One of These Things Is Not Like the Other: NAACP v. Alabama Is Not a Manual for Powerful, Wealthy Spenders to Pour Unlimited Secret Money into our Political Process

69 Am. U. L. Rev. 1395 (2020).

* Director of Campaign Finance Strategy, Campaign Legal Center. I am deeply grateful to Aseem Mulji and Maggie Christ for their invaluable contributions to this Article and to Solomon Miller for his helpful work on the early stages of this piece.

In Citizens United, eight of the Supreme Court’s nine Justices reaffirmed the Court’s earlier decisions holding that election-related transparency laws are constitutional. Those eight Justices agreed that voters have a right to know who is paying for pre-election ads that mention candidates—“[e]ven if the ads only pertain to a commercial transaction.” And they recognized that election spending “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

In the near decade since Citizens United was decided, lower courts have invoked the decision to uphold a wide range of federal and state disclosure laws, rejecting arguments urging a narrow interpretation of the decision. And the Supreme Court has declined subsequent requests to revisit its disclosure holding. In fact, the Court’s determination that disclosure requirements are constitutional was critical to the other part of Citizens United, in which a five-Justice majority invalidated the ban on independent, corporate-funded election expenditures. The Court held that disclosure is a “less restrictive alternative to more comprehensive regulations of speech” and predicted the decision would usher in a new “campaign finance system that pairs corporate independent expenditures with effective disclosure.”

Decisions from Buckley (1976) to Citizens United (2010) have continued to recognize a singular, limited as-applied disclosure exemption for groups facing a “reasonable probability” of threats, harassment, or reprisals. Historically, that exemption has been reserved for vulnerable groups like the National Association for the Advancement of Colored People (NAACP) in 1950s Alabama—organizations whose members faced violent retribution if their names were disclosed.

As attempts to invalidate or limit election-related disclosure laws have failed, well-funded dark money organizations are now seeking a back-door approach—claiming the narrow NAACP exemption for their own anti-transparency objectives. These new efforts generally ignore the factual context for which the NAACP exemption was recognized. They also dismiss the Supreme Court’s recognition that election-related disclosure rules promote the First Amendment rights of American voters to be informed about who is trying to influence their electoral decisions.

Introduction

In Citizens United v. FEC,¹ eight of the Supreme Court’s nine Justices reaffirmed decades of Supreme Court jurisprudence holding that election-related transparency laws are constitutional. Those eight Justices recognized that disclosure of election expenditures “enables the electorate to make informed decisions and give proper weight to different speakers and messages,” while also providing citizens with important information necessary to hold elected officials accountable.² The Justices agreed that voters have a right to know who is paying for pre-election ads that mention candidates, even if the ads do not explicitly advocate for or against the candidate’s election.³

Justice Kennedy’s majority opinion predicted that the Court’s disclosure holding, combined with the more controversial part of Citizens United, in which a five-Justice majority invalidated the ban on independent corporate- and union-funded election expenditures, would usher in a new “campaign finance system that pairs corporate independent expenditures with effective disclosure.”⁴ That prediction could not have been more off-base. While corporate election spending has surely been on the rise, existing laws do not come close to ensuring “effective disclosure,” and ongoing efforts seek to make the election transparency regime even less effective.

In particular, anti-transparency advocates and others who prefer to influence our politics in secret are pursing litigation, policy, and public advocacy campaigns to create a mechanism to influence the political process in secret, elevating political spenders’ preference for anonymity over the well-established right of citizens to make informed decisions at the ballot box. These efforts seek a dramatic expansion of a narrow, as-applied disclosure exemption generally reserved for vulnerable groups like the NAACP in Jim Crow Alabama or the Socialist Workers Party during the early 1980s—organizations that lacked substantial political and economic power and whose members faced violent retribution if their names were disclosed. Recent efforts to invoke that exemption as a basis for avoiding or negating disclosure rules generally ignore the factual context for which the exemption was originally recognized. Anti-transparency advocates also dismiss the Supreme Court’s recognition that election-related disclosure rules are uniquely important because they promote American voters’ First Amendment right to be informed about who is trying to influence their electoral decisions.⁵

This Article surveys the variety of strategies that powerful, anti-transparency advocates are employing to undermine election-spending transparency laws and co-opt the disclosure exemption for marginalized groups facing serious threats and harassment. First, it traces the history of the Supreme Court’s campaign finance disclosure decisions, which have uniformly upheld transparency requirements for spending on election-related advocacy. Second, it describes the origins of the disclosure exemption for vulnerable groups like the NAACP in the 1950s—groups whose members faced serious threats, harassment, or retaliation if identified and for whom disclosure thus compromised the exercise of First Amendment associational rights. It also explains how the Supreme Court and lower courts have applied this “NAACP exemption” in the context of election transparency laws. Third, it surveys recent efforts to diminish election spending transparency by distorting the NAACP exemption through litigation, policy reforms, and in public discourse. Finally, it explains how the current legal landscape already enables extensive evasion of existing campaign finance disclosure laws and it is thus more important now than ever to prevent efforts to misappropriate the NAACP exemption and transform it into a loophole that undermines citizens’ rights to make informed electoral choices.

I. Transparency Requirements Advance First Amendment Interests and Are a Crucial Tool for Preventing Secret Election Spending from Undermining Our Democracy

Informing citizens about the sources of money spent to influence elections is foundational to the American system of self-government.⁶ As the Supreme Court explained in Citizens United, “[t]he right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”⁷ Citizens cannot fully and effectively participate in the political process unless they have access to information about who supports which positions and why. Access to that information is also necessary to hold elected officials accountable, and to ensure officeholders remain responsive to the public. These principles underlie the Supreme Court’s campaign finance disclosure decisions, which collectively embrace transparency about election-related spending as a constitutionally permissible and effective means of protecting citizens’ First Amendment rights to make “informed choices in the political marketplace.”⁸

A. The Supreme Court Has Long Recognized the Democratic Value of Election-Spending Transparency

The first federal campaign finance disclosure law was passed in 1910⁹ and expanded in 1925.¹⁰ The law was weak and widely circumvented, though it survived a lawsuit claiming that it infringed the power of the states.¹¹ Congress, the Supreme Court held, may “pass appropriate legislation to safeguard [a Presidential] election from the improper use of money to influence the result.”¹²

Most of the statutory framework governing money in politics today was enacted as part of the Federal Election Campaign Act of 1971 (FECA), and its amendments in 1974.¹³ FECA’s early provisions broadly regulated “all money spent ‘in connection with’ or ‘for the purpose of influencing’ federal elections.”¹⁴ The statute included limitations on political contributions to federal candidates, public disclosure of contributions above a threshold, public funding for Presidential candidates, and the creation of a Federal Election Commission (FEC) to enforce the laws.¹⁵

When FECA was challenged in court, it resulted in a 1976 Supreme Court decision that continues to govern the constitutional parameters for how courts analyze a range of campaign finance requirements. In Buckley v. Valeo,¹⁶ the Supreme Court generally upheld federal transparency rules for political contributions and expenditures, while striking down monetary limits on those expenditures.¹⁷

The Court acknowledged the First Amendment implications of FECA’s original disclosure requirements,¹⁸ but explained that unlike limits on contributions and expenditures, disclosure requirements “impose no ceiling on campaign-related activities.”¹⁹ Disclosure laws are thus constitutionally permissible when there is a “substantial relation” between the information required to be disclosed and a “sufficiently important” government interest.²⁰ This intermediate standard of constitutional scrutiny—which is less demanding than the “strict scrutiny” standard that applies to political expenditure restrictions—is often called “exacting scrutiny.”²¹ The Buckley Court identified three “sufficiently important” government interests that election-related disclosure laws advance: (1) allowing voters to better evaluate candidates for federal office; (2) deterring corruption and the appearance of corruption; and (3) detecting other campaign finance violations, such as circumvention of FECA’s contribution limits or its ban on foreign interference in American elections.²²

In Buckley, the Court held that FECA’s disclosure requirements were substantially related to these important government interests and thus outweighed concerns about potentially infringing the exercise of First Amendment rights, “particularly when the ‘free functioning of our national institutions’ is involved.”²³

Since Buckley, the Supreme Court has repeatedly reaffirmed the constitutional permissibility—and democratic value—of requiring transparency in the context of electoral advocacy. Just two years after Buckley, the Court upheld transparency requirements in the context of ballot initiative elections and recognized that identifying who is behind advertising for ballot measures enables “the people . . . to evaluate the arguments to which they are being subjected.”²⁴

B. The Court in McConnell Recognized that Secret Election Spending Harms Citizens’ First Amendment Rights

A couple decades after Buckley, the Court revisited the constitutionality of political reporting and disclaimer requirements in the context of a challenge to the Bipartisan Campaign Reform Act of 2002 (BCRA).²⁵ BCRA, popularly known as the McCain-Feingold Act, was, in part, Congress’s response to the growing problem of independent groups who run election-related advertisements “while hiding behind dubious and misleading names.”²⁶ The Act extended FEC reporting requirements and “disclaimer” rules—disclaimers must provide information on the face of an ad about who paid for it and whether it is authorized by a candidate²⁷—for pre-election ads that mention a candidate and are broadcast in the jurisdiction where that candidate is running for office.²⁸ BCRA’s transparency provisions required organizations to reveal the sources of money used to pay for these “electioneering communication[s]”²⁹ so that the public could properly evaluate the election ads flooding the airways.

Senator Mitch McConnell and other plaintiffs claimed those requirements violated their First Amendment rights, but in McConnell v. FEC, eight Justices firmly disagreed.³⁰ As the Court recounted, the record in the case reflected that corporations and labor unions had been funding broadcast advertisements “designed to influence federal elections . . . while concealing their identities from the public.”³¹ Advertisements ran under misleading names like: “‘The Coalition-Americans Working for Real Change’ (funded by business organizations opposed to organized labor), ‘Citizens for Better Medicare’ (funded by the pharmaceutical industry), ‘Republicans for Clean Air’ (funded by brothers Charles and Sam Wyly).”³² “Given these tactics,” the Court questioned “how ‘uninhibited, robust, and wide-open’ speech can occur when organizations hide themselves from the scrutiny of the voting public.”³³ BCRA’s transparency requirements are not only constitutionally permissible, the Court held, they affirmatively promote the “First Amendment interests of individual citizens seeking to make informed choices in the political marketplace.”³⁴

C. Citizens United Confirms the First Amendment Value of Election-Spending Transparency Laws

In 2010, the Supreme Court once again revisited the question of whether, and to what extent, election-spending transparency requirements are permissible under the First Amendment.³⁵ To be sure, Citizens United is best known for the part of the opinion in which five Justices held that corporations and unions have a First Amendment right to spend unlimited amounts of their general treasury funds to influence elections.³⁶ But Justice Kennedy’s majority opinion explicitly linked that controversial holding to another part of the opinion in which eight Justices reaffirmed the Court’s holding in McConnell that requiring transparency of the sources of paid political speech promotes First Amendment interests.³⁷

Citizens United is a § 501(c)(4) nonprofit corporation that wanted to pay a cable company to distribute through video on demand a film about then Secretary of State and presidential candidate Hillary Clinton.³⁸ It also wanted to run on television a series of short advertisements promoting its film.³⁹ In claiming that BCRA’s reporting and on-ad disclaimer requirements violated the organization’s First Amendment rights, Citizens United urged the Supreme Court to broadly hold that BCRA’s disclosure requirements must be confined to ads that expressly advocate for or against candidates.⁴⁰ The group also suggested that its short promotional advertisements—some of which were just ten seconds long—should be exempt from disclosure requirements because they “only attempt[ed] to persuade viewers to see [its] film,” and should not be construed as electioneering.⁴¹

The Court rejected both arguments and reaffirmed its holding in McConnell that transparency laws advance First Amendment interests, including when applied to Citizens United’s short movie ads.⁴² The Court explained that prompt disclosure of election spending provides citizens with information necessary to hold elected officials “accountable for their positions and supporters” and to “see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”⁴³ The Court explained that the public’s “informational interest alone is sufficient to justify” application of BCRA’s transparency requirements “[e]ven if the ads only pertain to a commercial transaction” because transparency accords the electorate the opportunity to give proper weight to different speakers and messages.⁴⁴

In the decade since it was decided, lower courts have applied Citizens United to uphold a wide range of state and federal political transparency laws.⁴⁵

II. The Supreme Court Has Recognized a Limited, As-Applied Disclosure Exemption for Vulnerable Groups That Reasonably Fear Serious Threats and Harassment

In Buckley, McConnell, and Citizens United, the Supreme Court concluded that the government’s interest in ensuring citizens are able to make informed electoral choices outweighed concerns about the alleged burdens that disclosure requirements would impose on the plaintiffs’ political advocacy. While upholding the transparency requirements challenged in those cases, each opinion recognized that a future as-applied challenge to a disclosure law remains available to a group that “could show a ‘reasonable probability’ that disclosure of its contributors’ names ‘will subject them to threats, harassment, or reprisals from either Government officials or private parties.’”⁴⁶

That standard originated in a pair of earlier cases involving constitutional challenges to laws in 1950s Alabama and Arkansas at a time of deep political unrest and violence. These challenges arose in the early days of the modern Civil Rights Movement against laws that required the NAACP to provide government officials with lists of NAACP members.⁴⁷ As described below, those cases were decided on a thorough record cataloguing serious threats, violence, and other harassment.⁴⁸

A. Origin of the “NAACP Exemption”

In 1956, the Alabama Secretary of State required the NAACP to disclose the names and addresses of all of its members in the state, pursuant to Alabama’s regulation of foreign corporations.⁴⁹ Fearing for the safety of its members, the NAACP refused and was held in contempt by Alabama state courts.⁵⁰ The organization petitioned for review in the United States Supreme Court, asserting that Alabama’s disclosure requirement violated its members’ First Amendment rights of free association.⁵¹

The Supreme Court agreed with the NAACP: black civil rights activists in the southern states faced such severe threats that a requirement to publicly identify their names and addresses would likely deter them from remaining or becoming members of the organization.⁵² The record included threats directed at schools where African-American students were attempting to enroll; bombings and shootings directed against buses, homes of African-American leaders and ministers, black taxi stands, and black churches; and Ku Klux Klan demonstrations and cross burnings.⁵³

The Court concluded that Alabama’s disclosure mandate, in light of the record presented by the NAACP, posed “the likelihood of a substantial restraint upon the exercise by [its] members of their right to freedom of association” by inducing some members to withdraw from the organization and dissuading others from joining because of fear of the consequences of being publicly associated with it.⁵⁴ It further found that Alabama’s purpose—“to determine whether [the NAACP] was conducting intrastate business in violation of the Alabama foreign corporation registration statute”—was not “sufficient to overcome [the NAACP’s] constitutional objections.”⁵⁵

The Supreme Court considered a similar case two years later. In Bates v. City of Little Rock,⁵⁶ the cities of Little Rock and North Little Rock, Arkansas mandated disclosure of the local NAACP’s membership list as part of their new tax laws.⁵⁷ The NAACP again refused and challenged the requirements in court, invoking evidence of harassment, threats of violence, and economic reprisals against NAACP members, and arguing that public disclosure of membership would interfere with the freedom of association of NAACP members.⁵⁸ As it had found with respect to Alabama’s requirements, the Court concluded that “the threat of substantial government encroachment upon important and traditional aspects of individual freedom [wa]s neither speculative nor remote.”⁵⁹ It also found “no relevant correlation” between the municipalities’ taxing power and the ordinances requiring local NAACP branches to disclose and publish their membership lists.⁶⁰

In both cases, the Supreme Court engaged in a two-part analysis. First, the Court found that disclosure of NAACP member information would likely lead to the same kinds of actual and threatened violence and serious harassment that had already been well documented.⁶¹ Second, the Court found that the government interests underlying the Alabama and Little Rock disclosure requirements were insufficiently important to overcome the harm that the requirements would likely cause to the First Amendment associational rights of the NAACP and its members.⁶² As described below, courts have rarely reached similar conclusions in the electoral context, where transparency requirements serve important government interests and where, for the most part, the anticipated harm from disclosure is nowhere near as extensive or severe.

B. The NAACP Exemption in the Context of Electoral Transparency Laws

The Supreme Court first considered how the NAACP exemption applies to election-related disclosure requirements in Buckley. The Court acknowledged that “public disclosure of contributions to candidates and political parties will deter some individuals who might otherwise contribute” and “[i]n some instances, disclosure may even expose contributors to harassment or retaliation,” but it observed that in the distinct context of campaign finance transparency, “disclosure requirements—certainly in most applications—appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.”⁶³ The Court further recognized that “there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the ‘free functioning of national institutions’ is involved.’”⁶⁴

Given the importance of an informed electorate, as well as the anticorruption and law enforcement interests served by campaign finance transparency requirements, the Court refused to grant a blanket disclosure exemption for minor political parties.⁶⁵ Instead, it recognized the availability of as-applied relief where “the type of chill and harassment identified in NAACP v. Alabama can be shown.”⁶⁶ The Court clarified that a party “need show only a reasonable probability that compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals,” and explained that relevant proof “may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself.”⁶⁷

A few years later, the Court revisited the applicability of the NAACP exemption in the electoral context when the Socialist Workers Party (SWP) challenged the State of Ohio’s campaign finance disclosure requirements. Ohio’s laws would have required SWP, as a political party, to disclose the names and addresses of campaign contributors and recipients of campaign disbursements.⁶⁸ The record included examples of “threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members’ property, police harassment of a party candidate, and the firing of shots at an SWP office.”⁶⁹ In addition, the Court cited “evidence that in the 12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party membership,”⁷⁰ while private hostility made it hard for members to find employment.⁷¹ The record also showed that the FBI had been surveilling and disrupting SWP operations for years, including during the commencement of the lawsuit.⁷²

The Supreme Court invoked Buckley’s analysis of NAACP and considered both the probability of harm to SWP members and the importance of the state’s interest in disclosure. It found “substantial evidence of both governmental and private hostility toward and harassment of SWP members and supporters.”⁷³ It also found that as a “small” political party with only about sixty members in Ohio and “little success at the polls,”⁷⁴ SWP was unlikely to play a major role in politics or policy, rendering the state’s interest in disclosure relatively low.⁷⁵ The Court thus concluded that the balance tipped in favor of exempting SWP from Ohio’s disclosure requirements.⁷⁶

After Brown, the SWP sought and obtained an extension of its campaign finance reporting exemption through the Federal Election Commission’s advisory opinion process. A series of five successive advisory opinions effectively extended the reporting exemption that SWP had obtained through the Brown litigation for more than 30 years, through December 31, 2016.⁷⁷ But when SWP sought a new advisory opinion further extending the exemption beyond 2016, FEC Commissioners in a divided vote declined to approve the request.⁷⁸ SWP’s exemption thus expired at the end of that year. Commissioners who voted against extending SWP’s disclosure exemption noted the party’s increased electoral and fundraising success, found that the evidence submitted by SWP “demonstrates that harassment of the SWP’s supporters has steadily decreased over the years since its disclosure exemption was first granted,” and concluded that this recent evidence “does not indicate a reasonable probability that serious harassment and reprisals are likely to be inflicted on SWP supporters.”⁷⁹ The FEC has not issued any other advisory opinions exempting a group from federal campaign finance transparency requirements.⁸⁰

Nor has the Supreme Court, since Brown, found sufficient evidence of probable threats or harassment to overcome the government’s substantial interests in transparent elections.⁸¹ In McConnell, the Court distinguished the record before the Court from the record in Brown, agreeing with the district court that while some parties had expressed harassment concerns, there was a “lack of specific evidence about the basis for these concerns.”⁸² In Citizens United, the Court similarly referenced “recent events in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation.”⁸³ The Court expressed “concern” about these examples, but nevertheless rejected Citizens United’s challenge to BCRA’s transparency requirements, citing a lack of any evidence that Citizens United or its members were likely to face similar threats and observing, “[t]o the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation.”⁸⁴

Six months after deciding Citizens United, the Supreme Court issued another opinion reaffirming the constitutionality of transparency requirements “in the electoral context.”⁸⁵ In Doe v. Reed,⁸⁶ the Court considered a First Amendment challenge to a Washington State public records law that required public disclosure of the names and addresses of individuals who signed referendum petitions.⁸⁷ The particular referendum at issue concerned whether to extend certain benefits to same-sex couples, but the Court approached the case more broadly and focused “not [on] whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so.”⁸⁸ In a frequently cited concurrence, Justice Scalia noted the plaintiffs’ concerns that “disclosure of petition signatures may lead to threats and intimidation,” and suggested that while the State of Washington could keep petition signatures secret to avoid such consequences, it was not constitutionally required to do so, “[a]nd it may even be a bad idea.”⁸⁹ He opined, “[t]here are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”⁹⁰ Justice Scalia was concerned by the prospect of anonymous political campaigning and exercises of direct democracy through ballot initiatives and referendums “hidden from public scrutiny and protected from the accountability of criticism.”⁹¹ “This,” Scalia said, “does not resemble the Home of the Brave.”⁹²

Justice Scalia’s dissent in McIntyre emphasizes the limited scope of the NAACP exemption. To the question “whether a ‘right to anonymity’ is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense,” he concluded “[t]he answer . . . is clear: no.” McIntyre, 514 U.S. at 379. While cases, such as Brown, Bates, and NAACP, held that the disclosure of a person’s identity in “peculiar circumstances” would “unconstitutionally deter the exercise of the First Amendment,” those cases did not establish a right to anonymity or the right of all citizens to ignore the laws under challenge. Id.

Reed, and the Supreme Court’s campaign finance disclosure decisions that preceded it, make clear that an entity is not entitled to the NAACP exemption in the context of electoral transparency laws merely because of general claims of threats or harassment. These cases reflect the Court’s recognition of the crucial role electoral transparency laws play in our democracy and the high bar that a party must meet when it is seeking to deprive voters of important information that may affect their electoral choices.

C. Lower Court Decisions Underscore the Narrow Scope of the NAACP Exemption in the Campaign Finance Context

Lower courts have followed the Supreme Court’s lead and construed the NAACP exemption narrowly when it has been invoked to try to avoid electoral transparency requirements. To be sure, not every claim for the exemption has been rejected, but other successful claimants have had similar public profiles to either the NAACP or Socialist Workers Party. In a couple of cases in the early 1980s, lower courts granted disclosure exemptions to the Communist Party and an Illinois branch of the Socialist Workers Party.⁹³ In one case decided while the Brown litigation was pending, an Illinois district court exempted the local branch of the Socialist Workers Party after its Chicago office was firebombed and burglarized and the group had been surveilled by the Chicago Police Department.⁹⁴ In the other case, the Second Circuit exempted the Communist Party from federal campaign finance disclosure requirements, finding that it met Buckley’s high bar because it was a “disfavored minority part[y]” or “fringe organization[ ]” whose very existence would be threatened by disclosure.⁹⁵ Indeed, the Second Circuit cited various state and federal laws, still on the books, that subjected members of the Communist Party to civil and criminal liability, and concluded that the fear of serious reprisals was sufficiently grave to warrant the exemption.⁹⁶

Although these decisions granted disclosure exemptions to marginalized and targeted fringe political party organizations, lower courts have generally refrained from extending the exemption to other groups. In particular, lower courts have rejected claims by large, well-funded groups who would prefer to keep their donors anonymous or who claim that disclosure would expose them to protests and other harassment that does not nearly approach the scope or severity documented in cases like NAACP and Brown.

In ProtectMarriage.com v. Bowen,⁹⁷ for example, two political committees supporting California’s Proposition 8—which proposed an amendment to the California constitution defining marriage as only between a man and a woman⁹⁸—sought an exemption from the state’s campaign finance transparency laws. The plaintiffs alleged harassment against supporters of Proposition 8, including vandalism of political signs, angry protests, unsolicited phone calls, death threats, and various forms of economic reprisal.⁹⁹

Applying Buckley, the Eastern District of California found that the plaintiffs’ claims did not warrant an exemption from the state’s disclosure requirements.¹⁰⁰ The court invoked the Supreme Court’s determination that “disclosure exemptions were primarily intended to combat harms suffered by small, persecuted groups.”¹⁰¹ It also found that plaintiffs were far from a fringe organization, having convinced over seven million voters to support Proposition 8 (52.3% of the vote), raised almost $30 million, and organized a “massive movement” to successfully “legislate a concept steeped in tradition and history.”¹⁰²

The California district court also distinguished the plaintiffs’ evidence of threats, harassment, and reprisals from the “proportionality and magnitude” demonstrated in Brown and NAACP.¹⁰³ Plaintiffs offered relatively few instances of serious harassment as compared to the many millions who supported their cause.¹⁰⁴ The court found that the seriousness of the risk to plaintiffs paled in comparison to the systemic private and governmental reprisals faced by socialist and communist groups or the NAACP.¹⁰⁵ It explained that supporters of a “movement to recognize marriage in California as existing only between a man and a woman” were not similarly situated to the SWP or NAACP plaintiffs in Brown and NAACP; “Proposition 8 supporters promoted a concept entirely devoid of governmental hostility.”¹⁰⁶ The court was thus, “at a loss to find any principled analogy between two such greatly diverging sets of circumstances.”¹⁰⁷

Another critical distinction in the ProtectMarriage.com litigation was the fact that much of the plaintiffs’ evidence of “harassment” involved boycotts and angry protests, displays of dissatisfaction with plaintiffs’ cause that were themselves “forms of speech protected by [the First Amendment].”¹⁰⁸ As the court explained at an earlier stage of the litigation, a decision not to patronize a particular establishment or business, or to withhold economic resources is “an inherent right of the American people” and “individuals have repeatedly resorted to boycotts as a form of civil protest intended to convey a powerful message.”¹⁰⁹ This form of counter speech remains protected, the Supreme Court has explained, even where “it may embarrass others or coerce them into action.”¹¹⁰ Ultimately, the California district court concluded that Proposition 8 advocacy organizations did not qualify for a disclosure exemption.¹¹¹

A federal district court in Washington reached the same conclusion in an analogous context in Doe v. Reed. As described in Section II.B, at an earlier stage in the Reed litigation, the Supreme Court issued a broad holding that requiring disclosure of individuals who sign referendum petitions in general is permissible under the First Amendment.¹¹² When the district court subsequently reached the merits of whether mandatory disclosure of signatories to a state referendum to deny benefits to same-sex couples violated the First Amendment, the court found that Washington’s public records law was constitutional.¹¹³

As in ProtectMarriage.com, the Washington district court first determined that the plaintiffs—signors of a referendum petition to reject a bill granting new rights to same-sex partners—were not similarly situated to the “minor part[ies]” and “fringe organization[s]” that obtained exemptions in NAACP, Brown, and the related cases concerning the same or similarly situated parties.¹¹⁴ Next, the court considered the sufficiency of the plaintiffs’ evidence of threats, harassment, or reprisals, which included isolated accounts of angry speech, offensive gestures and insults, and threatening phone calls, among others.¹¹⁵ The court found that plaintiffs’ evidence did not rise to the “level or amount” presented in Brown and NAACP.¹¹⁶

These cases, among others,¹¹⁷ highlight three defining features of the disclosure exemption doctrine in the electoral context.

First, as-applied means as-applied. NAACP does not provide justification for invalidating generally applicable campaign finance transparency regimes in their entirety, nor does it support new blanket exemptions from campaign finance disclosure laws.¹¹⁸ A court’s determination of whether an exemption from campaign finance transparency requirements is warranted is highly fact dependent.¹¹⁹

Second, the analysis should consider whether the party seeking a disclosure exemption is a “small, persecuted group whose very existence depend[s] on some manner of anonymity,” i.e., whether it is similarly situated to the NAACP in the 1950s or the Socialist Workers and Communist parties in the 1970s and 80s.¹²⁰

Third, while the allegedly feared threats, harassment, or reprisals need only be reasonably probable, the nature of probable harm must be serious. The records in NAACP and Brown, for example, included evidence of systematic violence and repression faced by the NAACP and Socialist Workers Party for years.¹²¹ Particularly in the electoral context, where an exemption may result in voters being deprived of information relevant to their electoral decisions, the scope and severity of likely threats and harassment must be weighty and go beyond boycotts and protests that are themselves forms of speech protected by the First Amendment.¹²² It is against this legal backdrop that anti-transparency groups are trying to pry open and magnify this limited exemption.

III. Recent Efforts to Distort the Narrow NAACP Exemption into a New General Right to Privacy

Despite courts’ overwhelming recognition of the importance of ensuring voters have access to information about who is spending money to influence our elections, efforts to conceal political spending—especially the spending through corporations that was unleashed by Citizens United—are on the rise. In particular, powerful, well-funded groups are actively seeking to change the law through litigation, policy, and media campaigns that misappropriate the concepts of “threats and harassment” from NAACP into generalized arguments in favor of secret political spending.

A. Recent Lawsuits Seek Broad Decisions Invalidating Disclosure Laws by Misconstruing NAACP

In recent years, anti-disclosure groups have filed lawsuits in which they tried—and, in most cases, failed—to recast NAACP as support for claims that disclosure requirements are themselves a First Amendment injury. These lawsuits mischaracterize NAACP as embracing a broad constitutional right to donor privacy and largely disregard the factual context that was central to the decision. Fortunately, courts have generally rejected these arguments.

In 2014, the Center for Competitive Politics (CCP)—a § 501(c)(3) nonprofit organization that has since renamed itself the “Institute for Free Speech”¹²³—brought a facial challenge to a California rule requiring California-registered charities to disclose to state regulators the identities of their major donors as reported on a federal tax form (Form 990 Schedule B) filed by the charities with the Internal Revenue Service (IRS).¹²⁴ Neither the federal requirement nor the state rule requires the charitable donor information to be disclosed to the public.¹²⁵ CCP invoked NAACP and Buckley as purported support for its “novel theory” that the confidential donor disclosure requirement was “in and of itself” an injury to CCP’s First Amendment right of association because it would chill its donors’ participation.¹²⁶ CCP argued that the court should weigh that inherent injury when analyzing the constitutionality of the reporting requirement.¹²⁷

The Ninth Circuit rejected CCP’s argument.¹²⁸ The court acknowledged that disclosure requirements have an inherent potential to substantially infringe on the exercise of First Amendment rights in limited circumstances.¹²⁹ But that general inherent risk is not sufficient to warrant an exemption; rather, the plaintiff must demonstrate an “actual burden” on its right of association, and CCP made no such showing.¹³⁰ The court also rejected CCP’s extensive reliance on NAACP and its progeny, explaining that those “as-applied” cases were irrelevant to CCP’s facial challenge.¹³¹

One year later, another group brought a similar constitutional challenge to California’s Schedule B requirement, although this lawsuit sought an as-applied exemption rather than facial invalidation of the law.¹³² The plaintiff seeking as-applied relief was Americans for Prosperity Foundation (AFP Foundation), a § 501(c)(3) nonprofit connected to billionaire brothers David and Charles Koch.¹³³ Notably, AFP Foundation is related to Americans for Prosperity (AFP), a § 501(c)(4) political advocacy organization whose resources are so substantial, and whose political spending is so massive and widespread, some have suggested it “may be America’s third-biggest political party.”¹³⁴

In its challenge to California’s Schedule B requirement, AFP Foundation argued that the confidential disclosure rule would deter contributors by subjecting them to threats, harassment, and reprisals in the event that state regulators inadvertently leaked Schedule B to the public.¹³⁵ AFP presented evidence that some of its public supporters, including the Koch brothers, had endured boycotts, defamatory articles, personal threats, and other economic reprisals.¹³⁶ Ultimately, the Ninth Circuit concluded that the risk of inadvertent public disclosure was so slight that there was no reasonable probability that California’s confidential disclosure requirement would lead to any such reprisals.¹³⁷

The Second Circuit considered substantially identical claims challenging New York’s Schedule B disclosure requirements, and it reached the same conclusion as the Ninth Circuit.¹³⁸ The plaintiff, Citizens United, argued that New York’s confidential disclosure law, by itself, substantially infringed its First Amendment associational rights.¹³⁹ The Second Circuit disagreed, recognizing that although any disclosure rule “comes with some risk of abuse,” that “background risk” is not itself a constitutional problem, nor is disclosure “itself an evil.”¹⁴⁰ The court explained that “anonymity can protect both those whose unpopular beliefs might subject them to retaliation and those who seek to avoid detection (and consequences) for deceptive or harmful activities that governments have legitimate interests in preventing.”¹⁴¹

The Second Circuit rejected Citizens United’s attempt to use NAACP as a broad sword to strike down transparency laws on their face. Citing Buckley and Citizens United, the court noted that NAACP only offers a “shield of privacy” when disclosure results in actual restraints on associational rights—as measured by a reasonable probability that disclosure will result in serious threats, harassment, or reprisals—and when those actual restraints outweigh the public’s interest in disclosure.¹⁴²

Applying that standard, the Second Circuit also rejected Citizens United’s as-applied challenge, noting that the group’s evidence—“bare assertion[s]” of retaliatory targeting by the New York Attorney General—was a “far cry from the clear and present danger that white supremacist vigilantes and their abettors in the Alabama state government presented to members of the NAACP in the 1950s.”¹⁴³

Of course, the confidential disclosure requirements challenged in these cases are not entirely parallel to the election transparency requirements addressed in Buckley, Brown, Citizens United, and the cases addressing same-sex marriage ballot measures. The likelihood of threats and retaliation is arguably lower in the context of Schedule B rules, which require charitable organizations to disclose their major donors to government regulators, but not to the public. Those rules also promote some government interests that are not implicated by election-spending transparency laws, like enabling the government to ensure that charities and other nonprofit groups are complying with the requirements that entitle them to their tax exemptions. At the same time, Schedule B reporting requirements and campaign finance disclosure requirements both help government officials identify fraud and other violations of law, including campaign finance law,¹⁴⁴ while campaign finance disclosure requirements also reduce corruption and inform voters about the sources of election spending.

Regardless of these distinctions, these and other broad legal challenges to confidential Schedule B reporting, if successful, threaten to undermine campaign finance transparency requirements. Indeed, one district court has already suggested, in dicta, that our current divisive political climate, “marked by the so-called cancel or call-out culture,” may make it easier for AFP to obtain a disclosure exemption today than in the past.¹⁴⁵ The mere suggestion that such an enormously powerful organization¹⁴⁶ could be eligible for an NAACP exemption marks a concerning departure from established precedents.

B. Legislative and Regulatory Efforts to Eliminate Disclosure Requirements

Efforts to eliminate or reduce the scope of political transparency laws are not limited to litigation. Legislatures and agencies are also pursuing policy changes that would override existing disclosure requirements, reducing transparency about groups engaged in political spending and undermining regulators’ ability to detect and respond to violations of law.

In the past few years, for example, virtually identical anti-transparency bills were introduced in Michigan and Mississippi.¹⁴⁷ The bills included language broadly restricting the ability of state and local agencies to require § 501(c) nonprofit organizations to disclose information about their members, donors, and supporters—including even when the disclosure filings would not be made available to the public.¹⁴⁸ Importantly, the mandatory concealment of nonprofits’ information was not limited to charities and religious organizations established under § 501(c)(3) of the Internal Revenue Code, but extended to § 501(c)(4) “social welfare” organizations, § 501(c)(5) labor unions, and § 501(c)(6) trade associations, all of which engage in extensive amounts of political campaigning and lobbying activity.¹⁴⁹ As one columnist in Mississippi observed, shielding these activities from disclosure helps “those who want to buy candidates and influence elections who do not want their identities known.”¹⁵⁰

In December 2018, former Michigan Governor Rick Snyder vetoed the Michigan bill.¹⁵¹ He characterized it as “a solution in search of a problem” and pointed out that the Supreme Court’s longstanding NAACP decision already provides as-applied protection to a group facing a genuine prospect of harm as a result of disclosure.¹⁵² A few months later, on April 3, 2019, former Mississippi Governor Phil Bryant signed a nearly identical bill into law.¹⁵³

The IRS is also considering policy changes that would dramatically narrow the scope of tax-exempt organizations that are subject to IRS reporting requirements. Under the long-standing existing rule, each nonprofit group organized under § 501(c) of the tax code must confidentially report to the IRS the identity of all contributors who donate $5,000 or more per year to the organization.¹⁵⁴ The current rule—which created the federal Schedule B that California and New York require state charities to file with regulators in those states—serves the same interests of enabling the government to identify and address fraud and violations other laws that the Ninth and Second Circuits cited in upholding the California and New York requirements.¹⁵⁵

A recently proposed rule would eliminate the federal Schedule B reporting requirement for all tax-exempt organizations except charities incorporated under § 501(c)(3) and § 527 political organizations.¹⁵⁶ As explained in comments submitted by the nonpartisan Campaign Legal Center, a group of sixteen United States Senators, and others,¹⁵⁷ the proposed rule would thus enable groups like § 501(c)(4) social welfare organizations and § 501(c)(6) trade associations—organizations that serve as vehicles for hundreds of millions of dollars of political spending¹⁵⁸—to conceal the sources of that spending not only from the public but also from government regulators. The loss of this important oversight mechanism would make it much harder to detect abuses of the organizations’ tax exemptions, or to determine whether foreign entities are using such organizations to conceal unlawful attempts to interfere in American elections.¹⁵⁹

Anti-transparency groups, including organizations who unsuccessfully challenged the California and New York Schedule B requirements, are urging the IRS to adopt the proposed rule, arguing that existing disclosure requirements violate the First Amendment.¹⁶⁰ One has renewed the “novel theory” that donor disclosure requirements are “in and of [themselves]” First Amendment injuries, relying on the same flawed interpretations of NAACP and Buckley that the Ninth Circuit rejected.¹⁶¹ Another has invoked general concerns about threats, harassment, and reprisals, including “boycotts” and “public shaming,” while arguing that disclosure may discourage donations and “drain[] resources.”¹⁶²

Efforts to change the law—like the reforms proposed in Michigan and adopted Mississippi and the proposed new IRS rule—underscore the multi-front assault being waged against disclosure rules by organizations and their funders who would prefer to keep their political spending secret. These attacks on disclosure receive broad support from anti-transparency groups, including the American Legislative Exchange Council (ALEC), a corporate-funded organization¹⁶³ that pairs state legislators with corporate lobbyists to craft “model bills” for introduction in the states.¹⁶⁴ Legal reform efforts are also aided by a parallel public messaging project that seeks to reduce public support for political transparency rules¹⁶⁵ by frightening people with dramatized stories about alleged disclosure-induced threats and harassment.

C. Attacks on Political-Spending Transparency Through Misleading Public Messaging and Fear-Mongering

A coordinated messaging campaign is disseminating ominous stories about the supposed consequences of political donor disclosure laws. Although documented cases of harassment stemming from the disclosure of a political contribution record are exceedingly rare, these messages combine misleading stories with fear-based anti-transparency appeals.

For example, a group called People United for Privacy disseminates professionally produced videos warning of the supposed “dangers” of transparency.¹⁶⁶ People United for Privacy’s videos often combine examples of political donors claiming to have experienced harassment as a result of their donations with frightening hypothetical consequences of donor disclosure.¹⁶⁷ But the most frequent examples of “harassment” that People United for Privacy and its allies deploy do not actually relate to political donor disclosure.

For example, one video claims that “[i]n Wisconsin, Cindy A. had her home raided for support of union reforms,” and that “Erious J. was profiled in Oregon after using a #BlackLivesMatter hashtag.”¹⁶⁸ The Cindy A. example receives additional emphasis in the longer True Story: Wisconsin John Doe Victims video featured on its YouTube page,¹⁶⁹ which features hauntingly lit footage depicting a pre-dawn raid and Cindy A.’s retelling of her home being searched one morning. But that raid had nothing to do with disclosure of her political donations. Instead, her home was searched in connection with a probe into bid-rigging during Scott Walker’s pregubernatorial tenure as county executive, when Cindy A. served as one of his top aides.¹⁷⁰

Likewise, the “Erious J.” story has nothing to do with disclosing Erious J.’s political donations. As Oregon Public Radio describes, Erious J. was “caught up in digital surveillance by the [Oregon Department of Justice] because he used the #BlackLivesMatter hashtag and tweeted the well-known logo of the rap group Public Enemy,” and he later sued the state for racial profiling.¹⁷¹

In another misleading video, “Darcy O,”¹⁷² described being criticized and threatened during a high-profile case that involved the Goldwater Institute. “I walked away from this experience with a greater appreciation of the importance of being anonymous—of having your information be private,” she concluded in the video.¹⁷³ While “Darcy O.” may have been targeted based on her association with the Goldwater Institute, that association was not publicized because of her political donations. She was CEO of the organization. The people responsible for the activity described in the video identified her address through public property records.¹⁷⁴

Anti-transparency stories like these also frequently exaggerate the consequences of a donor’s disclosure. In one commonly invoked example, we learn that Margie Christofferson “lost her job” after being disclosed as a donor to the pro-Proposition 8 ballot measure committee, which supported amending the California constitution to define marriage as only between a man and a woman.¹⁷⁵ Stories about Christofferson cite the loss of her job, boycotts of her restaurant, and public criticism she experienced. But even setting aside that boycotts and criticism are protected by the First Amendment,¹⁷⁶ these stories omit that Christofferson, who was the restaurant owner’s daughter, returned to her job after voluntarily resigning for a brief period—she was not fired as the references to “losing” her job imply.¹⁷⁷ Now, she owns the restaurant.¹⁷⁸

Millions of political contribution records have been made public since the 1970s, yet as these examples illustrate, even groups that are highly motivated to highlight instances of harassment resulting from individuals’ political contributions seem to have a difficult time finding legitimate examples.

Conclusion

More than half a century of Supreme Court jurisprudence conclusively establishes that the government may constitutionally require transparency about spending to influence the American political process. More precisely, ensuring transparency about election-related spending—including who is bankrolling the groups that spend money on elections—promotes First Amendment interests by allowing voters to make informed decisions at the ballot box.

The Supreme Court has also recognized that in certain narrow circumstances, groups that lack political or economic power may face such substantial threats or harassment as a result of complying with disclosure requirements that a disclosure exemption is necessary to protect the groups’ ability to exercise their First Amendment right to associate. But such circumstances are limited and do not include donors’ mere preference to remain anonymous. Nor are generalized fears of boycotts, protests, and other First-Amendment-protected counter speech an adequate basis to keep the sources of political spending secret. Powerful, well-funded organizations like AFP are not similarly situated to groups like the NAACP in the civil rights era or the Socialist Workers Party in the early 1980s. AFP and other large, highly influential organizations do not need “the special protection of anonymity in order for [their] voice[s] or views to be heard.”¹⁷⁹

Finally, unique features of our current environment make effective political transparency requirements more critical today than ever before. Since the Supreme Court’s 2010 decision in Citizens United, it has become increasingly easy for corporations, special interests, wealthy individuals, and even foreign nationals to direct unlimited amounts of secret “dark” money into our elections.¹⁸⁰ The dramatic shift of political advertising away from broadcast media to the internet has also created new opportunities to conceal the sources of election spending, because many federal and state transparency laws have a digital blind spot that leaves most digital political ads unregulated.¹⁸¹ These developments mean it is already too easy to evade transparency laws. Yet efforts to strengthen campaign finance transparency requirements through legislation and regulation remain in limbo,¹⁸² while the multi-front assault on existing transparency regimes is escalating. It is thus more important now than ever to protect voters’ First Amendment rights by ensuring that the NAACP exemption remains the narrow exemption it was intended to be, rather than a new mechanism for wealthy special interests to influence the political process in secret.

One of These Things Is Not Like the Other: NAACP v. Alabama Is Not a Manual for Powerful, Wealthy Spenders to Pour Unlimited Secret Money into our Political Process

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