Americans for Prosperity Foundation v. Bonta: The Dire Consequences of Attacking a Major Solution to Dark Money in Politics

Lindsay Hemminger

Unlimited spending by the super-wealthy dominates the political arena yet operates in the shadows. The last remaining tool used to bring this spending to light is at risk of total extinction. The result is a significant threat to the integrity of United States’ democracy. In Americans for Prosperity Foundation v. Bonta, the United States Supreme Court addressed the constitutionality of a California disclosure requirement compelling tax-exempt charities to disclose to the Attorney General’s Office Internal Revenue Service (“IRS”) forms identifying their major donors. The Court determined that the law was unduly burdensome on First Amendment associational rights, despite the fact that the donor information was kept confidential from the public and any identified harms were minimal and wholly unrelated to the disclosure regime. Therefore, the Court incorrectly held that the disclosure requirement was facially unconstitutional. In doing so, the Court rejected its own precedent and inappropriately applied an exacting scrutiny standard that required the disclosure regime be narrowly tailored to the government interest it promotes. Additionally, the Court turned its back on its own proclamations about the importance of preserving disclosure laws in the absence of significant First Amendment burdens, and it disregarded the significant protections that disclosure requirements provide in a multitude of contexts. By viewing this case in a vacuum, the Court ignored the greater consequences that its decision will have on disclosure laws for organizations that are permitted to engage in political activity. Without these laws, the transparency of large amounts of political spending is severely limited, worsening the decline of public trust in the electoral process. This Note supports the dissent’s call for a return to precedent when applying exacting scrutiny to disclosure requirements. This Note aims to expand on the dissenters’ concerns by emphasizing the important role that disclosure laws play in maintaining transparency of big spending in politics. It argues that the uber-wealthy’s financial influence on American politics is one of the largest threats to democracy, though it is rarely discussed in the media. This Note recommends that the Court return to an exacting scrutiny standard that does not require narrow tailoring, not simply to protect disclosure laws that aim to police charitable fraud, but also to provide states the ability to combat the improper influences of dark money in their elections.