News: CJ Exclusives

Analysts: Moves To Force Donor Disclosure Would Chill Speech

Liberals and conservatives guilty of attacking 1st Amendment protections

DENVER, Colo. — They are 45 of the most consequential words in America’s founding documents, but the First Amendment to the U.S. Constitution is coming under repeated attack from liberal advocacy groups, regulatory agencies, and elected officials on both sides of the political aisle, according to an array of policy experts.

John Tillman, CEO of the Illinois Policy Institute, said the left is using intimidation and harassment such as the IRS scandal to “fundamentally change” American democracy, freedoms of speech and association, and the right to dissent, by intimidating those who donate to conservative think tanks, right-of-center causes, and Republican politicians.

Tillman was among several panelists at the State Policy Network’s 22nd annual meeting who warned about the escalating movement to erode protections guaranteed by the First Amendment.

“This almost sounds like hyperbole, and maybe a black helicopter or two, but it is nothing short of what authoritarian regimes do,” Tillman said. “They begin to try to control the media, and they begin to try to control the levers of dissent.”

Americans are not well informed on this subject, and liberals are “relentlessly indoctrinating the public that free speech is OK [within] limits, and … Washington shall decide what those limits will be,” Tillman said.

Research conducted by Dee Allsop, CEO of Heart+Mind Strategies, found that most Americans are passionate about the importance of free speech. On his research scale, any issue that scores in the mid-50s or higher is considered important to the public. Free speech scored 73.

That said, “Only one in four Americans feel that it’s under threat” and needs protective pushback, Allsop said. Moreover, only one in three Americans follow the policy debate about free speech issues, according to his research. What news they hear mostly involves stories about events such as protests at abortion clinics.

Public support of speech in the form of monetary donations to organizations and politicians is much weaker, Allsop said. He added there is a “very strong disposition” for a change in laws that would “require public disclosure of donations, and to place limits on the amount of money that can be donated.” Given that trend, he said, “This is not something that I would like to see put up to the people” for a vote.

He notes that two of three Americans “wrongly believe that you can make an anonymous donation to a political candidate,” and that misperception shapes opinion about all anonymous giving.

“If [censors] are able to take away our megaphone, if they are able to take away donor privacy, if they are able then to silence our dissent and our promotion of liberty, the very essence of liberty will be at risk,” Tillman said.

Often the goal is to force conservative advocacy and nonprofit organizations to disclose their private donor lists so that those individuals can be targeted for public ridicule or government investigation, the panelists agreed.

Liberal organizations have outflanked conservative groups with sophisticated social media campaigns and bloggers who ignite campaigns to regulate speech as issues arise. They are aided in their efforts by liberal mainstream media, said Rod Lowman. He is president and CEO of the Lowman Group, a strategic marketing and management research firm that has researched the trend.

The free speech assault is taking place despite a 1958 Supreme Court ruling in Alabama v. NAACP in which state officials attempted to force the NAACP to disclose its list of members.

The Supreme Curt ruled that contributors “are constitutionally protected from disclosure,” Lowman said. The key passage in the decision was “immunity from state scrutiny of membership lists is constitutionally protected to ensure the ability to associate freely with others.”

Speech regulators “want names of individual donors, which will chill free speech to the point if donors don’t stop donating, they’ll be harassed into not donating,” said Matthew Nese, head of legislative and policy outreach at the Center for Competitive Politics.

“There’s very much a war going on,” Nese said. When speech regulators talk about transparency, they mean enabling government to monitor the political speech of citizens, rather than encouraging citizens to serve as watchdogs of government.

It is instructive that anonymous donors accounted for only 4.3 percent of spending in the 2012 election cycle, Nese said. As of Sept. 18, the percentage for the 2014 cycle had fallen to 3.9 percent, “but yet [anonymous donations are] talked about as a scourge on democracy.”

Those seeking to limit free speech offer varying types of legislation in the states, he said. Some bills would require 501(c)4 advocacy groups and 501(c)6 trade associations to disclose the identities of donors in ways never done before, and some 501(c)3 nonprofit corporations could be sucked into those attempts.

There are bills that attempt to reclassify the nature of 501(c)4 and 501(c)6 corporations as a form of political action committees, forcing them to register as a political organization and release their donor lists.

And still other bills would require disclosure of the “original donor” of advertising. Because donor contributions are comingled in a large pool of funds, in many cases it would be impossible to determine which donation paid for an individual advertisement, so organizations would have to identify every donor, Nese said.

Michael Quinn Sullivan, president of Empower Texans, a conservative fiscal watchdog organization, said his group learned firsthand about a vindictive government.

“The real threat is not coming from Washington, D.C. The real threat to your organization is not [former revenue commissioner] Lois Lerner and the IRS” or other federal regulators, “but the real threat is the little agencies and commissions that exist in your states,” Sullivan said.

Lawmakers “get a little frustrated, and they start siccing those little obscure agencies on you, as happened to my organization,” Sullivan said. “Those are the agencies that are coming after you.”

His organization created a legislative scorecard to rate the spending records of Texas lawmakers. The scorecard revealed that some self-styled conservative lawmakers were not prudent fiscal stewards.

“They have come after us in a variety of ways. They’ve been after us with lawsuits, they’ve been after us with agency rules” that are little more than laws written by regulators, Sullivan said.

Texas is the “reddest of the red states, yet our state Senate passed legislation in our past session that would require all nonprofit groups to disclose the names of their donors” based on the mere suspicion they might be conducting political activity, Sullivan said.

A coalition of Democrats and Republicans approved the measure and sent it to Gov. Rick Perry. Perry vetoed it, “saying that it infringed on the freedom of association” and would have “a chilling effect on the freedom of speech.”

Rep. Lois Kolkhorst was among Republicans who voted for the donor disclosure legislation and had her support read into the state House journal. She then apologized to voters and renounced her vote after her husband, his company, and his business partners received audit letters from the IRS. They believed the scrutiny resulted from their donations to Tea Party groups and pregnancy crisis centers.

But attacking donors to nonprofits is only one method would-be censors are deploying to regulate speech, Sullivan said.

Texas Speaker of the House Joe Straus recently said legislation is needed to “define who is a legitimate journalist, that it is the responsibility of state government to make sure that acceptable people are speaking on public policy issues,” Sullivan said.

“This is a big issue that’s going to get bigger,” Lowman said.

Indeed, Nese said, more than 20 states are considering disclosure bills or regulatory rulemaking in 2015 to circumvent the Alabama ruling protecting free speech and donor lists.

Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.