California is likely to lose. It collects donor information for law enforcement purposes but lets the information leak. Even Liberal Judges Kagan and Sotomayor appear to be concerned about this, and will likely vote that the AFP wins the challenge “as is,” or will vote to cancel the case to reconsider the challenge. formula is applied.
But the question of where the Court’s conservative majority could go in this case is the one that matters. The court may impose strict supervision in this case and face the law (applies to everyone, not just the plaintiff), which will not only result in California’s loss, but also raises the question of the constitutionality of all campaign financial disclosure laws.
That result seems unlikely, as I believe that only Justice Thomas (and perhaps Alito and Gorsuch) will be willing to go that far. But that’s mainly about the looks. It is very likely that other conservatives (Roberts, Barrett and Kavanaugh) will say that they are applying “precise surveillance” at the medium level and defeating the law. They can also pull the same stunt Roberts pull at McCutcheon, redefine monitoring so that it looks like much stricter surveillance. That would have resulted in many of the public campaign finance laws being repealed by the Court but without drama, United citizenship-the type of blockbuster holding. That’s Roberts’s style, and we can see it here.
Conservatives are drawn with just one stroke, but that’s wrong. Judges Scalia and Kennedy are loyal conservatives on important matters, but understand the public value of disclosing information in preventing corruption, providing valuable information to voters and help enforce other laws such as prohibiting foreign contributions in elections. They know that people who spend large sums of money in elections do not face a major risk of harassment (and enjoy a campaign disclaimer exemption if they can), and that this is for the sake of trying. avoid liability for influencing the political process. A system that allows unlimited spending without revealing does not represent “The House of Courage,” as Justice Scalia said.
I look forward to a decision by the end of June.