It should be one of the cornerstones of giving that if people want to give anonymously they should have the right to do so. Isn’t anonymous giving a good thing? If people want to give—particularly if they want to support controversial causes—shouldn’t they have the right to do so?
But as James Piereson notes in this piece from the Weekly Standard, the right to give anonymously is being steadily eroded. If donors were forced to divulge their donations, the end result would be fewer donations. This would make militant leftists very happy, since fewer donations would mean increased government power. But removing donor anonymity would be bad for democracy.
Piereson, a fellow at the Manhattan Institute and president of the William E. Simon Foundation[1] notes that the Supreme Court first addressed the issue of donor privacy in 1958. In NAACP v. Alabama, the state of Alabama tried to obtain the lists of members of the NAACP with the aim of disrupting or shutting down the organization in that state. The Court unanimously declared that the state had no right to the lists, because making them public would mean that NAACP members would face “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility” that would compromise the civil rights organization’s members’ “right to freedom of association.” The justices based their claims on the Due Process clause of the Fourteenth Amendment.
In Buckley v. Valeo (1976), the Court declared that donor lists also enjoyed Constitutional protection. Following Citizens United v. Federal Election Commission (2010), the left decided the best way to fight back was to publicly shame donors, since the decision overturned most spending limits but left the donor disclosure requirements of the McCain-Feingold bill intact. As we’ve seen in the recent incidents involving Charles Murray at Middlebury College and Milo Yiannopoulos at the University of California (Berkeley), the left now believes in rule by the fist. Since they no longer believe in free speech or even argument, their goal is to intimidate donors into silence.
Goldwater Institute attorney Jon Riches chronicles many of the abuses the left has made against donors in this 2015 issue of Organization Trends, including repeated harassment of donors and organizations who supported Wisconsin Gov. Scott Walker’s successful 2011 campaign against the unions.
The left claims that they have to intimidate donors because there is a flood of unaccountable “dark money” in the political marketplace. But most of the money involved in political campaigns isn’t dark, since donors to political campaigns have to make their names public, and organizations that pay for political advertisements have to tell viewers who they are. Piereson cites Federal Election Commission data that about $7 billion was spent on political campaigns in 2016, with only about $148 million or 4 percent “raised and spent by issue-oriented non-profit organizations that are not required to disclose the names of donors.”
“Advocates for donor disclosure,” Piereson writes, “are thus deploying scorched earth tactics to address at worst a minor problem.”
Piereson cites a 2007 Institute for Justice report where a research team led by Dick M. Carpenter II that included a poll of voters in six states conducted after he 2006 elections. The voters surveyed favored the issue of donor disclosure abstractly, agreeing by a 82-15 margin that donors who contribute to ballot access campaigns should have their identities disclosed. But when the matter was personalized, voters thought their personal information should remain private. They said by a 56-40 margin that their names should not be posted on the Internet—and, by a 71-24 margin, said that their employers’ identities should not be made public.
The disclosure case that prompted Piereson’s article is Independence Institute v. FEC. In 2014 the Independence Institute, a Colorado think tank, wanted to launch a campaign to encourage the state’s two senators to support criminal sentencing reform. The ads did not endorse or oppose a political candidate. The Federal Election Commission ordered the institute to disclose their donors since the ads named a senator 60 days before an election. The think tank challenged the ruling, but lost in the D.C. Circuit Court. In February the Supreme Court declined to consider the case, allowing the lower-court ruling to stand.
Another case that could be decisive is Americans for Prosperity Foundation v. Becerra. California Attorney General Kamala Harris in 2014 demanded that all nonprofits raising money in that state had to disclose the lists of their donors. The Americans for Prosperity Foundation sued and won, but the decision stated that it only applied to the foundation. All other nonprofits fundraising in California would still have to disclose their donors. The foundation has continued their suit, but since Harris was elected to the Senate, it’s now against Harris’s successor, Xavier Becerra. The Ninth Circuit is currently considering the case.
One wishes that the left, instead of trying to suppress speech, would try to respond to the arguments conservatives make instead of trying to silence them. Surely it is more important to focus on what is said than obsess over who is paying the bills.
Liberals should be reminded of Justice Oliver Wendell Holmes’s 1919 dissent in Abrams v. United States. In 1918, some anarchists and socialists distributed fliers in Greenwich Village denouncing the U.S. for intervening against the Russian Revolution. They were arrested and convicted of espionage. The Supreme Court, by a 7-2 margin, upheld their conviction.
Justice Holmes forcefully dissented, stating debating the leftists’ ideas was a better solution than jail time. “The ultimate goal desired is better reached by free trade in ideas,” he wrote. “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”
It is ideas that matter in politics, not who signs the checks to pay for them.
Note: Readers interested in more good writing on the issue of donor anonymity should look at this post from 2011 by my colleague Scott Walter.
[1] I have done editing for the Manhattan Institute, which published my monograph By Their Bootstraps. The Simon Foundation once hired me to write an op-ed.
Photo credit: MitchellShapiroPhotography via Visualhunt / CC BY-NC-ND
