Last week, I finished working on the final brief of ERI’s client, Oxfam America, in the District Court lawsuit that the oil industry has filed to overturn landmark transparency legislation, American Petroleum Institute v. SEC. In this brief, my co-counsel and I underlined the lies and misleading references that the American Petroleum Institute (API) has spun in order to turn a common-sense, straightforward disclosure rule into a bug-eyed monster.
API’s argument revolves around three main themes. First, they say it would violate their First Amendment free speech rights if oil companies were forced to publish information on the payments they make to governments. In other words, they claim that companies have a constitutional right to make secret payments. This argument is the legal equivalent of “swinging for the fences,” because if the court agrees with API, it could actually overturn the law instead of just invalidating the regulations that the SEC enacted under the law.
It’s also the legal equivalent of a Hail Mary pass, because the argument is extremely thin. In order to get there, API has to get the court to see these disclosures as a form of political coercion so that it can enjoy the same protections that political organizers receive when they seek to keep their supporters confidential. To get First Amendment protection, you have to show that government is somehow controlling or chilling the expressive speech that you want make; it’s hard to see how these disclosures do that.
Of course, businesses can be required to disclose information all the time in the public interest, and it’s not political speech. If API’s arguments were taken seriously, then the government couldn’t require companies to tell you what’s in the pesticides farmers use or to report to their . . .