Amicus Brief: No on E v. Chiu

California requires political advertisers to identify themselves and their top three donors in their election advertising, in addition to other disclaimers. San Francisco recently added another campaign speech mandate: the city requires campaigns to name, in their ads, the top two donors to each of the speakers’ top three donors. Accordingly, the city compels political advertisers to start each radio and television advert with, in addition to other sundry disclaimers, up to nine separate donors in their ads (three primary and up to six secondary). The requirement to name donors in an ad applies regardless of whether those secondary donors intended to fund the ad or were even aware of their recipients’ political contributions. These disclaimers consume a great deal of airtime and make short broadcast announcement impracticable.

Because of this onerous requirement, and because one of its major donors would have demanded its money back if named, political committee No on E (regarding a ballot proposition) refrained from advertising in support of a measure on the city’s June 2022 ballot. No on E, its founder and treasurer Todd David, and Ed Lee Dems (the impacted donor) sued in federal court, seeking a temporary restraining order and injunction against the secondary-donor speech mandate as violating their First Amendment speech and associational rights. The district court denied the motions and the Ninth Circuit affirmed. The Manhattan Institute has now joined the Americans for Prosperity Foundation and FIRE on a brief supporting No on E’s petition for Supreme Court review. We argue that Americans for Prosperity Foundation v. Bonta (2021), where the Court turned back a different California donor-disclosure law, controls this case and requires exacting judicial scrutiny that the rule here cannot survive.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

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