A federal appellate court rejected a lawsuit filed by members of Congress against the federal government’s election watchdog agency, upholding the agency’s rules on privacy rights for campaign donors.
In January, the U.S. Court of Appeals for the District of Columbia reversed a lower court’s ruling that determined the Federal Election Commission (FEC) is incorrectly implementing campaign finance regulations by requiring information on donations made to non-profit groups organized under Section 501(c)4 or under Section 501(c)6 of the Internal Revenue Code.
The lawsuit, filed in 2011 by U.S. Rep. Chris Van Hollen (D-MD) and other lawmakers, claimed the Bipartisan Campaign Reform Act, the law FEC was using to justify its regulations, required “all contributors who contributed an aggregate amount of $1,000 or more” to be disclosed. The plaintiffs said FEC exceeded its authority by implementing a narrower regulation than intended by lawmakers.
As implemented by FEC, organizations are required to disclose the identity of individuals or organizations if their donations were intended to fund “electioneering communications.”
Price of Free Speech
Paul Sherman, a senior attorney with the Institute for Justice, a non-profit public-interest law firm, says Van Hollen’s lawsuit was intended to drive up the social and political cost of engaging in political speech.
“Rep. Van Hollen wants organizations that participate in politics to disclose all of their donors, instead of just the donors who contribute for the specific purpose of funding political speech,” Sherman said. “What too many people ignore is that additional disclosure always comes at a cost to speakers, both in terms of privacy and in terms of red tape.”
Sherman says stripping away the privacy of donations can create misleading assumptions about the donors.
“Requiring disclosure of donors who contribute general operating funds to a nonprofit can be highly misleading,” Sherman said. “It creates the impression that they are responsible for political messages they may not know about or even agree with.”
‘Skeptical of the Law’
Sherman says more courts should question the constitutionality of campaign disclosure rules and regulations.
“Courts should treat disclosure no differently than any other regulation that has the potential to chill speech,” Sherman said. “They should be skeptical of the law and require the government to come forward with real evidence that the law produces public benefits and that it is no broader than necessary to achieve those benefits.”
Kyle Maichle, project manager for constitutional reform issues at The Heartland Institute, which publishes Budget & Tax News, says donor privacy protects citizens’ right to contribute to causes they believe in.
“If you force 501(c)4s to disclose their donors, then it will have a chilling effect on freedom of speech rights, and it can expose the names of donors who have entrusted the organization not to disclose them,” Maichle said.
Dustin Siggins ([email protected]) writes from Washington, DC.