Arlington, Va—In Colorado, California, Washington, D.C., and across the nation, the government now peeks over your shoulder during elections and then tells your neighbors not only how you vote but where you live.
Harassment and intimidation soon follow.
“Would you let the government in the voting booth with you, demanding to see your ballot before it is cast?” asked Steve Simpson, a senior attorney for the Institute for Justice. “That is exactly what the government is doing with disclosure laws—demanding to see who you support politically and how much you support them financially, thereby opening you up for retribution and punishment if someone feels you’re voting the wrong way.”
Simpson’s concerns are not idle ones and the Institute for Justice has seen the abuses in cases it is now litigating nationwide. Policy groups, business owners, and ordinary citizens find themselves harassed by opponents wielding disclosure laws as political weapons to intimidate and silence those with whom they disagree. In California, for example, supporters of a controversial ballot measure have had their campaign contributions and home addresses “mashed-up” with Google maps providing a roadmap for fear and threats.
In Colorado, the Independence Institute, a free market policy group, sought to educate voters about two 2005 ballot measures, one that would raise taxes and the other that would increase debt. No sooner did the group start speaking out than one of the primary proponents of the measures filed a complaint claiming that the Institute violated campaign finance disclosure laws. Under Colorado’s disclosure laws, anyone who gives as little as $20 to a group that supports or opposes a ballot issue will have his or her name and home address posted on a government website. Those who give $100 or more have their employer’s name and address posted, exposing not only the contributor to harassment, but their employer, too. Even though the Independence Institute never advocated for voters to vote for or against the measures, they were dragged into a costly and time consuming legal process.
“We were a vocal political minority and our political opponents used the state’s disclosure laws to harass us mercilessly,” Caldara said. “Our opponents wanted more power and they stopped at nothing to get it, including filing a bogus lawsuit against us under Colorado’s disclosure laws. Their goal was to silence and distract us at a critical stage in the election, creating not only great financial costs amounting to $80,000 but also opportunity costs on me and my staff.”
Under Colorado’s campaign finance laws, the basic right of even ordinary citizens to speak out politically is in jeopardy. In 2006, six neighbors who opposed the annexation of their neighborhood of Parker North into the nearby town of Parker did what Americans are supposed to do: they spoke out, creating yard signs, fliers and the like. But soon these neighbors were sued by their political opponents because they did not first register with the government before they voiced their opinions and didn’t disclose contributions and expenditures.
The Institute for Justice represents both the neighbors in Parker North and the Independence Institute in separate constitutional challenges to Colorado’s disclosure laws. The Parker North case is pending before the 10th Circuit Court of Appeals in Denver. The Colorado Supreme Court is currently considering whether to take up the Independence Institute’s case.
“The courts must recognize what’s going on and end disclosure as a weapon for harassment,” Caldara said. “Disclosure laws are being abused in predictable ways. Those who employ them today to silence opponents are no better than the thugs in the 1950s who used similar shadowy threats and tactics to try to intimidate those calling for civil rights reforms. We were harassed and threatened because of disclosure laws.”
A Roadmap for Harassment
To demonstrate how great the threat from disclosure laws can become, consider what is now taking place in California. Among the more disturbing examples is a website called “Eightmaps.com.” Eightmaps.com is a “mash-up” of Google maps and a list of donors to Proposition 8—the referendum to end same-sex marriage in the state. The website provides the name, occupation, donation amount and exact location of the Prop 8 donor.
“There is no reason to post this information except to create a roadmap for the harassment of Proposition 8 supporters,” said Paul Sherman, an Institute for Justice staff attorney. “Regardless of one’s position on this controversial measure, we can all agree that this government-enabled intimidation has no place in a nation that has always prided itself on the secret ballot, freedom of speech and freedom of association.”
In another example from California, Marjorie Christofferson was the manager of the El Coyote restaurant, a famous Southern California eatery with a large gay clientele. Marjorie gave $100 to the Yes on 8 campaign and, when her contribution was disclosed due to California’s campaign finance laws, the El Coyote became the target of boycotts and picketing. Out of fear that her continued presence at the family-owned restaurant would lead to its demise, Marjorie resigned. Some supporters of Prop 8 also resorted to intimidation tactics, threatening to “out” corporations that gave to gay rights groups if they did not make equal contributions to groups supporting Prop 8.
“Disclosure laws encourage political opponents to resort to lawsuits and harassment, rather than to argue the merits of their issues,” said Simpson. “This is not what the First Amendment was intended to achieve.”
Reprisals for political contributions can also come in forms unrelated to the donation itself. Gigi Brenza discovered this when her name and address appeared on the website of an animal-rights terrorist organization, which had culled Federal Election Commission records for donors whose employers perform animal testing. Her address was listed under the message, “Now you know where to find them.” Her story was profiled in a 2007 story in The Washington Post titled, “I Got Inspired. I Gave. Then I Got Scared.”
“In America, we shouldn’t have to register with the government and disclose who we support politically,” said Institute for Justice President Chip Mellor. “This is completely against who we are as a nation and the free speech and free association rights we’re supposed to enjoy. Being free to speak means exactly the opposite of what campaign finance disclosure laws are now demanding. In America, the government is not supposed to have the power to broadcast who or what issue we privately support or how we’re going to vote.”
The recent research findings of Jeffrey Milyo, Ph.D., should disturb anyone who cares about people being able to meaningfully participate in elections. Milyo is one of the nation’s leading researchers on the issue of disclosure and a professor in the department of economics and the Truman School of Public Affairs at the University of Missouri. Milyo’s recent report, Campaign Finance Red Tape: Strangling Free Speech & Political Debate, asked 255 volunteers to complete the actual disclosure forms for California, Colorado or Missouri based on a simple scenario typical of grassroots political activity—one modeled after the neighbors in the Parker North case.
Not a single one of the 255 participants completed the disclosure forms correctly. In the real world, all 255 participants could be subject to legal penalties including fines and litigation. Before the experiment, 93 percent had no idea they needed to register and file various forms to speak about a ballot issue—a legal trap that can catch innocent citizens. Finally, nearly 90 percent of participants agreed that this red tape and the specter of legal penalties would deter citizens from engaging in political activity.
Dick Carpenter II, Ph.D., IJ’s director of strategic research, authored the report Disclosure Costs: Unintended Consequences of Campaign Finance Reform based on a public opinion survey in six states with ballot issues. Carpenter found that mandatory disclosure appears to enjoy support among citizens, that is, until the disclosed information includes their own personal information—“disclosure for thee, but not for me.” Carpenter found that more than 56 percent of respondents opposed disclosure when it includes their name, address and contribution amount, and opposition rose to more than 71 percent when an employer’s name must be disclosed. This opposition translates into a lower likelihood of someone becoming involved in political activity through donations, meaning that mandatory disclosure laws “chill” citizens’ speech and association.
“Disclosure laws represent not only a threat to individual voters, as in Colorado and California; they represent a danger to our democratic process,” said IJ’s Simpson. “The U.S. Supreme Court recognized in 1995 that anonymity ‘exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hands of an intolerant society.’ Anonymity is exactly what disclosure laws take away.”