Thread by @rickhasen

I'll be listening to the Supreme Court's argument in the AFP case, which may have major implications for the constitutionality of campaign finance disclosure laws. Listen here: c-span.org/video/?510032-…

CJ Roberts out of the bat suggests skepticism of moving this analysis to "strict scrutiny." But in McCutcheon case, Roberts affirmed but redefined exacting scrutiny in contributions context to make it closer to strict scrutiny.

The level of scrutiny matters a lot because the stricter the scrutiny, the more likely the courts will strike down the law as an unconstitutional infringement on rights.

Did not expect a Justice Thomas hypothetical to involve a charity that provides dog beds or helps stray puppies. His vote is not in doubt. He thinks disclosure laws almost always violate the Constitution.

Justice Breyer addresses the 800-pound-gorilla in this case. If disclosure is unconstitutional in this case, it will threaten the constitutionality of major campaign finance disclosure rules which prevent corruption and provide voters with key information.

Justice Alito is quite skeptical of California's interests in having donor information given to the state for law enforcement purposes. His vote against California is not in doubt.

Justice Sotomayor says that ruling for AFP would be contrary to the Court's earlier opinion in Doe v. Reed. Like J. Breyer, J. Sotomayor is likely to side with California, or at least reaffirm constitutionality of disclosure rules in campaign context.

Count Justice Kagan with Breyer and Sotomayor in being skeptical of AFP's arguments and would want to reaffirm the constitutionality of disclosure rules in campaign context.

Justice Gorsuch asks a technical question about whether this is more appropriate as a "facial challenge"---to fully strike down the law--or an "as applied one"--to apply only to give relief to those who challenged it and can show a violation. This distinction could matter.

Lawyer for AFP is also trying to argue that "exacting scrutiny" is essentially "strict scrutiny," which would be just as devastating for the constitutionality of campaign disclosure rules.

Justice Gorsuch throws a softball to AFP lawyer, showing him a likely vote against California in some form.

Justice Kavanaugh looking for a way to rule for AFP without calling disclosure to IRS of similar information into constitutional question.

Justice Barrett turns Justice Kagan's hypothetical around, and indicates some skepticism of California's interest in requiring disclosure of this information.

U.S. takes position for a remand to look at an "as applied" challenge----a punt in this case would be a win. It would likely preserve the existing framework for constitutionality of campaign finance laws.

Not even halfway through the argument, it's clear that California will not win this case. But the question is how it would lose. It could lose in a remand that changes little law, or this could be a major decision that threatens campaign finance disclosure requirements nationwide

Justice Kagan is on alert for trick CJ Roberts pulled in McCutcheon: say you are reaffirming "exacting scrutiny" but redefine it as strict so as to call into question the constitutionality of many campaign laws. Wrote about that @Slate after McCutcheon: slate.com/news-and-polit…

Acting Solicitor General Elizabeth Prelogar is so good. She should not be the Acting SG---she deserves the job.

Some of the conservative Justices are looking at the First Amendment "assembly" right as a new way of making it harder for governments to pass workable campaign disclosure laws.

The evidence of "chilling" coming from campaign finance disclosure information is so, so thin. I analyzed that here: papers.ssrn.com/sol3/papers.cf…
Some of the conservative Justices, living in a Fox News bubble, overestimate the risks of harassment.

This has long been a theme of Justices Alito and Thomas, but Justice Gorsuch expressed similar concerns at his confirmation hearing.
I don't know where J. Kavanaugh and Barrett are on this.

Some called on Justice Barrett to recuse in this case, because she benefitted from $1 million of spending in undisclosed money by AFP, petitioner in this case, in support of her nomination.

To a Justice like Alito, the concern about "chilling" is really an argument that people should be able to try to influence politics without accountability. That "does not represent the 'Home of the Brave,'" as Justice Scalia said in Doe v. Reed defending public disclosure.

Justices Sotomayor and Kagan strongly suggest they'd agree that California violated AFP's rights on an "as applied" basis---meaning law unconstitutional as to them, but keep the law standing.

Something not mentioned at argument: the district court judge Manny Real, was a legendary bad judge: do you defer to his factual findings when he did not give California a fair shake at trial?

Some more on the judging of Manny Real: mercurynews.com/2019/08/02/mat…

This piece is by the great @joemmathews, who calls them as he sees them always.

By the end, very clear that Justice Barrett will be siding with AFP.

#ELB: Thoughts on Today’s Oral Argument in the AFP v. Bonta Case in the U.S. Supreme Court: California Will Lose, But the Question is How It Will Lose and What the Case Will Mean for Campaign Finance Disclosure electionlawblog.org/?p=121818