October 10, 2019
By Matt Miller
As we have written about extensively on this blog, states and cities continue to try and expand their campaign finance laws, claiming a dubious “right to know” who is donating money to every nonprofit group that dares to opine about a ballot measure of piece of legislation. Last week, one of these laws received some serious pushback from a federal judge in New Jersey, where a state-based group recently sought to enjoin enforcement of the state’s latest attempt to regulate the speech of nonprofit groups, put their supporters on a government list, and invite harassment and intimidation of nonprofit supporters by their ideological opponents.
Last week, in a 43-page opinion, federal judge Brian Martinotti enjoined the enforcement of a 2019 New Jersey law that required nonprofit groups to give the government a list of certain supporters any time those groups “engage[d] in influencing or attempting to influence the outcome of any election … or the passage or defeat of any public question, or in providing political information on any candidate or public question[.]” This includes communications that “contains facts on any such candidate, or public question.”
Judge Martinotti, an Obama appointee, issued a preliminary injunction of the law on the grounds that it violates the First Amendment. It is “constitutionally troubling,” he wrote, “the way in which … the Act brings communications of purely factual political information into a disclosure and financial-reporting regime[.]”
Citing the seminal 1958 U.S. Supreme Court case NAACP v. Alabama, Judge Martinotti reiterated that “the Supreme Court of the United States [has] recognized the compelled identification of contributors to independent groups that expend money on political causes ‘can seriously infringe’ the rights to privacy of association and to belief guaranteed by the First Amendment.” And the New Jersey law, which requires any group spending more than $3,000 to provide “political information” or “facts on [a] candidate or public question” to disclose its major supporters, does just that. It forces groups to choose between remaining silent versus putting their supporters on a government list, and thereby exposing them to potential ideological harassment and intimidation.
New Jersey Democratic Assemblyman Andrew Zwicker defended the law, claiming that “You have every right to advocate, but we the people have every right to know where the money comes from.” Not so. The U.S. Supreme Court has never recognized a “right to know” who gives money to nonprofit groups, even (perhaps especially) when those groups speak about political topics. The rights to freedom of speech and association are found directly in the First Amendment. A “right to know” is found nowhere in the Constitution. The only “right to know” widely recognized by courts is the right of the people to know what the government is doing. Instead, disclosure proponents turn this argument on its head and argue that the government has a right to know what people are doing, and who they are associating with. But that is not transparency. That is surveillance.
Thus, proponents of more disclosure are making a false equivalence when they claim a “right to know” versus “freedom of speech.” The “right to know” refers to the informational interest that governments claim that voters have in knowing who gave money to nonprofit groups. By being able to access lists of supporters, they claim, voters will make “more informed” decisions when they go to the polls. Indeed, these are precisely the arguments the government has made in two cases currently being litigated by the Goldwater Institute, in Denver, Colorado, and Santa Fe, New Mexico.
Ultimately, the U.S. Supreme Court will need to sort out the questions being raised by these cases. For many decades, protecting supporter confidentiality was perceived to be a cardinal virtue in the nonprofit community. Indeed, it was—and is—taught in schools specializing in nonprofit administration. That is because almost everyone who donates to a nonprofit group believes their donation will remain confidential unless they, the supporter, authorize it to be made public. No one thinks their name, address, and often employer will wind up on a government list just because they gave to a group that aired an opinion about a ballot measure or piece of legislation. Courts can and should protect the free speech rights of nonprofits and the free association rights of their supporters.
Until the Supreme Court rules, Judge Martinotti’s thoughtful opinion is a good start.
Matt Miller is a Senior Attorney at the Goldwater Institute.