Although the U.S. Supreme Court did not muster four justices to grant certiorari in the case of Delaware Strong Families v. Denn, 579 U.S. ____ (2016), Justice Clarence Thomas filed a dissent, which reiterated concerns that he had expressed in earlier cases about guarding anonymous donors against harassment or threats of reprisals.

The Delaware Election Disclosures Act required disclosure of individuals who spent more than $500 on third-party advertisements for a candidate within 60 days of an election.

The law included those who had contributed more than $100 to Delaware Strong Families, a tax-exempt non-profit organization that produced a General Election Values Voter Guide, even if they did not specifically designate funds for the voter’s guide.

The district court enjoined the law because it considered the burdens it imposed to be “too tenuous,” but the 3rd U.S. Circuit Court Court of Appeals reversed the decision, believing the requirements to be “sufficiently tailored to Delaware’s asserted interest in an ‘informed electorate.’ ”

Required disclosure termed too broad

Acknowledging that the Supreme Court had considered disclosure requirement to be “the least restrictive means of curbing the evils of campaign ignorance and corruption,” Thomas argued that the disclosures required in this case were far broader than those of the past.

Citing his dissent in Doe v. Reed (2010), Thomas further thought that it was time to examine whether this interest was sufficient to justify disclosure of otherwise anonymous donor rolls, with its impact on First Amendment rights of speech and association.

Thomas believed that such claims required “exacting scrutiny,” which would require the disclosure requirement to be “substantially related” to an “important governmental interest.”

Although the 3rd Circuit compared the Delaware law to earlier federal disclosure requirements, the Delaware voters’ guide did not advocate on behalf of particular candidates. Indeed, had it done so, it could have lost its tax-exempt status.

Acknowledging that the state’s interest in an informed electorate might justify “a more tailored regime,” Thomas doubted that it could justify the burdens on the First Amendment that he thought this disclosure imposes. He thought that the Court’s failure to review the case suggested that it was willing to give such laws “no scrutiny at all.”

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