Laws requiring the disclosure of donor identity have been the one area of campaign finance that the Supreme Court has left virtually untouched, an approach that stands in marked contrast to cases in which the government has attempted to compel the identification of authors of election-related handbills. In the latter cases, the Court applies strict scrutiny to protect First Amendment interests, but applies only intermediate scrutiny in the former.
This has led to inconsistent results, protecting the lone pamphleteer but not the donor of modest means. It has also created substantial confusion and line-drawing problems in lower courts. Many scholars and courts have noted the tension between these two doctrines and some have suggested ways to distinguish them, but none have identified the rationales motivating the Court. A critical assessment of these rationales suggests that lesser scrutiny applied to disclosure of donations is warranted only above a certain substantive threshold amount.
The existence of substantive (that is, more than de minimis) thresholds in disclosure laws—amounts below which public disclosure is not required—would reconcile a fundamental tension between the two doctrines. This Note argues that courts have a role to play by reviewing challenges to these thresholds, and proposes that they apply the intermediate scrutiny test already articulated for disclosure requirements in order to do so. While lower courts have so far refused to review thresholds with anything more than rationality review, this is based on a misguided interpretation of Supreme Court precedent. In evaluating future challenges, this Note contends that courts should evaluate the cogency of governments’ justifications for their thresholds, rather than fashioning the numerical thresholds themselves.