A Brief Retrospective on Donor Disclosure

Helen Knowles-Gardner has written an interesting retrospective on donor disclosure in this week’s Time Magazine.  The piece contains some interesting historical tidbits and is worth the 15 minutes it takes to read.  For example, the oral arguments in NAACP vs. Alabama Ex Rel Patterson lasted more than two and a half hours over two days 66 years ago this week.  It’s a good read by a staunch First Amendment advocate who applies the lessons of the famous case to contemporary efforts to force donor disclosure.  By the way, you can listen to oral arguments on both days here.  Here is an excerpt from Time:

Today, this 1958 ruling remains highly relevant as Congress and state legislators across the country debate campaign finance reforms that include compelled disclosure of donors. The fundamental question at issue then and now is: can the government compel nonprofits to disclose the personal information of their members and donors? In NAACP v. Alabama ex rel. Patterson, the court shed light on this complex question. The justices unanimously decided that the First Amendment right to assembly protected the NAACP from the demands of Alabama’s segregationist attorney general, John M. Patterson, who wanted the organization to turn over its membership lists.

Although subsequent rulings have limited the scope of the Patterson ruling, its core statement about associational freedom remains intact. This week marks the 66th anniversary of oral arguments in the case, and as members of Congress and state legislators across the nation continue to frequently debate this hot-button topic, they would do well to remember the 1958 precedent because it remains the definitive judicial statement on this aspect of the First Amendment freedoms.

. . .

One of Chief Justice Earl Warren’s law clerks, Jon O. Newman (who later became a federal judge), astutely observed in a private memo that Patterson “is a most bizarre case…it involves a series of maneuvers by the state of Alabama…maneuvers…so carefully carried out within the framework of traditional legal practices that any judicial effort to undo the damage runs the real risk of encroaching upon legitimate state activity.”

He was right: Alabama ultimately spent eight years tying the NAACP up in legal procedural knots. The state wanted the federal government to stay out of its efforts to suppress the NAACP, and its procedural maneuvering was designed to achieve that goal.

darryll k. jones