Sunlight on Campaign Finance: Supreme Court Should Protect The Public’s Right To Know


The Sunlight Foundation filed a friend of the court brief before the U.S. Supreme Court on Friday in a landmark campaign finance case that threatens public disclosure of election-related contributions and expenditures. The case, Citizens United v. Federal Election Commission, is scheduled for argument on September 9, 2009. One issue at stake is the public’s right to know who is funding political ads, and how much money they have spent.

The case arose in the context of whether the FEC could regulate a 90-minute, video-on-demand film, “Hillary: The Movie,” which criticized then-presidential candidate Hillary Clinton. The FEC had held that the film is a 90-minute paid political advertisement, and could be regulated under the Bipartsian Campaign Reform Act (BCRA). That decision has been appealed up to the Supreme Court.

As part of its review of the FEC’s decision, the Supreme Court is examining the constitutionality of BCRA’s disclosure requirements – that is, identifying who paid for the ad. It is also exploring whether to overrule its 1990 decision in Austin v. Michigan Chamber of Commerce and its 2003 decision in McConnell v. Federal Election Commission. Although those cases are better known for upholding limits on corporate spending, the rulings also touch upon the constitutionality of laws that require disclosure of who made election-related expenditures.

The Sunlight Foundation is concerned that overturning Austin and McConnell will have a negative effect on government transparency. Even were the Court to strike down regulations that ban the expenditure of corporate treasury (i.e., non-PAC) funds on producing “Hillary: The Movie,” we believe that the public has the right to know who is funding the movie, and how much they have spent doing so. In addition, striking down Austin and McConnell would likely generate uncertainty about the constitutionality of many other laws that require disclosure and reporting of campaign contributions and expenditures. There should be no doubt that our transparency laws are on solid constitutional footing.

Our amicus brief is focused solely on the issues of disclosure of information and government transparency. It was written by former New Jersey Supreme Court Justice Gary Stein. The National Institute on Money in State Politics and The Center For Civic Responsibility have joined us as signatories.

To strengthen the relationship between citizens and their elected officials, foster public trust in government, and remove corruption and the appearance of corruption, the Supreme Court must reaffirm that election disclosure requirements are constitutional and apply to the entire range of electioneering communications, regardless of whether they are express advocacy or issue advertisements. The public has a right – and the need – to know.

The brief is available here. More on Citizens United is available here.

Citizens United Amicus Brief Final