Lone vote vs. campaign-ad disclosure: Thomas

Saturday, January 23, 2010

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Although the Supreme Court ruled 5-4 in Citizens United v. FEC Jan. 21 to invalidate federal regulations limiting corporate spending in federal campaigns, eight justices did uphold disclaimer and disclosure requirements under the 2002 Bipartisan Campaign Reform Act.

The lone voice of dissent in that part of the ruling was none other than Justice Clarence Thomas — who long has been the Court's most strident opponent, on First Amendment grounds, of campaign-finance laws. To Clarence Thomas, restrictions on political campaign spending and contributions represent direct infringements on pure political speech.

Under federal law, political TV ads funded by corporations must include a disclaimer displayed in a “clearly reasonable manner.” Those who spend more than a certain amount on such “electioneering communications,” as the law calls them, must file disclosure statements with the Federal Election Commission.

In his majority opinion in Citizens United, Justice Anthony Kennedy emphasized that disclosures and disclaimers are less onerous and rigorous than “more comprehensive regulations on speech,” including outright bans. Kennedy also rejected the argument that disclosure requirements violate the First Amendment in part because they expose donors to retaliation.

Thomas, on the other hand, took a much different approach. He said the Court’s “constitutional analysis does not go far enough” and that the disclaimer/disclosure requirements violate the First Amendment right to engage in anonymous speech. Thomas cited the example of alleged harassment of those who supported Proposition 8, an amendment to the California Constitution to define marriage as between a man and a woman.

“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection,” Thomas concluded.

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