March 2, 2021

Whitehouse Cheers Solicitor General’s Reversal in SCOTUS Dark Money Case

Washington, DC – Today, Senator Sheldon Whitehouse (D-RI), a senior member of the Senate Judiciary Committee, applauded the brief filed by the Acting U.S. Solicitor General in Americans for Prosperity Foundation (AFPF) v. Becerra, a First Amendment challenge before the Supreme Court:

“I’m pleased the Solicitor General changed its position in this case. The Trump Justice Department predictably sided with the right-wing donors and their armada of anonymously funded amicus groups, who want to use this case to create constitutional protection for dark money and further rig American democracy in their favor. The Solicitor General has called on the Court to refrain from setting a precedent that could pave the way for serious, lasting damage to our politics. The voice of the U.S. government matters a great deal in cases like this one. I hope the Court listens carefully.”

In February, Whitehouse led his Judiciary Committee colleagues in calling on the Biden administration to reverse the Department of Justice’s position in the case. The senators warned the Biden Justice Department that the case could lead Trump-appointed right-wing justices to grant constitutional protection to anonymous “dark money” spending in elections and on disinformation campaigns – like the campaign that fomented the January 6 attack on the U.S. Capitol.

The Trump administration backed plaintiff AFPF—a part of the Koch network of influence front groups—in its case to overturn a California rule requiring limited, confidential disclosure by nonprofit organizations of high-dollar donors to aid in the state’s tax administration. The question before the Court is whether this requirement violates the First Amendment’s freedom of association.

AFPF and a raft of over 60 anonymously funded amicus curiae – many linked to the Koch network and other major right-wing dark-money funders – argue the California rule threatens protections afforded by the Supreme Court’s seminal Civil Rights Era decision in NAACP v. Alabama. In that decision, the Court deemed anonymity protections for civil rights activists in 1958 Alabama to be a matter of life or death. In their February letter, the senators pointed to the obvious differences between limited, confidential disclosure of donors for tax administration purposes and the potential for violent retaliation in the Jim Crow South.

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