Some things are worth protecting

Forcing disclosure of political donor identity violates First Amendment

Paul Diego Craney.

FREEDOM OF SPEECH and association, our most fundamental American rights, are perpetually under attack from powerful politicians, bureaucrats, unions, and far-left interest groups. They use campaign finance law as a weapon. Silencing the opposition is easier than debating important policy publicly.

Here in Massachusetts, these groups are working to silence and stomp out groups such as MassFiscal. Budget amendments, bills, and administrative regulations have been proposed and, in some cases, enacted, that erode the constitutionally protected freedoms that MassFiscal fights to preserve.

MassFiscal’s sister organization, the Fiscal Alliance Foundation, is taking steps to protect First Amendment freedoms of speech and association. We cannot guarantee the sun will rise tomorrow, but we can guarantee our donors will never be disclosed.

In the past two years, the Office of Campaign and Political Finance (OCPF) has become increasingly aggressive in asserting that more donors to advocacy groups be publicly disclosed — even when presented with evidence that the donations were made for general unrestricted organizational support (rather than for activities that elect or defeat candidates for office).

Donor disclosure is a complicated matter. Requiring candidates for office, political parties, and Super PACs to disclose their donors simply makes sense. The people have a right to know who may or may not be electing those in power. But requiring groups organized around issues to disclose lists of their supporters is bullying. The powerful politicians want to know who our friends are, a clear violation of freedom of association. Groups like ours have no votes to be bought or favors to grant. Influence, a serious business, is simply not an issue.

In January, OCPF proposed revisions to its existing campaign finance regulations. Many of the proposed changes are technical or non-substantive. One proposed change, however, is significant and concerning. OCPF is proposing to overhaul an obscure but important regulation that governs when the names and addresses of donors to 501(c)(4) and other tax-exempt entities must be publicly disclosed.

Organizations such as MassFiscal have successfully pushed back on unfair disclosure demands in the past, arguing that OCPF’s existing regulations do not authorize such a broad interpretation. Broad disclosure demands are nothing new. Southern racist politicians used the same arguments for donor disclosure to intimidate and harass members of pro-civil rights organization. Sixty years ago, the US Supreme Court unanimously ruled that the right to freedom of association protected the rights of these pro-civil rights organizations not to disclose their members. It’s easy to come up with modern day examples where the same abuses would take place.

OCPF has proposed to change the rules, and give itself broad discretion to require donor disclosure. One provision would give OCPF the authority to make a unilateral determination — without ever speaking to a donor — that the donor “had reason to know” how their donation would be used by the recipient organization, and to order disclosure of that donor’s name and address as a result. Another provision proposes eliminating the existing right of donors to present evidence and facts to OCPF as to why disclosure should not be required.

We believe a revision of this magnitude, which greatly expands OCPF’s purview, exceeds the original intent of OCPF’s authorizing legislation. A change like the one proposed should be made by the Legislature, not through a regulatory bureaucratic change.

Meet the Author

Paul D. Craney

Board Member & Spokesman, Massachusetts Fiscal Alliance
Not so long ago, in 1988, a similar bureaucratic regulation opened the union loophole, the most unfair campaign finance regulation in the country. Under it, unions can donate up to $15,000 to Massachusetts candidates, while individuals can only give up to $1,000 and employers cannot give anything at all. The loophole is currently undergoing a legal challenge by companies owned by MassFiscal’s founder Rick Green and board member Mike Kane.

MassFiscal wasn’t around in 1988 when the bureaucrats at OCPF created the union loophole. But we’re here now, and we will fight unfair regulations that tip the scales for or against a particular point of view.

Paul Diego Craney is a board member and spokesman for MassFiscal.

  • S. Adams

    Let’s review. Bureaucratic agencies in MASS enacting legislation of it’s own. Nothing new here. One of the most glaring is sales tax on motor vehicles. When you buy a vehicle, you are charged sales tax on the actual book value, regardless of condition, not the actual sales price. Actually, it is whichever is HIGHER, purchase price or book value. The actual bill of sale, the legal documented proof of purchase price, is only recognized if you got ripped off and paid too much. In which case the state gets more sales tax. Then and only then will that document be accepted. It never ends. Beacon Hill is sickening.

  • Mhmjjj2012

    In other words, Mass Fiscal Alliance wants to keep the dark money funding its activities…dark..very dark. The Salem News has an article featuring Mass Fiscal, “‘Dark money’ under scrutiny” characterizing Paul Craney’s organization as “…a conservative group backed by mostly Republicans, operates under a classification that allows it to raise and spend money on voter education but prohibits it from advocating for one candidate over another…” but Mass Fiscal uses mailers to attack Democratic lawmakers. That may be operating within the law but that probably wasn’t the intent of the law.

  • Freedom of speech requires a speaker. To object to being known can only mean some sort of duplicity is going on. One must have the courage of their convictions.
    If the unions ask their members, then the 15k isn’t a single person’s donation, but an aggregate of the group. Whereas when a business owner donates it is only a reflection of his/her own opinion. Owners are not a group, but obviously the Koch brothers, Mass Fiscal and others have found ways around their personal limitations.
    Please can we have some intellectual honesty?

  • Shane Mathews

    Paul thinks transparency is for other people.

  • jshore

    Looks like Paul Craney has forgotten the Massachusetts Fiscal Alliance mission, “Massachusetts Fiscal Alliance advocates for fiscal responsibility, transparency, and accountability in state government and increased economic opportunity for the people of our Commonwealth.” Certainly that applies to “dark money” too!

    • Mhmjjj2012

      So Massachusetts Fiscal Alliance is all about “transparency” except for when it comes to the financing of their operations.