Amendment donors should stay private

  • Article by: PETER J. NELSON
  • Updated: October 10, 2011 - 6:19 PM

An Oct. 6 editorial praised the Minnesota Campaign Finance Board's recent opinion requiring the disclosure of the source of certain donations to support or defeat ballot questions ("Voters should know amendment donors").


91 yr old Florence Jackson's hands are poised over a ballot as she gets ready to cast her vote in the election a month early as absentee ballot in the basement of First Christian Residence in S Mpls.

Photo: Richard Sennott, Star Tribune

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The editorial, unfortunately, failed to acknowledge the difficult and important issue at stake, focusing entirely on the virtue of transparency without ever mentioning how transparency can conflict with First Amendment speech, association and privacy-of-belief rights.

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.

In my election law seminar in law school, I recall an interesting discussion on the impact of disclosure on professors. Whether the threat to their job is real or perceived, politically conservative professors tend to hide their beliefs until they get tenure. Disclosure, of course, compromises their right to keep their politics private. The Supreme Court has protected groups like the NAACP when there was a reasonable probability of threats and harassment.

The burden of disclosure on First Amendment rights is even greater when tied to a single, controversial issue on a ballot. It's one thing to be linked to the beliefs of a candidate or a party when no one expects agreement down the line; it's quite another thing to be tied to a single issue where there is no question about your position.

Consider the professor again and the issue over the upcoming ballot question on the definition of marriage. It doesn't take much imagination to see how disclosure could put tenure at risk or compromise relationships with students. Or consider a person with a firm belief in the sanctity of marriage between a man and woman, who yet enjoys strong business relationships with homosexual clients and colleagues.

Acknowledging that disclosure can seriously infringe First Amendment rights, the Supreme Court has ruled that disclosure must be justified by a "sufficiently important" government interest.

But there is only a slight government interest in disclosing contributions in support or opposition to ballot questions -- in comparison with contributions to candidates. When it comes to ballot questions, there is no danger of a corrupting quid pro quo exchange for political favors because the vote is on an issue, not a candidate.

The Star Tribune argues that another government interest in disclosure is to "help Minnesotans evaluate the messages." But even this government interest is diminished in the case of a ballot question.

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.

Legitimate concerns over money spent to influence ballot questions could be addressed in far less constitutionally burdensome ways. Say, a requirement to report the percentage of out-of-state contributions, or disclosure only of those who contribute more than a certain percentage of the total.

The courts should scrap the current law and send the Legislature back to the drawing board.


Peter Nelson is director of public policy at the Center of the American Experiment in Minneapolis.

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