Donor privacy is dark money? Nonsense!

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The U.S. House of Representatives recently voted along near-party lines to prohibit the Internal Revenue Service (IRS) from collecting the names and addresses of major donors to 501(c)(3) and 501(c)(4) tax-exempt organizations. Next, it’s on to the Senate, where hopefully Democrats will remember their historic, American Civil Liberties Union-style roots and vote for the bill.

The House bill, H.R. 5053, actually corrects a mistake of a prior Congress that authorized a federal exception to the 1958 landmark civil rights case NAACP v. Alabama. Alabama’s attorney general was told by the Supreme Court that his demands for the names of members and donors to the NAACP in his state violated the right of private association. The court said, “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective … restraint on freedom of association.”

{mosads}This right is essential to Tocquevillian democracy, where people may join others to address issues that matter to them. The right of private association has been key to every important movement in America, whether it was to advance the civil rights of minority groups, win the vote and advance equality rights for women, oppose unpopular wars, and so on.

Opponents of the bill, however, have decried its backing by Koch-funded organizations, claiming it is intended to protect “dark money” in politics. We reply: Nonsense!

The bill protects donors to homeless shelters, food banks, battered spouse refuges, veterans assistance programs, animal rescues, organizations educating about and litigating to protect civil liberties, and any other tax-exempt cause or charity with a 501(c)(3) designation. While doing private good to aid those in need in our society, some of these organizations are also essential educators and advocates about public policy, and sometimes they say or do things our current political leaders don’t like.

By lumping in donors to these causes protected under the donor privacy bill with what they claim to be a bad influence in politics, opponents disparage true and worthy beneficence done for purposes of conscience. And what is America without protecting rights of conscience?

Further, the bill protects donors to 501(c)(4) social welfare organizations.
These groups enable individual Americans to speak in large groups for or against legislation or actions of the executive branch. This is the right to petition the government for redress of grievances, which is “political” but is also built into the First Amendment. Overstatements by opponents of donor privacy broadly insinuate these rights are sinister, which should offend most Americans.

Sometimes grassroots efforts must call out public officials. It would be ludicrous to suggest that Americans should lose the right of private association when their grassroots efforts name — and shame — the members of Congress, state legislators or local public officials sponsoring bad public policy. The political process is always flawed, but the failures and foibles are exacerbated when it is difficult to expose the elected officials who make bad policy. That’s censorship.

Grassroots efforts inform people of the dangers and barriers their elected officials are concocting in faraway capitals, or even in more local settings such as zoning boards, where rotten deals may be cloaked in the “smoke-filled” rooms of Washington. If those grassroots efforts are not worthy of the right of private association expressed in NAACP v. Alabama, then opponents of the donor privacy bill would be helping to keep Americans themselves in the dark.

Both traditional liberals and conservatives understand that donor privacy helps protect against retribution not just by members of the public but by government as well. In Brown v. Socialist Workers ’74 Campaign Committee, Justice Thurgood Marshall wrote, “The Constitution protects against the compelled disclosure of political associations and beliefs. Such disclosures ‘can seriously infringe on privacy of association and belief guaranteed by the First Amendment.’ ” And it protects against both “private and Government hostility.”

Attacking donor privacy by insinuating it has a negative influence on politics completely ignores its positive influence. It’s not just the right of liberals to band together through associations to criticize Republicans, or conservatives associating to criticize Democrats; donor privacy also protects liberals criticizing Democrats, and conservatives criticizing Republicans. Donor privacy also helps protect criticism of the IRS, the National Security Agency, Wall Street and other powerful institutions.

Whether it protects the Koch brothers or Michael Moore, conservatives or liberals, pro-this or anti-that organizations, donor privacy is essential to holding government officials accountable.


Craver, a liberal and a Democrat, is in the American Association of Political Consultants Hall of Fame. Fitzgibbons, a conservative and a Republican, is president of corporate affairs at American Target Advertising.


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