Arguments that limiting donor disclosure causes political polarization

	Donor privacy and disclosure policy
Taxonomy of arguments
	• Disclosure of nonprofit donor information to governments; • Disclosure of nonprofit donor information to the public; • Disclosure and political polarization
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This article is one of 10 that described arguments about donor privacy and disclosure policy between 2019 and 2023. This article may not reflect subsequent developments in arguments about donor privacy and disclosure policy. For more on Ballotpedia's past donor privacy and disclosure policy coverage, click here.

Those arguing that limiting donor disclosure causes political polarization say it allows donors to have an outsized influence on American politics, erodes the public’s trust in government and democratic institutions, makes political communications more opaque, and creates incentives for controversial ideas to spread in the public square.

Click on the arguments below to see statements from opponents of disclosing nonprofit donor information to governments:

Undisclosed spending by nonprofits has allowed donors to have an outsized influence on American politics
The influence of undisclosed spending has eroded the public’s trust in government and democratic institutions
Not requiring donor disclosure has made political communications more opaque
Limiting donor disclosure creates incentives for controversial ideas to spread in the public square

Argument: Undisclosed spending by nonprofits has allowed donors to have an outsized influence on American politics

In a 2021 amicus brief filed in the Americans for Prosperity v. Becerra case, a group of Democratic members of the United States Senate wrote: “Citizens United opened the door to unlimited political spending by powerful influencers. Rampant violation of that decision’s transparency predicate has allowed such influencers to wield that power anonymously, through dark money expenditures. The next goal, as the arguments by Petitioner and many amici make plain, is for dark-money contributors to secure broad constitutional protection of their anonymous influence, so they can attack any and all disclosure requirements in other contexts — a ‘moon shot’ to lock in dark money’s hold on our politics and policymaking, possibly forever. . .Dark-money donors can create a cascade of downstream entities, effectively spending far more than 50% of their secret political funding on express campaign influence, all free from disclosure and subject to tax benefits. Thus influencers maximize their impact on our politics while minimizing their visible footprint.”^[1]

Center for Responsive Politics, a nonprofit that “tracks the effects of money and lobbying on elections and public policy,” argued in “Dark Money Infiltrates Elections”: “Citizens United suddenly and dramatically increased the power of dark money groups—namely nonprofit groups that are not required to disclose their donors — to directly influence federal elections. These secretive groups spent $963 million on elections over the last decade without informing voters who paid for their ads.“^[2]

Argument: The influence of undisclosed spending has eroded the public’s trust in government and democratic institutions

Chisun Lee, writing for the Brennan Center for Justice, whose mission "focuses on democracy, criminal justice, securing the balance of power, and protecting fundamental freedoms while keeping Americans safe,"-- argues that “Americans deserve to have confidence that decisions about who builds bridges or treats drinking water are based on the most qualified, competitive bid – not who gives the most to an elected official’s nonprofit. For this reason, we recommend a straightforward set of laws to bring transparency to these nonprofits and limit the influence of those with specific business interests before government, and we’re urging legislators across the country to adopt it.”^[3]

Writing about nonprofit donor disclosures and the Americans for Prosperity v. Becerra case, Matt Ford wrote in The New Republic that the case raises issues about how the First Amendment, freedom of association, and political spending interact: “There’s an underlying dispute over the level of scrutiny that courts should apply when state and local governments seek internal records from politically active groups. That technical legal argument, however, feels almost secondary to the question that looms over the case. The justices are not strangers to America’s partisan divides. The Supreme Court has arguably shaped and been shaped by those chasms more than any other institution. If it agrees to hear the case, it’ll also have to decide whether civically engaged citizens can still trust their political opponents to operate in good faith when they hold the levers of power in the state of California—and by extension, the nation.”^[4]

Argument: Not requiring donor disclosure has made political communications more opaque

In a 2021 amicus brief filed in the Americans for Prosperity v. Becerra case, a group of Democratic members of the United States Senate argued: “The flotilla of anonymously-funded and largely industry-aligned nonprofit organizations filing amicus briefs in support of Petitioner should set off alarm bells that something bigger than California’s tax disclosure law is at issue. The dots are not hard to connect. The bigger prize being sought is blanket constitutional protection of dark money and secret influence.”^[1]

Jessica A. Levinson, a professor at Loyola Law School and former president of the Los Angeles Ethics Commission, wrote in a 2018 opinion piece for NBC News, “What is the difference between a social welfare organization and a political committee? And the short answer is: the need to disclose donors to the public. While social welfare organizations do not have to publicly disclose their donors, because purportedly their primary purpose is not to try to influence our candidates or our votes, political committees do...So when a social welfare organization like the NRA, the American Association of Retired People (AARP), or Planned Parenthood spends money in political campaigns, they do not have to disclose their donors to the public. When a political committee like Emily’s List or Emerge America spends money, they do. Hence many donors, not to mention recipients, find it advantageous to use social welfare organizations when spending money in political campaigns.”^[5]

Argument: Limiting donor disclosure creates incentives for controversial ideas to spread in the public square

Justice Antonin Scalia expressed views on the importance of transparency and public disclosure outside the context of nonprofit donor disclosure in connection with the public’s right to know information on who is sponsoring and organizing petitions.

Writing in a concurring opinion in Doe v. Reed (2010), a case addressing the Petition Clause of the First Amendment, Justice Scalia contended: “And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”^[6]

Overview of arguments taxonomy

See also: Taxonomy of arguments about donor disclosure and privacy

Ballotpedia broke down the debate over donor disclosure and privacy according to the following three subject areas that each had supporting and opposing arguments:

Arguments about disclosure of nonprofit donor information to governments