October 10, 2019
By Matt Miller
As we have written about extensively on this blog, states
and cities continue to try and expand their campaign finance laws, claiming a
dubious “right to know” who is donating money to every nonprofit group that
dares to opine about a ballot measure of piece of legislation. Last week, one
of these laws received some serious pushback from a federal judge in New
Jersey, where a state-based group recently sought to enjoin enforcement of the
state’s latest attempt to regulate the speech of nonprofit groups, put their
supporters on a government list, and invite harassment and intimidation of nonprofit
supporters by their ideological opponents.
Last week, in a 43-page opinion, federal judge Brian Martinotti enjoined the enforcement of a 2019 New Jersey law that required nonprofit groups to give the government a list of certain supporters any time those groups “engage[d] in influencing or attempting to influence the outcome of any election … or the passage or defeat of any public question, or in providing political information on any candidate or public question[.]” This includes communications that “contains facts on any such candidate, or public question.”
Judge Martinotti, an Obama appointee, issued a preliminary
injunction of the law on the grounds that it violates the First Amendment. It
is “constitutionally troubling,” he wrote, “the way in which … the Act brings
communications of purely factual political information into a disclosure and
financial-reporting regime[.]”
Citing the seminal 1958 U.S. Supreme Court case NAACP v.
Alabama, Judge Martinotti reiterated that “the Supreme Court of the United
States [has] recognized the compelled identification of contributors to independent
groups that expend money on political causes ‘can seriously infringe’ the rights
to privacy of association and to belief guaranteed by the First Amendment.” And
the New Jersey law, which requires any group spending more than $3,000 to
provide “political information” or “facts on [a] candidate or public question”
to disclose its major supporters, does just that. It forces groups to choose
between remaining silent versus putting their supporters on a government list,
and thereby exposing them to potential ideological harassment and intimidation.
New Jersey Democratic Assemblyman Andrew Zwicker defended
the law, claiming that “You have every right to
advocate, but we the people have every right to know where the money comes
from.” Not so. The U.S. Supreme Court has never recognized a “right to know”
who gives money to nonprofit groups, even (perhaps especially) when those
groups speak about political topics. The rights to freedom of speech and
association are found directly in the First Amendment. A “right to know” is
found nowhere in the Constitution. The only “right to know” widely recognized
by courts is the right of the people to know what the government is doing. Instead,
disclosure proponents turn this argument on its head and argue that the government
has a right to know what people are doing, and who they are associating
with. But that is not transparency. That
is surveillance.
Thus, proponents of more disclosure are making a false
equivalence when they claim a “right to know” versus “freedom of speech.” The
“right to know” refers to the informational interest that governments claim
that voters have in knowing who gave money to nonprofit groups. By being
able to access lists of supporters, they claim, voters will make “more
informed” decisions when they go to the polls. Indeed, these are precisely the
arguments the government has made in two cases currently being litigated by the
Goldwater Institute, in Denver, Colorado, and Santa Fe, New Mexico.
Ultimately, the U.S. Supreme Court will need to sort out the
questions being raised by these cases. For many decades, protecting supporter
confidentiality was perceived to be a cardinal virtue in the nonprofit
community. Indeed, it was—and is—taught in schools specializing in nonprofit
administration. That is because almost everyone who donates to a nonprofit
group believes their donation will remain confidential unless they, the supporter,
authorize it to be made public. No one thinks their name, address, and often
employer will wind up on a government list just because they gave to a group
that aired an opinion about a ballot measure or piece of legislation. Courts
can and should protect the free speech rights of nonprofits and the free association
rights of their supporters.
Until the Supreme Court rules, Judge Martinotti’s thoughtful
opinion is a good start.
Matt Miller
is a Senior Attorney at the Goldwater Institute.
