Tuesday, October 11, 2011

Disclosing donors -- Infringing on free speech.

There's been an ongoing debate with the Minnesota Campaign Finance Board over their changing financial disclosure requirements for nonprofits organizations and ballot question committees.

Here's a good opinion piece in the Star Tribune by Peter Nelson of the Center of the American Experiment on the topic which makes several good points. One is the proposed changes are so ambiguous they'll be hard for groups to comply with. And second, requiring nonprofits to disclose their donors will infringe on their free speech rights. It will subject some people to harrassment and threats which will have a chilling effect on free speech.
Donor disclosure regulations can infringe on First Amendment rights in at least two ways. First, compliance with the regulations can be so burdensome that people decide any effort to organize people to speak out isn't worth the hassle. Reporting requirements can be expensive, complicated and just plain intimidating.

In Minnesota, any "political committee" -- meaning two or more people supporting or opposing a candidate or ballot question -- receiving more than $100 must file a number of reports. Imagine filing your own taxes five times a year and then imagine a nosy neighbor looking for mistakes to report. These disclosure requirements pose particular burdens on small organizations unable to afford a campaign finance attorney.

Second, disclosure can expose people to public harassment, economic reprisal, loss of employment and even violence. Just the threat of these responses poses a substantial burden on the exercise of First Amendment rights.

Peter also points out the distinction between candidates and ballot questions, issue advocacy. With the former there's potential for corruption, buying votes. That concern doesn't exist with ballot questions. People are simply stating their view on an issue which they support or oppose.

In Buckley v. Valeo, a landmark Supreme Court campaign finance case, the court did cite a government interest in providing the electorate with information on donations "in order to aid the voters in evaluating" candidates.

However, evaluating candidates is different than evaluating issues. As the court explained, disclosure of donations to candidates helps voters "place each candidate in the political spectrum more precisely" and "alerts voters to the interests to which a candidate is most likely to be responsive."

In the case of a ballot question, there is no lack of precision. The issue is
spelled out on the ballot.

Despite the heavier burden on First Amendment rights and the smaller government interest in disclosure, contributions to ballot questions are treated just like contributions to candidates under Minnesota's campaign finance disclosure requirements. The fact that Minnesota law does not distinguish a difference suggests the law, as it relates to ballot questions, is unconstitutional.

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