Continuing its remote, hearings-by-telephone, the Supreme Court on Monday will be focusing on the privacy of people who support advocacy groups, and, separately, on who must pay to clean up toxic waste dumps. The audio portions (but not the video) of the hearings will be broadcast on cspan.org/supremecourt

First case, starting at 10 a.m.:

Americans for Prosperity v. Rodriguez and
Thomas More Law Center v. Rodriguez

Background: Throughout its modern history, the Supreme Court has expended much time and energy trying to sort out how much protection the Constitution gives to people who give money or support to controversial advocacy groups but want to do so privately, to avoid being harassed or even threatened. That effort involves what the Court calls “freedom of association.” Those words are not in the First Amendment, but the phrase is a kind of summary of some of the rights that the Amendment does protect explicitly: free speech, the right to assemble, and the right to take one’s grievances to the government.

Probably the highlight of that history is a Supreme Court decision that grew out of the state of Alabama’s reaction in the 1950s to the heroism of Rosa Parks, the activism of the Rev. Martin Luther King, and the Montgomery bus boycott. Determined to shut down the National Association for the Advancement of Colored People in Alabama, state officials began by demanding a list of all of its members. The Court’s 1958 decision in NAACP v. Alabama blocked that demand, in a unanimous decision expressed in soaring phrases about the right of free association.

That ruling has since been understood as imposing the strictest constitutional test for judging actions by officials threatening that right. It is called the “strict scrutiny” test: to meet it, government action must be designed to serve a compelling public policy, must actually work to carry out that policy, and must be done in the narrowest possible way to avoid impairing the right.

The Court, however, has also created a significant exception to that: if an advocacy organization is involved in political campaigning or giving money to campaigns, the government generally can require disclosure of the identity of the people who contribute. That is designed to let the voting public know who is sponsoring efforts to persuade them at election time. Courts will not automatically approve such disclosure, but the government has a considerably easier time in proving its need for the disclosure to promote transparency in politics. This test usually is called “exacting scrutiny,” but it is not as rigorous as that might suggest. It originated for election-related activity in the Supreme Court’s 1976 decision in Buckley v. Valeo, a case about campaign finance rules.

On Monday, the Court will first hear two combined cases involving attempts by two controversial advocacy groups to shield the privacy of their donor lists from disclosure demands by the state of California. One is a political branch of the organization headed by the wealthy Koch brothers – the Americans for Prosperity Foundation. It promotes free-market policies, opposing government regulation of corporate activity. The other is the Thomas More Law Center, one of the most prominent groups promoting traditional or conservative religious causes, such as opposing gay marriage and abortion.

Because both are tax-exempt, non-profit charities, they must disclose their donors to the Internal Revenue Service, but as charities they cannot participate directly in political campaign activity by supporting candidates or political parties. The identity of their donors is rigorously protected by the IRS, under federal law carrying heavy fines for disclosure.

California, however, has its own state law that requires charities that raise money in the state to file reports with the state, and that includes the list of donors they have supplied to the IRS. The two organizations went to court to challenge that demand, arguing that the state does not need that information, almost never uses it to enforce its law on charity fund-raising, does not limit the demand to targeted charities but instead makes a blanket demand on all, and has often allowed the donor information to be leaked publicly or to appear on its open website. Both groups have said that their members have been harassed, have been subjected to retaliation by employers, and some even have faced death threats and other abuses on the telephone or on social media.

In their lawsuits, each asked that the California system meet the constitutional test for non-election organizations, derived from the 1958 decision in the NAACP case. A federal appeals court refused, concluding that the First Amendment has only one test for disclosure of donor information, and that is the one applied to groups taking part in election advocacy – “exacting scrutiny.” Other federal appeals courts disagree, imposing the most rigorous test (“strict scrutiny”) on donor disclosure requirements.

The legal question before the Court: Does the First Amendment right of free association require that any government order forcing disclosure of the identity of donors to controversial advocacy groups meet the strictest test of constitutionality?

Significance: Over the years of its review of the donor privacy issue, the Court has had difficulty drawing distinctions between different kinds of advocacy organizations. There does not appear to be a sharp dividing line between those entitled to full privacy for identities of their members or donors, and those entitled to something less than that. In short, transparency sometimes is served as a primary cultural value, other times anonymity is given significant respect.

While the concept of “strict scrutiny” is well defined as a constitutional test in First Amendment cases, the same cannot be said of the less protective test of “exacting scrutiny.” That has been a somewhat meandering concept, understood only as it was applied to specific fact scenarios.

The Court has agreed to hear these case in its latest attempt to provide more clarity on the underlying privacy issue.

Second case Monday, starting after 11 a.m:

Guam v. United States

This is a highly technical case, but it is also one that raises fundamental questions about fairness when two federal laws work at cross purposes. It involves the U.S. territory of Guam, which has been trying for years to get the federal government to pay, or help pay, the costs of cleaning up a very large toxic waste dump that the U.S. Navy created on the island years ago.

The legal side of the case, which will be discussed only briefly here, turns on the interaction of the federal “Superfund” law (formally, the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA), passed by Congress in 1980 to compel those who create toxic waste dumps to clean them up, and the federal Clean Water Act, enacted in its present form in 1972 to provide for regulation of pollution in the waters of the nation.

Guam has been suing the federal government under the Superfund law, to try to force the Navy to help pay for cleanup of the so-called “Ordot Dump.” That site was used for dumping such extremely hazardous wastes as “Agent Orange” and DDT. As it told the Court in its appeal, Guam “is left on the hook for all of the costs – more than $160 million – of cleaning up a waste site that the United States Navy itself created and then used to dump toxic wastes for decades going back to World War II.” Because its case has been blocked, by a three-year time limit that it did not previously know would apply to it, Guam contended that “the United State gets off scot free.”

The issue before the Court is basically whether Guam should be allowed to proceed with its lawsuit under the Superfund law, and not have it blocked by the three-year time limit that applies to cases filed under the Clean Water Act, which was not the law that Guam relied upon when filing its lawsuit for help with the cleanup costs.

Monday’s hearing will focus on that tangled legal situation and less on the financial burden facing Guam’s 170,000 residents, still largely dependent on a federal government in Washington, more than 9,000 miles away. It has only a non-voting delegate to represent it in the U.S. House of Representatives, and its residents, though U.S. citizens, have no vote in presidential elections. While it has had self-government since 1950, the U.S. military remains a dominant presence, with three bases occupying one-fourth of the island.