Federal Election Commission officials may take the nearly unprecedented step of exempting a Tea Party group from disclosing its donors due to concerns its supporters could face harassment and retaliation from government officials such as the Internal Revenue Service and private citizens.
The Tea Party Leadership Fund requested the exemption and convinced some FEC officials "that TPLF is entitled to an exemption from the reporting and disclosure requirements of the [law] and Commission regulations because it has demonstrated a reasonable probability that compelled disclosure would subject its supporters to threats, harassment, or reprisals."
But FEC staff also drafted an opposing opinion, and the commissioners will vote on which will become its ruling.
"TPLF included in its advisory opinion request over 1,400 pages of exhibits as evidence showing such harassment and hostility. The exhibits consist primarily of media reports but also include government records,” the pro-exemption draft says.
Examples include death threats, arson, "opponents covering a parking lot with nails at a Tea Party rally" and "eggs thrown at a Tea Party Express bus."
“TPLF states that these exhibits establish a reasonable probability that compelling it to disclose its contributors and the recipients of its disbursements in reports filed with the Commission will subject these persons to ‘continued threats, harassment, or reprisals from governmental officials or private parties,’ which will make supporters less likely to contribute to TPLF and will damage TPLF’s advocacy efforts."
That rationale cuts sharply against years of rulings that have held disclosure is essential to allow the public to know who is influencing a politician.
The same rulings have consistently held that although people have the right to express themselves politically via their cash, they do not have the right to anonymity.
A 1970s court case that laid the groundwork for important campaign finance regulations, though, did leave a back door in language sometimes exempting minor parties for which free speech could bring more widespread backlash and perhaps even crush burgeoning movements.
Conservative stalwart and Supreme Court justice Antonin Scalia wrote that “requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
He noted that there are already criminal laws against some of the harassment detailed, such as the nails in the parking lot and egg-throwing.
"There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance," he wrote.
Rep. Chris Van Hollen, D-Md., said, "I am sure the Koch brothers, I'm sure George Soros and others who want to spend money to influence elections, as is their right, I'm sure people sometimes say things that hurt their feelings. But that's no reason we should prevent voters from having that information."
But in 1982, the Supreme Court gave such an exemption to the Socialist Workers Campaign Committee.
TPLF would be "exempt from disclosing not only its itemized contributors, but also its itemized disbursements, its electioneering communications, and its independent expenditures, all of which are reasonably probable to lead to reprisals against TPLF or individuals affiliated with it if disclosed" — a radical exemption given that even the most lightly regulated of political groups, those registered as "social welfare" groups such as Americans for Prosperity, must disclose as least their spending on ads.
The competing "advisory opinion," which would leave the status quo intact and require the Tea Party group to disclose its donors, denies the request, reasoning that the Tea Party is widespread and prominent and not a "minor party or organization."
"Despite having run a candidate for president in every election since 1948 and numerous other candidates for federal, state, and local offices, no Socialist Workers Party candidate had ever been elected to public office in a partisan election.
"Here, by contrast, between its inception in May 2012 and June 30, 2013, TPLF has made contributions to many successful candidates currently serving in the U.S. Congress," the draft says.
It also notes that a group that raised $2.5 million in one year, as TPLF did, is hardly minor.