On Monday the Supreme Court refused to hear the appeal of a Virginia anti-choice organization seeking exemption from campaign finance disclosure regulations, handing anti-choice and anti-transparency activist James Bopp Jr. a significant defeat.
The Real Truth About Abortion, Inc., an organization formerly called The Real Truth About Obama claims to do “issue advocacy” that amounts to constitutionally-protected free speech. Because, the group claimed, it did not expressly advocate the election or defeat of a candidate, it is not a political action committee and therefore exempt from Federal Election Commission regulations that it register as a PAC and disclose donors.
The Court declined review without comment, which will mean the appellate court decision that ruled the group was a Super PAC and therefore must register and disclose donors will stand. The group had challenged the disclosure rules generally, arguing they are unconstitutional. The suit specifically challenged the “subpart (b)” definition of “expressly advocating” (11 C.F.R. § 100.22(b)), as well as the FEC’s methodology for determining when a group has campaign activity as its “major purpose,” an important step in the larger determination of political committee status. Bopp argued the FEC’s multi-part test to assess whether a group’s “major purpose” is to engage in federal campaign activity, qualifying it as a PAC, was too vague and chilled more political speech than necessary.
But in 2011 a federal judge rejected the challenge, and in June 2012 a unanimous three-judge panel of the U.S. 4th Circuit Court of Appeals affirmed the lower court. The 4th Circuit opinion gives a strong endorsement to the commission’s methods calling them “a sensible approach to determining whether an organization qualifies for PAC status,” and more importantly “consistent with Supreme Court precedent” that “does not unlawfully deter speech.” Despite that rebuke, Bopp and The Truth About Abortion appealed anyway.
The case is one of several challenging the disclosure and reporting requirements for political groups in the wake of Citizens United v. Federal Election Commission, a 2010 Supreme Court case that removed limits on what companies and unions can spend to support or oppose political candidates. Conservatives groups who oppose election transparency laws generally have hoped to make more inroads in the wake of the Citizens United decision but Monday’s result blocks, for now, those efforts and forces some sunshine into the dark world of Super-PAC electioneering.
For women’s rights advocates, the Court’s decision to deny review and allow the 4th Circuit decision stand should be encouraging. It is no coincidence that an explosion of anti-choice, anti-woman legislation really took off post-Citizens United given James Bopp Jr.’s role in advancing campaign finance secrecy on behalf of anti-choice organizations. Many of these groups thrive on misinformation campaigns financed by secret donors and shadow groups that take advantage of enormous loopholes in campaign finance disclosure laws and lax regulatory oversight to carry out their mission. Thanks to Monday’s denial, those campaigns just became harder to conduct.