In a recent report subtly titled “Secret Spending in the States,” the Brennan Center for Justice argues that “exceptionally tough disclosure requirements and [an] active enforcement culture” can help extirpate the scourge of “dark money” in state and local politics. This is either Pollyannish naivete that underestimates the threat of harassment and its chilling effect on speech, or fully ripened duplicity that counts on it.
The First Amendment guarantees your right to join with others to advance your point of view. As part of this guarantee, the First Amendment protects your right to keep your participation private. In the 1958 case NAACP v. Alabama, the Supreme Court held that Alabama could not force the NAACP to disclose its members: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” Perhaps the staffers at the Brennan Center are unaware that their position on “dark” money would once have found a home with the segregationists of the Jim Crow South.
The chilling effect of “exceptionally tough disclosure requirements and active enforcement culture” is real. In Wisconsin, politically motivated prosecutors and regulators used a secret John Doe investigation to serve one nonprofit advocacy group with a subpoena that the Seventh Circuit called “extraordinarily broad, covering essentially all of the group’s records for several years — including records of contributors.” The prosecutors and regulators also orchestrated predawn paramilitary raids on the homes of some of the group’s associates. The Wisconsin Supreme Court found that the prosecutors’ “legal theory is unsupported in either reason or law” and ended the investigation, but the prosecutors’ message was received: Donations to the group vanished, and its speech was chilled.
The Brennan Center coordinated with these same Wisconsin regulators to file amicus briefs in the Seventh Circuit to preserve the John Doe investigation.
Montana’s speech regulator Jon Motl, a Common Cause alumnus who admits he has a bias against “dark money” similar to the “bias a policeman might have against a bank robber,” took disclosure one step further. After compelling disclosure of an association’s bank records, Motl declared those records public and released them, including donors’ checks complete with signatures, to friendly reporters who duly published the canceled checks on the internet.
Kamala Harris, the California attorney general, requires all nonprofit organizations operating in the state to disclose their Schedule B, an IRS form that lists their donors. In a challenge to the requirement, the trial court found that “[t]he record before the Court lacks even a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General’s investigative, regulatory, or enforcement efforts.” On the other hand, “the Court heard ample evidence establishing that [the nonprofit], its employees, supporters and donors face public threats, harassment, intimidation, and retaliation once their support for and affiliation with the organization becomes publicly known.”
As the Supreme Court recognized in NAACP v. Alabama, compelled disclosure that leads to private harassment also chills speech. In California, a group calling itself “Hedge Clippers” reveals the names of donors with the express purpose of suppressing their speech. As group member Amy Schur told the San Francisco Chronicle, “We are saying billionaires beware, we are watching what you are doing, and you won’t do this in secret.”
In light of the regulators’ paltry justifications for compelling disclosure and the harassment that ensues, the quest for disclosure as a remedy for the scourge of “dark money” strikes a hypocritical note. One can test the commitment of the opponents of “dark money” to the principle of disclosure by examining their own policies: Common Cause, for example, is a proponent of donor disclosure when it suits them. The group’s “Donor Transparency Policy” states that it accepts anonymous donations and will suspend disclosure of its donors whenever it determines it has good reason to do so. In other words: Disclosure for thee, but not for me.
The courts are an uncertain bulwark against speech chilling regulation. The Supreme Court just refused to consider a nonprofit’s challenge to a Delaware law that required disclosure of the nonprofit’s donors as the price for speaking. Justice Thomas authored a rare dissent: “Given the specter of these First Amendment harms, a State’s purported interest in disclosure cannot justify revealing the identities of an organization’s otherwise anonymous donors.”
For most citizens, the only means to participate effectively in public debate other than voting is to join financially with others. The First Amendment protects the privacy of that association. Where prosecutors and regulators wield the cudgel of “disclosure” with the effect — and the purpose — of chilling those with whom they disagree, they harm public discourse and violate the First Amendment.
Ben Hurst is an attorney with Graves Garrett LLC, in Kansas City, Missouri. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
