many inconsistencies. So five justices took a strong stance on the First Amendment, restoring the rights of many groups to take part in elections. At the same time, all the justices knew that the decision would be met with a firestorm, and most wanted political cover. Their “fallback”—to use Olson’s word—was to hail McCain-Feingold’s disclosure rules. Kennedy even argued that those disclosure provisions were what had allowed the Court to more fully embrace free speech. “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.” Eight of the justices would ultimately join in the part of the decision upholding disclosure.
Olson still thinks it was the correct call at the time, and he’s right. “It was a tactical thing; we didn’t put a lot of energy or enthusiasm into the disclosure question,” he says. “And remember, this was a moment at which a lot of people on the conservative side of the spectrum embraced that view. Their argument to the left was, ‘Why are you complaining about more free speech? If we just have disclosure, everything will be open, and that is the remedy.’”
But subsequent events changed most conservatives’ view on disclosure, including his own. “It is something that maybe we’d do differently today, given all that has come since. It wasn’t too important at the time to the folks at Citizens United, although we all have become a lot more focused on it over time. We are all now realizing that this can be a very potent weapon to intimidate people or discourage them from participating in democracy. It’s a huge threat.”
The one brave soul on the Court to dissent would be—once again—Clarence Thomas. His scathing takedown of the law’s disclosure regime, and his worries over its ramifications, today read like an eerie road map of what ultimately would come.
“The disclosure, disclaimer, and reporting requirements in [McCain-Feingold] are also unconstitutional,” Thomas bluntly began, pointing out that the Court had backed the idea of anonymous speech as recently as the McIntyre case. He chided his colleagues for ignoring briefs filed as part of Citizens United that illustrated how disclosure was already causing donors to be “blacklisted, threatened, or otherwise targeted for retaliation.” Political operatives weren’t just using disclosure to punish citizens for their donations, but were wielding it to close off speech before it even happened. As Thomas wrote, the “success of such intimidation tactics has apparently spawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First Amendment rights.” He made special note of the Matzzie letter warning off donors in the 2008 election.
Thomas then predicted another problem. It was bad enough, he noted, that citizens were using disclosure to threaten and retaliate against each other. But his colleagues needed to consider that transparency might ultimately prove a weapon in the hands of a more menacing power—government. In what is surely the first and last time I will ever be mentioned in a Supreme Court decision, Thomas referenced a column I’d written about West Virginia attorney general Darrell McGraw. McGraw had terrorized his state’s business community, filing questionable lawsuits against them. The AG doled out the work for these cases to his trial bar buddies, who in return funneled huge amounts of their state-provided contingency fees to McGraw’s reelection. An upstart Republican lawyer named Dan Greear in 2008 boldly chose to challenge the fourteen-year incumbent Democrat for his seat, but quickly ran up against a fund-raising problem. Businesses feared donating to Greear, because McGraw would know about it. As I quoted
Olson still thinks it was the correct call at the time, and he’s right. “It was a tactical thing; we didn’t put a lot of energy or enthusiasm into the disclosure question,” he says. “And remember, this was a moment at which a lot of people on the conservative side of the spectrum embraced that view. Their argument to the left was, ‘Why are you complaining about more free speech? If we just have disclosure, everything will be open, and that is the remedy.’”
But subsequent events changed most conservatives’ view on disclosure, including his own. “It is something that maybe we’d do differently today, given all that has come since. It wasn’t too important at the time to the folks at Citizens United, although we all have become a lot more focused on it over time. We are all now realizing that this can be a very potent weapon to intimidate people or discourage them from participating in democracy. It’s a huge threat.”
The one brave soul on the Court to dissent would be—once again—Clarence Thomas. His scathing takedown of the law’s disclosure regime, and his worries over its ramifications, today read like an eerie road map of what ultimately would come.
“The disclosure, disclaimer, and reporting requirements in [McCain-Feingold] are also unconstitutional,” Thomas bluntly began, pointing out that the Court had backed the idea of anonymous speech as recently as the McIntyre case. He chided his colleagues for ignoring briefs filed as part of Citizens United that illustrated how disclosure was already causing donors to be “blacklisted, threatened, or otherwise targeted for retaliation.” Political operatives weren’t just using disclosure to punish citizens for their donations, but were wielding it to close off speech before it even happened. As Thomas wrote, the “success of such intimidation tactics has apparently spawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First Amendment rights.” He made special note of the Matzzie letter warning off donors in the 2008 election.
Thomas then predicted another problem. It was bad enough, he noted, that citizens were using disclosure to threaten and retaliate against each other. But his colleagues needed to consider that transparency might ultimately prove a weapon in the hands of a more menacing power—government. In what is surely the first and last time I will ever be mentioned in a Supreme Court decision, Thomas referenced a column I’d written about West Virginia attorney general Darrell McGraw. McGraw had terrorized his state’s business community, filing questionable lawsuits against them. The AG doled out the work for these cases to his trial bar buddies, who in return funneled huge amounts of their state-provided contingency fees to McGraw’s reelection. An upstart Republican lawyer named Dan Greear in 2008 boldly chose to challenge the fourteen-year incumbent Democrat for his seat, but quickly ran up against a fund-raising problem. Businesses feared donating to Greear, because McGraw would know about it. As I quoted
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