Editorial: Groups should not be forced to reveal donors

The uberliberal 9th U.S. Circuit Court of Appeals, whose jurisdiction includes Nevada, recently struck another blow against free speech, saying the state of California may force non-profits to reveal their donors.

According to The Wall Street Journal, in 2016 a federal judge ruled that the Americans for Prosperity Foundation did not have to give its donor list to the California attorney general’s office. 

Judge Manuel Real agreed with the foundation’s lawyers that the state had no legitimate law-enforcement interest in obtaining the names. He also said that the attorney general’s failure to keep donor names confidential subjected donors to a risk of harassment and retaliation.

The 9th Circuit panel shrugged this off and found the attorney general had a “strong interest” in obtaining donor names in order to investigate potential fraud.

This is significant for Nevada because there is a law on the books here that says any group that engages in “express advocacy” in elections must register with the Secretary of State and report donors and expenditures. 

In 2013 a Carson City judge fined a Virginia-based group called Alliance for America’s Future (AAF) more than $100,000 for airing television commercials praising Brian Sandoval’s conservatism during the gubernatorial campaign of 2010. Though the group argued the law was unconstitutional under the First Amendment, the judge found in the penumbra of the Constitution a whole new right.

He wrote, “No amount of civil penalties can redress the injury to Nevada voters caused by refusal to timely provide them with the information to which they are entitled, thus there is no adequate remedy at law.” 

He ruled the voters are entitled to the names of donors who sponsored the message, which would have been a surprise to James Madison, John Jay, Alexander Hamilton and Thomas Paine, all of whom wrote anonymously. 

In 2014 AAF reached a settlement with Secretary of State Ross Miller before the case reached the state Supreme Court. The group paid a $40,000 fine, registered as a political action committee and filed contribution and expenditure reports. 

Even though the U.S. Supreme Court in Citizens United v. FEC let stand the requirement under McCain-Feingold that donors be revealed, Justice Clarence Thomas made a compelling argument that it is clearly an abridgment of free speech  rights to force people to surrender their right to anonymously express their views about elections, candidates and issues with donations to like-minded groups.

Thomas’ dissent concluded that such laws had spawned a cottage industry that uses forcibly disclosed donor information to intimidate, retaliate, threaten and boycott individuals and businesses with whom they disagree. 

Thomas wrote, “The disclosure, disclaimer, and reporting requirements in (the law) are also unconstitutional. … Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information …’”

In the recent California case one of the groups siding with the foundation was the NAACP. In 1958 the U.S. Supreme Court ruled that the state of Alabama could not force the NAACP to reveal its donors, citing the potential for intimidation and violence against donors. 

But the 9th Circuit panel dismissed this concern. Though the panel admitted, “The Foundation’s evidence undeniably shows that some individuals publicly associated with the Foundation have been subjected to threats, harassment or economic reprisals,” it shrugged this off by concluding, “Such harassment, however, is not a foregone conclusion.” 

What if the threats had been to the judiciary?

Americans for Prosperity has said it will seek a rehearing before the full 9th Circuit, and appeal to the U.S. Supreme Court if that fails. By all means appeal, and we urge the Nevada attorney general to file a friend of the court brief in support.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

9th U.S. Circuit Court of Appeals in San Francisco (Getty Images via WSJ)

8 comments on “Editorial: Groups should not be forced to reveal donors

  1. Anonymous says:

    Uncle “Justice” Thomas wants secrecy in donations?

    I wonder why?

    Maybe he figures that $500,000.00 that he and his wife received from the people behind Citizens United, money that he hid from the government by not reporting on his tax return, while he was sitting to decide the Citizens United case (you may recall him as the deciding vote in that case) maybe he figured that a different donor,mcould funnel money to he and his wife,that he wouldn’t report, and would be able to keep secret from the government again?

    I’m sure that’s what Thomas Paine, and James Madison would have wanted though.

    Geez.

  2. Bribery is a crime. Prove it.

    Thomas Jefferson was an anonymous backer of Philip Freneau’s National Gazette, which savaged President Washington while Jefferson was in his cabinet. Would he have supported forcing donors to be revealed?

  3. Deleted says:

    Prove what? Uncle “Justice” Thomas ADMITTED that he and his wife got the money from the Citizens United group, and that he failed to report it (because “he couldn’t understand the law about reporting a spouses income” no less)

    And he REFUSED to recuse himself and then cast the deciding vote.

    Which part do you want proof of?

  4. Rincon says:

    Because of Citizens United, this Koch funded political advocacy group can promote any candidate of their choosing, The fact that it’s funded by the Koch brothers alone is invaluable to anyone who receives their propaganda. Without that knowledge, it is very easy for this and other propaganda generators to fool the people of this nation.

    it is in the public interest to know funding sources. The Constitution guarantees free speech, not anonymous free speech. Big money runs this country already. Putting voters into a state of ignorance weakens their position relative to the rich even more.

    I’m interested to see the rebuttal to the above statement by Deleted.

  5. Deleted says:

    Rincon you certainly won’t see a rebuttal as to the facts posted about Uncle Thomas because they are simply the facts.

  6. Rincon says:

    The silence is deafening.

  7. Anonymous says:

    Here’s why Rincon:

  8. deleted says:

    And this:

    “But the Thomases came under particular scrutiny after POLITICO revealed that, while the Supreme Court was deliberating over the Citizens United case, Liberty Central had received a $550,000 anonymous contribution.

    Common Cause, in a letter to the Justice Department, suggested that Thomas should have recused himself from the case and charged that “the complete lack of transparency of Liberty Central’s finances makes it difficult to assess the full scope of the ethics issues raised by Ms. Thomas’s role in founding and leading the group.”

    In addition, in a letter to the Judicial Conference, Common Cause pointed out that Justice Thomas had failed to report on his disclosure filings his wife’s income over the past decade, prompting the judge to amend 13 years of reports to indicate sources — though not amounts — of his wife’s income.”

    Read more: http://www.politico.com/news/stories/0211/48812.html#ixzz5SMRTEl6B
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