How Donor Disclosure Laws Invade Privacy, Stifle Dissent, and Threaten Free Speech
THERE IS A GROWING MOVEMENT in the United States to make participating in politics an illegal activity—illegal unless you fill out the right forms to get the right permit from government. This movement flies under the flag of transparency, but it’s actually something else: It’s an assault on free speech. One of the primary ways this movement seeks to limit political speech is mandatory nonprofit donor disclosure requirements.
As U.S. Senator Chuck Schumer said when introducing such a disclosure bill, “the deterrent effect [on speech] should not be underestimated.”
This thirst for more disclosure is what drove nine U.S. Senators to hound the Internal Revenue Service to audit conservative groups and deny right-of-center 501(c)(4) groups their applications for tax-exempt status—political pressure that many believe led to the IRS scandal.
The Founders were acutely aware of this type of pressure when they wrote the First Amendment and laid out a principle that is too often forgotten by lawmakers and judges. The Bill of Rights begins: “Congress shall make no law … abridging the freedom of speech.”
Unfortunately, these 10 words have been subsumed by more than 376,000 words that make up federal election laws and regulations. To understand what these hopelessly vague words might mean, speakers must seek the guidance of nearly 1,900 advisory opinions and almost 7,000 enforcement actions. This is to say nothing of the convoluted state of campaign finance law in each of the 50 states. Each state adds its own regulations with its own unique terms and corresponding penalties for violating the law. Our labyrinthine tax code is the picture of clarity by comparison.
The Bill of Rights begins: “Congress shall make no law … abridging the freedom of speech.” Unfortunately, these 10 words have been subsumed by more than 376,000 words that make up federal election laws and regulations.
Worse still, incumbent politicians are using these complex laws to stifle dissent and maintain their power.
Permitting Political Speech
Across the United States, in blue states and red states, primarily in Democratic-controlled legislatures, but also in some bodies run by Republicans, on Capitol Hill, and in little-known state and federal regulatory bodies, incumbent legislators are using these government reporting requirements as a deadly weapon. With the aid of a vast, well-funded network of activist groups, these legislators are intent on silencing their critics. The free speech rights of everyday citizens and the candidates and causes they support are merely a victim of this ugly political campaign.
As former FEC Chairman Bradley A. Smith has written:
It’s far from clear that the forced disclosure of political contributions has benefited society. Disclosure has resulted in government-enabled invasions of privacy—and sometimes outright harassment—and it has added to a political climate in which candidates are judged by their funders rather than their ideas.
Disclosure of donations to candidates and political parties didn’t exist until the 1970s. But today, recently passed and newly proposed government reporting requirements are aimed at a stunning variety of activities, and few have been tested in court.
In Delaware, charitable groups that publish nonpartisan voter guides as an educational service to their fellow citizens must register with the state in filings nearly identical to those made by political parties or PACs as well as turn over their contributor lists to government bureaucrats, thanks to a law passed in 2012. My organization, the Center for Competitive Politics, is currently fighting this law in court on behalf of a small family-values nonprofit.
In 2013 in deep red Texas, Gov. Rick Perry (R) vetoed a bill that would have forced citizen groups to publicly identify their supporters. The Texas Ethics Commission took its cues from disgruntled legislators and passed a functionally similar version of the bill via regulatory fiat in October of 2014. To Perry’s credit, he vetoed the bill out of concern that it could “be used by any government, organization or individual to intimidate those who choose to participate in our process through financial means.” Still undeterred, the same group of Republican legislators behind the 2013 legislative effort is pushing a very similar bill in the 2015 Texas legislative session. Only this time, Perry and his veto pen are no longer in office.
In Wisconsin, state prosecutors have employed a secretive and invasive “John Doe” probe against conservative allies of Gov. Scott Walker (R) simply because these groups worked on policy issues supported by the governor. The end result (and likely intent) of the witch hunt was to force Walker’s allies to the sidelines in the heat of a tough re-election battle.
In the 2013 and 2014 legislative sessions alone, incumbent politicians—from both parties—in at least 18 states seriously considered and, in some cases, passed disclosure legislation crippling the free speech rights of American citizens guaranteed to them by the First Amendment.
And in the most galling act of all, the U.S. Senate voted on a constitutional amendment in 2014 that would have granted incumbent members of Congress and their counterparts in the states unbridled power to regulate the political speech of those they serve. In other words, it would have effectively repealed the free speech protections of the First Amendment. Fortunately, the proposal failed thanks to resolute Republican opposition.
In the 2013 and 2014 legislative sessions alone, incumbent politicians—from both parties—in at least 18 states seriously considered and, in some cases, passed disclosure legislation crippling the free speech rights of American citizens guaranteed to them by the First Amendment. This is a national phenomenon: four of these states had legislatures and governor’s offices controlled by Republicans (Arizona, Texas, Utah, and Wyoming), while six were held by Democrats (California, Maryland, Massachusetts, Minnesota, Vermont, and West Virginia), and eight had split party control (Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, and Washington). Eight are in the West, five are in the East, two are located in the Midwest, and three states are in the South.
In 2015 alone, legislation has been introduced—and, in some cases, seriously considered—in Arkansas, California, Hawaii, Maine, Minnesota, Missouri, Montana, New Jersey, New Mexico, Tennessee, Texas, Washington, and West Virginia that would force nonprofit groups to report the personal information of their supporters to the government. I could go on, but the point should be clear: The movement to expand regulation of speech and association in order to stifle dissent is alive and well across the country. Worse still, if the 2015 legislative sessions are any indication, it appears that this movement is gaining steam.
Harassment Is a Feature Not a Bug
The ever-growing jungle of federal and state campaign finance regulations has posed a grave threat to freedom of speech and association for decades. In recent years, however, the Citizens United decision (in which the Supreme Court ruled in 2010 that the federal government lacked the power to ban a movie produced by a nonprofit corporation simply because it mentioned the name of a candidate in close proximity to an election) galvanized opponents of free speech and sparked a renewed offensive to squelch political participation. The strongest weapon in these activists’ arsenal is increased donor disclosure requirements. And they have no concern for citizen casualties.
Supporters of California’s Proposition 8 ballot initiative, which sought to uphold traditional marriage, found out this nasty truth all too well. Thanks to state law, the names, home addresses, and occupations of contributors to the effort were made publicly available to anyone with access to the Internet. Predictably, opponents of the measure exploited this information to harass supporters. Some contributors’ lives were threatened. The places they worked were boycotted. Maps were made by gay rights groups highlighting the homes of Prop 8 supporters. Although much of this happened in 2008, just recently, Mozilla CEO Brendan Eich was forced to resign after Prop 8 opponents discovered that he contributed $1,000 in support of the measure. The episode served as a chilling reminder that once an individual’s private information is reported to the government and made publicly available, the disclosure cannot be taken back. Contributions from years prior can be dug up to harass citizens whom activists deem to be on the wrong side of any issue, even in hindsight.
Of course, harassment stemming from the public availability of compulsory disclosure information isn’t limited to the plight of traditional marriage supporters. In the months before the 2008 election, thousands of donors to Republican candidates and causes were sent intimidating letters from a group called Accountable America. The letters warned recipients that their contributions may expose them to legal consequences, harassment from opposition voices, and the public release of their private, personal information.
In one especially frightening case, Gigi Brienza, a $500 donor to John Edwards’ failed 2004 presidential campaign, was harassed by a known eco-terrorist group because her occupational information was made publicly available. The terrorist organization, which resorted to violence against the British company Huntingdon Life Sciences because of its animal-testing policies, targeted Brienza because her company (Bristol-Myers Squibb) contracted with Huntingdon Life Sciences to conduct pharmaceutical research. In the past, members of the eco-terrorist organization have engaged in bomb attacks, and in 2009 and 2010 alone, 13 of its members were jailed for a variety of serious crimes. Compliments of our federal disclosure laws, Brienza’s name and address were posted on a list of “targets,” with directions to the group’s members, saying “now you know where to find them.” Fortunately, the terrorists never harmed Brienza, but the fact remains that our compulsory disclosure laws afforded them the opportunity to do so.
With the costs of disclosure so high, what are the supposed benefits of such regulations?
First, some background: on the federal level, we have more disclosure today than at any time in our nation’s history. The names, addresses, occupations, and employers of donors to candidates, political parties, political action committees (PACs), Super PACs (which can only make expenditures independently of candidates), and a variety of other primarily political groups over relatively paltry amounts are required to be reported to the government in the name of public knowledge about the source of these groups’ support. Even primarily non-political groups organized under Section 501(c)(4) of the Internal Revenue Code (like the National Rifle Association and the National Right to Life Committee) are required to disclose contributors who earmark their donations for ad campaigns aimed at electing or defeating a candidate. Some states, like Colorado, take this even further, requiring disclosure of the names and home addresses of donors to candidates and groups who give as little as $20. In other words, a contribution to a candidate in Colorado that would buy less than a tank of gas still requires your personal information to be reported to the state and broadcast on the Internet for your nosy neighbors to see. Other states require reporting of any donation, no matter how small.
Unsurprisingly, numerous academic studies have shown what common sense already tells us: disclosure laws infringe upon citizens’ cherished right to privacy and dissuade would-be supporters from exercising their First Amendment right to contribute to candidates and causes. So, again, with all these requirements already on the books and the dangers of disclosure well-documented, why do regulators push for even more information to be disclosed?
The answer is that a well-organized and richly funded network of speech regulatory activist groups in concert with thin-skinned politicians view additional disclosure laws as necessary for lasting electoral success. The theory is simple and scarily effective: expose and misrepresent individuals’ viewpoints and political sympathies in a hyper-polarized climate, then use the publicly available information to attack candidates and causes for their sources of financial support, and citizens will think twice before ever contributing in the future. The John Doe inquisition in Wisconsin is a striking example of this strategy in action.
The anti-First Amendment lobby wants to expand our already extensive disclosure regime to organizations that are not primarily political but who sometimes advocate on behalf of issues as a small part of their overall mission. In particular, regulators want to expose supporters of 501(c)(4) advocacy nonprofits, like the 60 Plus Association and Americans for Tax Reform, and 501(c)(6) trade associations, like the National Association of Manufacturers and the U.S. Chamber of Commerce. Of course, sloppy drafting of legislation can cause donors to 501(c)(3) educational organizations like The Heritage Foundation and similar state and national think tanks to get caught in the crosshairs, too. Indeed, the Center for Competitive Politics is representing the Independence Institute of Colorado in a legal challenge to that state’s laws, which require the think tank to reveal its supporters simply for running an ad about the Colorado Health Benefits Exchange, which mentions the name of Gov. John Hickenlooper (D).
For incumbents, who are often well-funded and wield the myriad other advantages of incumbency, stifling speech through government reporting requirements only enhances their power by making it harder for challengers to amass the funding necessary to wage a competitive campaign. For pro-regulation activist groups, which operate almost exclusively on the Left (or far-Left) side of the political spectrum, donor disclosure is seen as an effective method of drying up donations to conservative candidates and causes, thereby making it easier to advocate for and pass a progressive agenda in Washington and in state capitols across the country.
The irony is, while preaching that even greater disclosure is a boon to public knowledge, what we’re really left with—in addition to the unseemly intimidation, frightening threats of violence, and the reluctance of Americans to exercise their free political speech rights—is “junk disclosure” that misleads the public.
Individuals who donate to multi-purpose organizations that are not primarily political may not even be aware of, let alone supportive of, the small portion of an organization’s activity that is political. As a result, disclosing the identities of these donors is unfair and produces something as useful as a radio with no sound. If the stated purpose of disclosure is to inform the public about the sources of a candidate or group’s support, disclosure of donors with no advance knowledge of or agreement with a particular communication actually misinforms the public while providing a vehicle for official or private harassment.
And really, does anyone not know the primary supporters and leanings of nonprofit groups like Americans for Prosperity? What about Crossroads GPS? Neither group discloses its donors, but a simple Google search, let alone any news story, will tell you within seconds that Americans for Prosperity is funded with support from the libertarian Koch brothers and that Crossroads GPS is affiliated with conservative political consultant Karl Rove. The same goes for countless other groups on both the left and right, who aren’t required to hand over the private information of their supporters to the government. In this light, the need for even more rigorous campaign finance disclosure requirements looks even more dubious.
This begs another important question. Shouldn’t our political discourse be based on the message—and not the messenger? When we step into a voting booth, we’re voting to express support for our chosen candidate’s positions—and opposition to their opponent’s agenda. When we choose to contribute to an organization we’re passionate about, we do so to advance its mission, whatever that may be. In both cases, what really matters is not who’s funding the candidate or the cause, but what that candidate achieves while in office, and what benefits that cause brings to society. Unfortunately, our disclosure regime undermines the message itself in an effort to transform campaign debates into nothing but a series of ad hominem attacks.
Thanks to the self-appointed speech police, we’re living in a world in which citizens are no longer monitoring the government. Nowadays, disclosure is used by the government to monitor the political speech and opinions of the citizens responsible for funding, electing, and legitimizing it. This situation is government run amok, with no benefit—and a plethora of serious costs—to American citizens.
And, at the end of the day, it’s not the Koch brothers or the Michael Bloombergs of the world that need defending from the government. Rather, it’s the Prop 8 supporters and the Gigi Brienzas of the world, who had their lives threatened, simply for expressing their opinions through a small monetary contribution.
As legislative sessions drag on, concerned citizens and organizations across the country must keep a watchful eye on the actions of their elected representatives in state legislatures and the halls of Capitol Hill. Our First Amendment right to voice our opinions on elected officials and the issues that affect our lives has never been more in peril.
We must always remember that every American has the right to support the causes he believes in. But, in order to do so, we must protect individual privacy and citizens’ ability to come together in support of each other. We must also protect the resources these groups need to make their voices heard.
But unless citizens and groups who value their free speech rights remain vigilant, the First Amendment’s ringing promise that “Congress shall make no law … abridging the freedom of speech” is poised to become nothing more than a faint echo drowned out by the ever-amplified voices of those in power.
Mr. Nese is the Director of External Relations at the Center for Competitive Politics, the nation’s largest organization dedicated solely to protecting First Amendment political rights.