‘Dark Money’ Disclosure Laws Will Open Door to Harassment and Intimidation

Phoenix—America’s long tradition of private political speech is under attack, says a new report from the Goldwater Institute. The report, “The Victims of ‘Dark Money’ Disclosure: How Government Reporting Requirements Suppress Speech and Limit Charitable Giving” details the history and of the importance of private political speech, the court cases that support it, and the growing movement to force charities to report the names and addresses of their supporters to the government.

“From the American Revolution to the Civil Rights movement, Americans have been able to support the causes they believe in without the government looking over their shoulder and sharing that information with the wider world,” said Jon Riches, senior attorney and general counsel at the Goldwater Institute, and author of the report. “And there’s a good reason for that—people have been targeted and harassed for their beliefs.”

In the wake of the U.S. Supreme Court’s 2011 Citizens United decision, which recognized the right of certain types of advocacy organizations to spend unlimited amounts of money on issue campaigns without reporting their financial backers, there have been growing calls to get money out of politics. But those calls have begun to take on an expanded mission: to require charitable organizations to report the names and addresses of their supporters to the government, even if those charities don’t endorse or oppose candidates or spend most of their resources on politics.

Ascribing the negative term “dark money” to all organizations that do not report their donors, even those that do not endorse or oppose candidates or engage in politics as their primary purpose, has led many Americans to believe these groups are doing something wrong or illegal, the report explains. But the Constitution, federal law, and Supreme Court precedent allow people to support charitable organizations privately.

Federal law already prevents charitable groups from supporting or opposing the election of candidates or spending most of their resources on political efforts. These types of charities—like the American Lung Association, Sierra Club, or the National Rifle Association—are allowed to inform the public about issues that would impact their mission without reporting the names and addresses of their donors to the government.

And the Supreme Court has reinforced the ability to privately support charitable organizations that advance a cause. In NAACP v. Alabama, decided during the Civil Rights era, the Supreme Court said that the NAACP did not have to provide the names and addresses of its supporters to the state of Alabama. “Just imagine what would have happened to the supporters of the NAACP if the state of Alabama had been able to publish their names during the height of the fight for Civil Rights. Considering the violence that was common during the time, it’s not a stretch to say that NAACP supporters would have feared for their lives,” said Riches.

The right to speak out or support causes we believe in privately has been part of the American landscape hundreds of years before the NAACP case. TheFederalist Papers, written under the pen name “Publius,” are the seminal writings advocating for adoption of the U.S. Constitution. The Constitution may never have been ratified had it not been for anonymous political speech, writes Riches.

Americans today are just as vulnerable to being targeted for their beliefs and the causes they support, the report explains. The report offers several examples of people who have lost their jobs, had their businesses targeted by protestors, or been targeted for harassment based on the candidates or issues they support. The report tells the story of one Wisconsin woman whose house was raided by police in the early morning hours because she was part of an organization that supported public sector union reforms adopted in that state. Heavily armed police poured into her home, took all her computers and phones, and told her she was not allowed to contact an attorney.

Dozens of states legislatures and state regulatory bodies have considered or passed laws that would force charitable groups to report the names and addresses of their supporters to the government. Many of these laws come through overly broad and poorly written definitions in campaign finance regulations like what qualifies as a “political committee” or “electioneering communication.” Others come from state regulators forcing charities to turn over their support lists before they are allowed to do business in the state.

But the First Amendment guarantees Americans the right to associate with others who share their beliefs, and laws that chill the ability to associate would be unconstitutional, the report says. Laws that force charities to report the names and addresses of their supporters to the government could cause people to stop associating with causes and groups they support for fear of harassment and intimidation, and that would violate the First Amendment.

One group supporting these disclosure laws told the New York Times it “planned to confront donors to conservative groups, hoping to create a chilling effect that will dry up contributions” by exposing donors to “legal trouble, public exposure and watchdog groups digging through their lives.”

“This is exactly the kind of harassment and intimidation the First Amendment is designed to protect,” said Riches. “State lawmakers need to think very carefully before passing laws that could allow people—on the left or right—to harass their opponents into silence. Debate is a good thing for our country and we must protect people’s right to have their voices heard.”

Read “The Victims of ‘Dark Money’ Disclosure: How Government Reporting Requirements Suppress Speech and Limit Charitable Giving” here.

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About the Goldwater Institute

The Goldwater Institute drives results by working daily in courts, legislatures and communities to defend and strengthen the freedom guaranteed to all Americans in the constitutions of the United States and all 50 states. With the blessing of its namesake, the Goldwater Institute opened in 1988. Its early years focused on defending liberty in Barry Goldwater’s home state of Arizona. Today, the Goldwater Institute is a national leader for constitutionally limited government respected by the left and right for its adherence to principle and real world impact. No less a liberal icon than the New York Times calls the Goldwater Institute a “watchdog for conservative ideals” that plays an “outsize role” in American political life.