The Fight for Free Speech

Things aren’t looking good for individual privacy – at least for those who wish to participate in public policy debates. Despite the First Amendment’s strong defense of free expression, speech is increasingly regulated – especially political and policy dialogue.  For an increasing number of nonprofit organizations, disclosing contributors’ identities is the price paid to be allowed to advocate in the public square. Some fight back against these regulations, arguing in the name of free speech and individual privacy that promoting public policy should not be regulated in the same way as funding a political candidate. A timely example is playing out in the courts right now.

In the fall of 2014, the Independence Institute, a free-market think tank, sued the Federal Elections Commission (FEC). The institute wanted to run a radio ad in support of a bill establishing new federal sentencing guidelines. The ad would have urged listeners to contact their legislators, and would have given the names of two senators supporting the bill. The Independence Institute is a 501(c)(3) research and education entity, meaning that it can publicly advocate for the policies it favors. However, since it is not a political organization, the institute cannot campaign in order to support or oppose politicians. But because one of the legislators named in the ad was running for reelection, the institute feared that airing the ad would subject it to FEC enforcement for having made an “electioneering communication,” and that it would be forced to disclose the names and addresses of its donors.

Under the Bipartisan Campaign Reform Act (better known as McCain-Feingold), an “electioneering communication” is any communication which refers to a candidate for federal office, which is made within 60 days of the election in which that candidate will run, and which is targeted at the “relevant electorate.” Any entity that spends at least $10,000 per year on electioneering communications is required to disclose the names and addresses of contributors who made aggregated donations of $1,000 or more.

Rather than broadcast the ad, the Independence Institute sued the FEC in federal court, arguing that the definition of electioneering communication is too broad and that regulation of such communication ‘chills’ policy discussion by burdening speakers for merely mentioning candidates. It attempted to distinguish between “issue advocacy” (arguing for a bill or policy) and “express advocacy” (campaigning for a politician) – but the court didn’t buy the distinction, citing Supreme Court precedent explicitly rejecting attempts to limit disclosure requirements to express advocacy.

The Independence Institute appealed the case this spring (and the appellate court denied motions for summary judgment which means the institute will at least have the opportunity to be heard), but, as the district court pointed out, no other appellate court has ever held contrary to the Supreme Court that the government may not impose disclosure requirements on speech, or that those requirements may not constitutionally apply to issue advocacy. The institute has an uphill battle.

However, privacy advocates have had a few minor victories (most recently in Delaware and Indiana), but those decisions are narrower in scope than some of the broad disclosure-mandating decisions handed down elsewhere in the last year. For instance, the DC Circuit ruled in November that organizations making electioneering communications must disclose all donors over a certain giving level – regardless of whether or not those donors knew about the communication or intended to fund it.

In California, the Ninth Circuit just upheld a requirement that every nonprofit that solicits charitable contributions must register and reveal the names and contributions of all donors who give more than $5,000 annually. Florida, Hawaii, Kentucky, New York, and Mississippi also demand donor lists from nonprofit organizations seeking to operate in those states. Meanwhile, think tanks in Connecticut and Montana are, like the Independence Institute, struggling against regulations that classify issue advocacy as political activity requiring donor disclosure.

Residents of the Wolverine State may be relieved to know that their donor privacy freedoms remain largely intact. Michigan modified its laws in 2013 to call for identifying information on political ads, ‘robocalls’ and mail, but it still falls well short of requiring full disclosure. In fact, Governor Snyder authored an opinion piece shortly after implementing those reforms, pledging to protect Michiganders’ speech rights. “There’s a movement afoot to require organizations to issue new disclosures – to name names of those who donated money for issue advocacy,” he wrote. “[D]isclosing donors’ names results in the use of scare tactics that are designed to suppress speech and participation in the political process. That … cannot be tolerated.” Perhaps eventually the judiciary will agree.