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.