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Democrats are still in shock after the Supreme Court ruling last week that allowed corporations to start spending money on political campaigns. But the same decision also dealt a setback to some conservative activists by upholding laws that require disclosure of political donors.
NPRs Peter Overby reports.
PETER OVERBY: Writing the courts opinion in Citizens United versus the Federal Election Commission, Justice Anthony Kennedy said transparency enables voters to make informed decisions and to weigh different speakers and messages. Tara Malloy is a lawyer at the Campaign Legal Center, which defends campaign finance laws. She says that part of the opinion is a silver lining.
Ms. TARA MALLOY (Lawyer, Campaign Legal Center): If anything, the court seemed to almost herald disclosure.
OVERBY: Most politicians have always seemed to like disclosure. Last week, House Republication leader John Boehner did what GOP leaders in Congress have often done: He quoted a long ago liberal Supreme Court justice Louis Brandeis.
Representative JOHN BOEHNER (Republican, Ohio): I have always believed that sunshine was the best disinfectant.
OVERBY: Even the lawyer who filed the lawsuit for the Citizens United group, James Bopp, says he generally agrees but not completely.
Mr. JAMES BOPP (Lawyer): There is nothing to disinfect when were talking about the average citizen or an advocacy group that is simply speaking out about issues that they are concerned about.
OVERBY: Bopp and other conservative activists are challenging disclosure laws in the same way they contest other campaign finance statutes. Until last week, they seemed to be making headway. Bopp won a milestone case at the Supreme Court in 2007. And then...
Ms. MALLOY: There was a whole rash of challenges filed shortly before the 2008 elections.
OVERBY: Again, Tara Malloy of the Campaign Legal Center. She points to disclosure cases now pending in federal court in North Carolina and in state courts in Ohio and West Virginia. She says the Citizens United decision will help defenders of disclosure requirements. Conservatives make two broad points against disclosure. First, they say donors have a First Amendment right to both political speech and anonymity, especially if the money is small or doesnt go directly to candidates. Paul Lehto disagrees. He's a liberal legal scholar in Michigan.
Mr. PAUL LEHTO (Liberal Legal Scholar): When you enter the public square, I mean, in all different kinds of areas of the law, you waive to a large, if not, total extent any reasonable expectation of privacy.
OVERBY: The second argument against disclosure is more concrete. Some donors say they face retaliation from opponents who track them down through disclosure filings. James Bopp says nothing in the Citizens United opinion weakens that argument.
Mr. BOPP: One thing that we are paying attention to that the court said is that you need some specific allegations that theres a potential for harassment and intimidation.
OVERBY: And those allegations are central in two cases the Supreme Court addressed this month. It agreed to hear a case from Washington State where voters signed a petition to block gay marriages by ballot initiatives. They dont want their names disclosed. And in California, gay plaintiffs are challenging the states ban on gay marriage. Defenders of the ban say that video from the courtroom could set them up for retaliation from gay marriage advocates. Five justices voted to block videos of the trial. The retaliation argument rests on some established precedents, including a lawsuit brought by the Socialist Workers Party in 1982.
California lawyer William Lacy said hes compared the facts in Socialist Workers with the current cases in California and Washington.
Mr. WILLIAM LACY (Lawyer): And I can tell you that the harassment thats been reported against donors to the ban on the same-sex marriage has been far worse than any of the facts that were put before the Supreme Court in the Socialist Workers exemption.
OVERBY: But heres an important difference. The Washington and California cases are about ideological advocates, and the Supreme Court seems sympathetic. The campaign finance cases involve people who give money. And the court now sounds rather more skeptical, even as it permits unlimited spending by corporations.
Peter Overby, NPR News, Washington.