So to Speak: The Free Speech Podcast

Episode 258 – Donor Disclosure and Campaign Finance at SCOTUS

Host: Nico Perrino (FIRE)
Guests: Brad Smith (Chairman, Institute for Free Speech), Brett Nolan (Senior Attorney, Institute for Free Speech)
Date: November 25, 2025

Episode Overview

In this episode, Nico Perrino returns with a nuanced discussion on two pivotal Supreme Court cases that grapple with donor disclosure and campaign finance laws, examining their implications for free speech. Joined by Brad Smith and Brett Nolan from the Institute for Free Speech, the group delves into the cases of First Choice Women’s Resource Centers v. Platkin and National Republican Senatorial Committee v. FEC, contextualizes the legal frameworks at play, and thoughtfully debates the broader cultural and constitutional stakes these issues carry.

Key Discussion Points & Insights

I. The Work of the Institute for Free Speech

• [01:33] Brad Smith introduces the organization:
  • Focuses largely on political speech, especially campaign finance (regulating candidates’ ability to spend money to spread their message).
  • Also addresses controversial “false statements” laws and political ad restrictions, and occasionally works in campus free speech.
  • Emphasizes that democracy requires “vigorous debate," which means guarding against government-imposed limitations on election-related speech.

II. First Choice Women’s Resource Centers v. Platkin — Donor Disclosure Case

a. Case Background

• [05:35] Brett Nolan explains:
  • Crisis pregnancy centers (often religiously oriented, anti-abortion organizations) have become targets for controversial regulation.
  • New Jersey’s Attorney General issued a subpoena (or, as debated, a request) for the center’s donor list and other internal documents, raising serious First Amendment concerns regarding the right of private association.

b. Why Donor Privacy Matters

• [07:47] Brett Nolan references the NAACP v. Alabama case (1950s):
  • Disclosure of donor lists can expose supporters to harassment, threats, or violence, as it did during the civil rights era.
• [12:44] Brad Smith elaborates:
  • “Very often people's willingness to support causes depends on them not facing consequences." (12:44)
  • Donor privacy protects “meek people, too”—not just the outspoken—ensuring broad participation rather than just the loudest voices ([15:14]).

c. Critics’ Perspective – "Dark Money" Concerns

• [16:25] Nico Perrino: Raises the “billionaire controlling politics” worry.
• [16:49] Brad Smith: Dismisses the notion that disclosure would expose hidden individuals, noting the public usually knows the interests and backers behind major efforts.
• [21:24] Brett Nolan: Argues it is “fundamentally cynical" to question the people’s ability to decide for themselves despite large spending, noting that even with lots of money, a message still must persuade.

d. Selective Enforcement & Chilling Effects

• [23:28] Brett Nolan: Points out states may selectively target ideological opponents with investigative demands.
• [25:14] Brad Smith: Distinguishes between:
  • Blanket donor disclosure statutes (e.g., campaign finance laws) and
  • Targeted subpoenas during investigations (like in First Choice), emphasizing that only a “legitimate investigatory need” should justify forced disclosure.

e. Broader Implications & Similar Cases

• [27:27] Nico & Brett: Discuss the Texas AG’s sweeping investigation of Media Matters as a parallel example and how AG powers can be abused across the political spectrum.

f. Federal vs. State Court

• [31:07] Brett Nolan: Explains the preference for federal court in First Amendment cases, given federal judges’ relative insulation from state-level political pressures.

III. National Republican Senatorial Committee v. FEC — Campaign Finance Coordination

a. Case Background

• [32:10] Nico Perrino: Outlines challenge to federal limits on how much a political party can spend in coordination with its own candidates.
• [32:55] Brad Smith:
  • Current law: Parties and individuals have contribution limits; there are no limits on independent expenditures.
  • If a party coordinates too closely with a candidate, its spending counts toward the donation limit.
  • The argument: These limits prevent natural collaboration and actually weaken parties' constructive political roles.

b. The Justification for Coordination Limits

• [36:14] Nico and Brad:
  • Some fear parties will become “bagmen,” allowing individuals to skirt direct contribution limits by funneling money through party spending.
  • Brad rebuts: Empirically, this fear isn’t borne out, and state experiences suggest the system can function without such restrictions.

c. Constitutional Basis for Campaign Finance Law

• [37:41] Brad Smith: Delineates “elections" (properly regulated) versus “campaigns" (speech and debate, not the act of voting):
  • “A campaign is not part of the manner of having an election."
  • Warns: If government can regulate all campaign speech as ‘election manner,’ it “pretty much covers all of American society” ([39:39]).

d. Money as Speech

• [40:20] Brett Nolan: The Supreme Court has recognized that limiting money spent on speech is limiting the speech itself.
• [40:54] Brad Smith: Draws analogies to other rights:
  • “The right to have counsel doesn't mean much. If we said... you can't spend any money on a lawyer...”
  • Points out: Press institutions are exempt from campaign finance rules because we recognize their need to spend money to produce speech ([42:27]).

e. Citizens United Legacy

• [42:43] Discussion of how Citizens United clarified protections for corporate independent expenditures, i.e., documentaries or books about candidates (even if unflattering and timely).

f. The “Appearance of Corruption" Standard

• [46:25] Nico and Brett question the “appearance of corruption” rationale for limiting contributions, which relies more on public suspicion than empirical reality.
• [47:57] Brett Nolan: Critiques the use of “imagined threats” as a basis for limiting fundamental First Amendment rights.

g. What’s Left to Challenge?

• [52:24] Brad Smith: Lists major remaining targets for the Court:
  • The rules on coordination itself.
  • Broad donor disclosure laws (how deep do they go? Should they apply to think tanks, advocacy orgs, etc?).
  • Direct contribution limits—noting these didn’t exist for most of US history.

Notable Quotes & Timestamps

• "You don't have a democracy if you don't have vigorous debate.” — Brad Smith [01:33]
• "The First Amendment is intended to protect meek people, too." — Brad Smith [15:14]
• "What you're at bottom saying is that... we no longer trust the American people who hear a message to decide whether or not they buy it or not. Right? ... I just think it's cynical." — Brett Nolan [21:24]
• "If you limit the money, you're limiting the substantive right." — Brad Smith [41:57]
• "The idea that you could not air a documentary movie, even a bad and partisan documentary movie, that you could not air that about a major presidential candidate during an election year, strikes me as the antithesis of the First Amendment." — Brad Smith [43:18]
• "The government can limit contributions not just to stop quid pro quo corruption, but... the appearance of it. Because the real or imagined threat of quid pro quo corruption is something that the government can try to protect us against." — Brett Nolan [47:57]
• "If the manner of an election involves anything related to the campaign, it pretty much covers all of American society. And that's... incompatible with the First Amendment." — Brad Smith [39:39]

Key Timestamps by Segment

| Segment | Timestamps | |--------------------------------|-----------------| | Institute for Free Speech Intro | 01:25 – 04:04 | | First Choice Case Overview | 05:11 – 10:10 | | Donor Privacy & NAACP Analogy | 10:10 – 12:44 | | Policy Debate over Disclosure | 12:44 – 19:27 | | State Power, Selective Enforce. | 23:28 – 27:27 | | Federal vs. State Courts | 31:07 – 32:10 | | NRSC v. FEC Background | 32:10 – 36:54 | | Regulating Campaigns vs. Elections | 37:41 – 40:01 | | Money as Speech Analogies | 40:20 – 42:27 | | Citizens United Discussion | 42:27 – 44:46 | | Corruption & 'Appearance' Standard | 46:25 – 51:44 | | Remaining SCOTUS Targets | 52:24 – 54:34 |

Tone & Style

The conversation is rigorous yet accessible, with the speakers expressing strong libertarian/free-speech viewpoints but with attention to the real-world stakes and historical lessons. Humor, historical references, and empathy for less powerful voices add to the episode’s nuanced tone.

Summary Takeaway

The episode offers a deeply informed, candid look at Supreme Court cases whose outcomes will shape donor privacy, associational rights, and the permissible boundaries of political collaboration and spending. The discussion highlights the tension between preventing actual or perceived corruption and protecting a vibrant, pluralistic democratic debate—and calls attention to the potential chilling effects of donor disclosure and strict campaign finance laws on both “the meek” and those seeking to effect social change.