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Arguments that limiting donor disclosure does not cause political polarization

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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
Donor privacy and disclosure policy by state

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 who argue limiting donor disclosure is not a cause of political polarization say it ensures controversial ideas and causes can be heard in the public square, confidentiality is not a major concern of voters or the source of political conflict, fully transparent political campaign donations still generate political and social polarization, and free speech and free association are central to the donor confidentiality debate across the political spectrum.

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

Argument: Limiting disclosure ensures that controversial or politically unpopular ideas and causes can be heard in the public square

  • Americans for Prosperity argued in its Supreme Court brief in Americans for Prosperity v. Becerra (2021) that confidentiality in funding the advancement of ideas is part of America’s social framework: “Historic strides have often been achieved by private groups espousing ideas that others may (at a particular time and place) violently oppose. Our country would be far less just—and the public square less diverse—if Americans could not support causes anonymously.”[1]
  • In its 2017 amicus brief in Americans for Prosperity v. Becerra, the NAACP wrote: “In an increasingly polarized country, where threats and harassment over the Internet and social media have become commonplace, speaking out on contentious issues creates a very real risk of harassment and intimidation by private citizens and by the government itself….Thus, now, as much as any time in our nation’s history, it is necessary for individuals to be able to express and promote their viewpoints through associational affiliations without personally exposing themselves to a legal, personal, or political firestorm.”[2]

Argument: Nonprofit donor confidentiality is not a major concern of voters or the source of political conflict

  • Writing in the Boston Review in 2014, Andrew Mayerson summarizes arguments about the increasing role of money in American democracy: “The argument that money is corroding the public’s trust and rigging elections is familiar to anyone who receives an email from progressive organizations or listens to Democratic stump speeches. Money, the rhetoric goes, makes candidates excessively dependent on the wealthy; fundraising monopolizes politicians' time, crowding out lawmaking and everything else; elections are won or lost on the basis of multi-million dollar attack ads funded by anonymous donors. . .the claim that money impairs the public’s faith in democracy, while plausible, can’t account for the fact that nearly all the half-century long decline in political trust took place well before the cost of elections really took off, over the last few election cycles. Voters regularly express concern over ‘big donors and secret money’ when given the chance, but have shown little inclination to vote based on the issue.”[3]
  • The Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, Common Cause, and League of Women Voters of California argued in an amicus brief in Americans for Prosperity v. Becerra that eliminating Schedule B requirements will not address the problems that the plaintiffs identify: "[Americans for Prosperity] and their amici recount an array of potential harms that they claim will be remedied by enjoining California’s nonpublic collection of Schedule Bs, from concerns about ‘online campaigns,’ partisan polarization, and ‘cancel culture,’ Foundation Br. 2-3, Law Center Br. 24, 41, to threats posed by Chinese cyberespionage or abuse of the federal terrorist watchlist, see China Aid Foundation Amicus Br. 14-19; Council on American-Islamic Relations Amicus Br. 7-15. Some of these phenomena may be cause for concern. But there is nothing on the face of this law—or the record in this case—to suggest that enjoining the confidential collection of Schedule Bs by California will do anything whatsoever to ameliorate these perceived societal ills."[4]
  • Gabe Rottman, writing for the American Civil Liberties Union, a nonprofit organization that "seeks to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States,” argued: “Importantly, it's not clear—and it needs to be clear—that anonymous political donations to independent issue advocacy groups are actually corrupting. During the last election cycle, there was significant outcry over so-called ’dark’ money: political expenditures by groups that do not publicly disclose their donors. But, when you look at the facts, dark money made up a relatively small percentage of all outside spending, and even groups that support expanded disclosure find that it had little concrete effect on the ground. In many tight Senate races, for instance, it was actually the incumbency advantage in direct fundraising by Democrats that made the difference. Before we vastly expand disclosure requirements for issue advocacy, we need a record of real harm, which we just don't have right now.”[5]

Argument: Political campaign donations are fully transparent yet still lead to corruption and fraud and generate political and social polarization

  • Jessica A. Levinson, a professor at Loyola Law School and former president of the Los Angeles Ethics Commission, argued in an NBC News opinion piece: “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.”[6]

Argument: Rights of free speech and free association are central to the donor confidentiality debate across the political spectrum

  • U.S. Senator Jeff Merkley (D) said: “What I struggle with, and what many of my colleagues struggle with, is, we have Senate rules that we believe should be changed. But until they are changed, how much unilateral advantage do we give to Republicans. . . I work like crazy to have small-dollar donations and as big an email list as we can possibly get. But I’m not sure we could win 51 or a sizable majority if we abandoned the calls for fundraising to the Republicans.”[7]
  • David Pozen in The Atlantic said: “Together with affiliated political-action committees (PACS), conservative social-welfare organizations such as Americans for Prosperity and Crossroads GPS spent massive amounts over the past several election cycles. Liberals initially responded with alarm at the ‘politicization’ of the 501(c)(4) category. Now they are following suit. This new model raises new challenges for government officials and nonprofit leaders alike. Most fundamentally, it is putting ever more pressure on the already unstable boundary between the nonprofit sector and the political arena. This in turn will put more pressure on Congress and the IRS to police the existing legal buffers and to develop additional rules to limit the flow of ‘dark money’ between secret donors and politically active nonprofits (as lower courts have just begun to do). It remains to be seen whether regulators will be able to meet these challenges."[8]

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

Arguments about disclosure of nonprofit donor information to the public

Arguments about donor disclosure and political polarization

See also

External links

Footnotes

  1. ↑ U.S. Supreme Court, "Americans For Prosperity v. Becerra: Writ for petitioner," February 22, 2021
  2. ↑ Institute for Free Speech, "NAACP Amicus Brief," January 27, 2017
  3. ↑ Boston Review, "Money Is Not the Only (or the Biggest) Source of Voter Distrust," November 18, 2014
  4. ↑ Campaign Legal Center, "Brief of Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, Common Cause, and League of Women Voters of California," March 31, 2021
  5. ↑ ACLU, "Thoughts on the Latest Political Disclosure Proposal," April 26, 2013
  6. ↑ NBC News, "Trump just made it easier for groups like the NRA to hide dark money donors. The timing couldn't be worse." July 20, 2018
  7. ↑ Blue Tent, “How Progressives Learned to Stop Worrying and Love Dark Money: These secretive groups have become a mainstay of liberal politics,” February 16, 2021
  8. ↑ The Atlantic, "The Tax-Code Shift That’s Changing Liberal Activism: Nonprofit groups that used to focus their energies on litigation and education are structuring themselves to be political players," November 27, 2018
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