February 26, 2016

February 26, 2016 | Commentary on Elections, Civil Society

Forced Donor Disclosure Is Bad for Democracy

Many don’t seem to appreciate something that other countries envy: The American experience includes no coup d’etat. For more than 200 years, after every election, each of elected leaders has peacefully turned over the reins of power.

Few countries can claim such a record. Despite our divisions, we remain a stable democracy in which we are free to debate and argue — almost always without violence — the paths we should follow as a nation. Underpinning that stability is the First Amendment, which protects our right to advocate and contribute money to the candidates and causes we believe in.

It includes our right to band together in associations — to join organizations of like-minded people, whether we find them in the National Rifle Association or the Sierra Club. Such organizations elevate the voice of the average American, helping each be heard on issues important to them.

That is why it is concerning that self-styled “reformers” such as California Attorney General Kamala Harris want to force nonprofit advocacy organizations to hand over their donor lists to the government when they engage in political speech and policy discussions that might affect an election.

Coming together in associations is a constant in the American experience. In 1835, Alexis de Tocqueville noted that “Americans of all ages, all conditions, all minds constantly unite” in associations for the purpose of “bringing to light a truth or developing a sentiment.” That tradition is as true today as it was then.

Forcing associations to publicly report their supporters to the government will chill speech and diminish free expression in America. Unlike former Mozilla CEO Brendan Eich, most Americans don’t have deep financial resources to fall back on if they’re driven from the workplace because they hold unpopular views. Mr. Eich, who founded Mozilla, was forced out because he “dared” to make a modest contribution to a politically incorrect state referendum on same-sex marriage.

Many workers belong to organizations that their boss disapproves of. How many are willing to risk losing a job because of that membership? Many if not most workers would opt to withdraw from civic life and keep the paychecks coming.

In 1958 in NAACP v. Alabama, the U.S. Supreme Court stopped Alabama from forcing civil rights organizations to disclose their donor lists because of their political advocacy. As the court said then, “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” According to the court, it was “hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as” other forms of coercive government action.

As Justice Clarence Thomas said in 1995’s McIntyre v. Ohio Elections Commission, protecting anonymity — for private speech — is inherent in the phrase “freedom of speech, or of the press,” as the founding generation understood that phrase. Privacy was essential, according to 18th-century writers, to avoid reprisals or intimidation by private parties or by government officials. A Philadelphia editor said in 1787 that requiring someone who expressed an unpopular opinion to reveal his name was like saying to him: “Give me a stick, and I will break your head.”

The right to express one’s opinion includes the right to do so privately and anonymously, and in particular through membership in (and donations to) an organization that also advocates that opinion. That right needs rigorous protection in the 21st century, where modern technology and social media has greatly enhanced — to our detriment — the ability to harass, intimidate and badger those who hold unpopular opinions.

Contrary to the claims of critics, forced disclosure will not improve our democratic process. Donor privacy has always been an honorable and essential part of our American tradition of advocacy and dissent. It is protected by the Constitution, and it should remain that way.

 - Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Elections, Civil Society

Originally appeared in The Washington Times