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Overzealous Campaign Disclosure Laws Can Stifle Debate and Endanger Private Citizens

Erik Stanley [Senior Legal Counsel, Alliance Defense Fund]: "The Citizens United v. Federal Elections Commission case is pending for decision before the US Supreme Court, and the case raises some serious constitutional questions. ADF filed a friend-of-the-court brief focusing on one specific - and highly important - portion of the case.

The primary issue in the case is whether a film, Hillary: The Movie, is an "electioneering communication" in violation of the Bipartisan Campaign Finance Reform Act (BCRA). A subsidiary issue in the case is related to section 201 of the BCRA. That section requires any corporation that expends more than $10,000 on an "electioneering communication" to report those expenditures to the FEC and to disclose the identities of donors who contributed more than $1,000. ADF argues in its brief that the reporting and disclosure requirements of section 201 are unconstitutional. And the reason is not what those who believe in "vast, right-wing conspiracies" might think.

ADF has been intimately involved in the ongoing battle to protect marriage in California. As a part of that battle, ADF witnessed the destructive impact of overzealous disclosure laws. During the 2008 election cycle, California voters approved Proposition 8 protecting marriage as the union of one man and one woman. California's election laws require a proposition campaign committee to report and disclose the identity of any donor who contributed more than $100 to a proposition campaign. Opponents of the campaign took great advantage of this, and after voters approved Proposition 8, a backlash ensued against those who supported the campaign.

As the ADF brief filed in the Citizens United case explains, "Supporters of Proposition 8 have been subjected to threatening and harassing phone calls, e-mails, and postcards. Some of the phone calls and e-mails have been accompanied by death threats." The brief quoted one such e-mail, sent to a church, that stated, "Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter....I've also got a little surprise for Pasor [sic] Franklin and his congregation of lowlife's [sic] in the coming future....He will be meeting his maker sooner than expected....If you thought 9/11 was bad, you haven't seen anything yet."

Beyond e-mails and death threats, churches received envelopes containing a suspicious white, powdery substance; individuals who contributed a small amount in support of Proposition 8 were forced to resign from their jobs; businesses were targeted for harassment and picketing; churches have been vandalized, spray-painted with epithets such as "PROP H8TE"; and one group conducting a prayer walk was physically assaulted. All of these individuals gave very small amounts to support Proposition 8 but nonetheless have been subjected to retaliation and violent censorship. Perhaps most worrisome to Proposition 8 supporters is a Web site that contains a Google map pinpointing their homes.

The ADF brief points out that electoral discourse cannot occur under such conditions. Compelled disclosure laws such as California's and section 201 of the BCRA stifle debate, censor electoral discourse, and do not accomplish any important governmental interest. Indeed, some of the supporters of Proposition 8 have testified in court that they will likely not support another ballot initiative in the future if their names will be disclosed to the public. In its brief, ADF urges the court to take into account these recent acts as a result of compelled disclosure laws like section 201 and requests that the court find section 201 unconstitutional. Electoral discourse should be robust and free and not stifled and censored by such laws."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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