For Our Freedom Amendment
When it comes to “dark money,” the main issue revolves around disclosure of the money’s true sources. At present, Supreme Court precedent allows state and federal legislatures to enact disclosure requirements that may address some of the concerns related to dark money. However, there is a concerted effort to narrow, and eventually undo, that precedent. Just last year, the Supreme Court decided a case (Americans for Prosperity Foundation v. Bonta) that will make it harder for legislatures to require disclosure. Although that case was not directly about campaign finance, the legal principles at issue — including First Amendment questions about the appropriate “level of scrutiny” for disclosure requirements — are the same.
The For Our Freedom Amendment makes it clear that reasonable campaign finance regulations — including disclosure requirements — are constitutional. Although the text of the proposed amendment does not specifically mention “disclosure,” such requirements are encompassed by the broader notion of “regulating.” (Section 2 provides: “Nothing in this Constitution shall be construed to forbid . . . reasonabl[e] regulati[on] [of] contributions and spending in campaigns, elections, or ballot measures.”). The amendment also identifies four compelling sovereign interests that could be used to justify disclosure requirements and other campaign finance regulations. These “compelling sovereign interests” are broader in scope than the types of “important governmental interests” that have so far been recognized by the Supreme Court to justify campaign finance regulations.