clearly outweighed.”142 Consequently, adopting something like Greene’s framework may not be such a radical departure from First Amendment jurisprudence, as the Court already engages in proportionality analysis.
3. Theoretical and Philosophical Justifications. — Proportionality best serves the civic republican ends that underlie First Amendment rights of speech, and by extension, association, because it is “designed to discipline the process of rights adjudication on the assumption that rights are both important and, in a democratic society, limitable.”143 Civic republicanism is a major theoretical justification for the First Amendment144 and holds that the First Amendment should focus on creating conditions ideal for people to participate in governance and democratic discourse.145 The civic republican theory views public discussion as a political duty.146 The “final end of the state [is] to make men free to develop their faculties,”147 which occurs through political deliberation and the exercise of governing.
This theory and its relation to the First Amendment originate from Alexander Meiklejohn. Evoking the image of a town hall, Meiklejohn explains that the “welfare of the community requires that those who decide issues shall understand them.”148 “[T]he public must have access to the greatest possible breadth and quantity of information in order to facilitate self-government.”149
However, in the context of participation in the modern polity, the speech of unpopular movements or opinions risks being drowned out by louder voices or by hostile forces when those associations cannot remain private. In some instances, fear of facing economic or physical retaliation for voicing an unpopular opinion may chill speakers from speaking altogether.150 This is bad for democracy more broadly because it stifles new, unpopular, or radical ideas — ideas that are necessary to help refine and distill views about government so that “wise decisions” can be made in participatory forums.151 Under a civic republican theory of association,152 the inclusion of those views outside of the status quo helps sharpen and inform the ideas on how the polity should operate; this is made possible when groups can come together to develop those ideas.153 That pursuit is materially harmed when not all ideas can be freely developed or advocated for.
The proportionality approach does a better job of capturing the civic republican interests necessary for creating good conditions for political participation because it can accommodate more democratic process interests beyond the confused informational interest already found to be compelling by the courts.154 A framework that aims to further civic republican ends acknowledges that effective self-governance does not just require combatting direct corruption. Though combatting undue influence is not a legitimate state interest,155 proportionality’s more holistic weighing could still bring in other permissible process interests like increasing the engagement of minority communities in the democratic process, which on its own would not be sufficiently compelling to carry a regulation.156
On the other end, current disclosure jurisprudence damages civic republican ends. The Court’s “political engineering” has discouraged individuals from participating in governance; “political debate contributes far less to the resolution of important issues than our democratic culture requires.”157 Consequently, disclosure laws that are carefully delineated to address process interests and strike a balance would be more favorably treated under a proportionality standard that can consider and weigh each of them (and their effects on civic republicanism) in turn.
A major counterargument to this proposal is that a proportionality approach is simply not how the Fourteenth and First Amendments work. That is, strict scrutiny is employed specifically because currently, constitutional jurisprudence in the United States is not proportional — and as a result this approach does not solve the problem. However, “doctrinal structures that approximate proportionality are a recurrent feature of our constitutional practice, dating back more than a century.”158 Proportionality is used under other names,159 and it is simplistic to think that it is never employed in current jurisprudence. As Justice Breyer explained most recently, even when the Court “consider[s] a regulation that is . . . subject to ‘strict scrutiny,’ [it] sometimes find[s] the regulation to be constitutional after weighing the competing interests involved.”160 Indeed, scholars have traced something akin to “proto-proportionality” to the early Commerce Clause cases, when the Court balanced the legitimacy of a state purpose under the Commerce Clause against the reasonableness of the burden.161 Empirical analyses of strict scrutiny also suggest that courts have used threshold inquiries and other tools to adjust strict scrutiny such that it is a “context-sensitive tool” the way that proportionality analysis might function.162
Second, more foundationally, the circumstances that trigger the nonproportional or “rights-as-trumps” frameworks are “not themselves governed by traditional doctrinal machinery or constitutional interpretation.”163 Determinations like that required by the Master Printers test employed by two circuits, asking if there has been a burden on associational rights, “can trigger nondiscretionary, categorical rules, but the determinations themselves will almost inevitably involve the kinds of empirical questions that are more suited to proportionality review.”164 These additional questions, like requiring a threshold finding that the disclosure risks a chilling through threats or harassment, actually add considerations to the strict scrutiny framework. Such glosses may have maintained the appearance of strict scrutiny,165 but in practice their application creates a framework more akin to proportionality.
Another counterargument may be that as-applied suits already provide an adequate solution to the dark-money problem because if the lower Buckley standard is used universally to tackle transparency challenges, fragile organizations fearing risk of threats and reprisals could simply challenge the law as applied to them.166 Though some smaller organizations and movements might have the resources to bring such a lawsuit, those that are the smallest in number or financial resources will still be subject to disclosure.167 In this way, the smallest of these associations, which are arguably most in need of protection so their ideas survive in the civic republican space against chilling, will have no recourse. Consequently, as-applied suits cannot truly address the broader concern of chilling or harassment for the most vulnerable movements.
CONCLUSION
The exacting scrutiny standard required in nonprofit freedom of association cases has become muddled in recent years from resembling something close to strict scrutiny to a much lower standard. This has been exacerbated most recently by decisions in the Second and Ninth Circuits that apply Buckley’s standard for election disclosure to cases falling squarely in the Patterson framework. Rather than attempt to return to Patterson’s approach or reconcile the two frameworks in the context of dark money, the most effective way forward is to embrace the use of proportionality in freedom of association jurisprudence.