A long line of U.S. Supreme Court cases has determined that the First
Amendment protects speech about public matters, including the privacy
of speakers and those who finance that speech. It is true voters have a
right to know who funds the campaigns of politicians in order to monitor
their performance in office. But the government may not force citizens to
divulge their views and contacts with other citizens. Or at least that’s how it’s
supposed to work in the American system.
The principle was tested toward the end of the 2014 Congressional session
when a nonpartisan 501(c)(3) group in Colorado—the Independence
Institute—wanted to run two issue advertisements. The first advertisement
asked citizens to contact Colorado Gov. John Hickenlooper to initiate an
audit of the Colorado Health Benefit Exchange. Another Independence
Institute radio advertisement asked Colorado senators Mark Udall and
Michael Bennett to support the Justice Safety Valve Act, a federal sentencing
reform bill.
By then state and federal campaign finance laws had created a new regulated
category called “electioneering communications.” Colorado law required
donor disclosures from any group spending over $1,000 on television, radio
or print ads mentioning the name of a state candidate within 60 days of a
general election or 30 days of a primary election. Likewise, federal campaign
law demanded the name and address of anyone who gave $1,000 for an
issue advertisement close to an election. Inevitably non-partisan charities
came under the purview of these laws, which effectively transformed free
“issue speech” into regulated “campaign speech.”
In a suit filed in September 2014 in federal district court, the Institute said the
disclosure mandate violates a long-recognized Constitutional principle that
“‘Effective advocacy of both public and private points of view, particularly
controversial ones, is undeniably enhanced by group association.” The
Institute’s suit against Colorado was unsuccessful at the district court and
later its repeal was rejected by the appeals court. The related case against
the Federal Elections Commission was ultimately unsuccessful as well.
Other states would attempt to regulate issue speech, prompting further
challenges to preserve the right of citizens to give to causes without giving
up their privacy.
Learn more about the importance of donor privacy in our report Unheralded Generosity: A 50-State Look at Anonymous Giving.
