So today is the last day of October Term 2020 for the US Supreme Court. There were thousands of words issued today. On the twin principles that (a) "a picture is worth a thousand words" and (b) "a fast photo-editing job is easy," I offer the following summary of Americans for Prosperity Fdn. v. Bonta, No. [20]19–251 (01 Jul 2021):
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Thanks, guys. Now I can exercise my free speech rights as guaranteed by Buckley anonymously; maybe even QAnonymously. Nobody will be able to accuse me of a conflict of interest, since without knowing who I am they can't identify my interests. |
This is a doctrinal, controversy-avoidance response to a difficult problem: Speech in other than words. Buckley held that the act of expenditure in support of a political campaign — whether for office or directly concerning legislation — is a speech act protected under the First Amendment. In one sense, this is a necessary protection against unpopular opinion; flag burning is an obvious example. In another sense, though, it denies judicial competence to distinguish between "speech," which is a First Amendment right, and "corruption," which… is not. Or, worse yet, to untangle matters for conduct/speech that is both.
I would remind the judiciary of two basic principles of leadership and governance that it all too often forgets.
- The decision not to decide an issue is itself a decision that must be justified both in principle and on the facts presented — even when extremely difficult, even when those facts are incomplete or contested.
- The ultimate duty of any government official, at any level, is to make decisions. Anything less than that is dereliction of duty and unfaithful to the oath of office. The obvious corollary is that if one does not feel competent to make a decision that one must make, obtain (or at least refer to) that competence.
The fundamental blind spot of the various campaign-finance cases is that they uniformly pretend that only overt bribery is defined as "corruption." And to that assertion, I can respond only as did Justice Stewart:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). I would argue that political corruption is no less obscene… presuming, as the Court and general run of American jurisprudence do, that "obscenity" is outside the scope of the First Amendment. But that "further define[s]" matters indeed.
The irony that what is at issue in Bonta is not truly "anonymity" at all, but "administratively convenient access to information already required to be reported elsewhere," has some disturbing implications related to the tradition of (live) Presidents providing their tax returns for public examination (until the Orange One, anyway). Traversing that swamp is for another time.