Must Moviemakers Name Names of Financial Backers?

Arlington, Va.—Can the government force political documentary moviemakers to name the names of their underwriters, opening them up to harassment and intimidation? Or should such practices be rejected by the U.S. Supreme Court and reviled by the nation?

In a friend of the court brief filed January 15, 2009,(see IJ’s Amicus Brief here ) the Institute for Justice asked the U.S. Supreme Court to strike down Federal Election Commission (FEC) regulations that seek to force documentary filmmakers of a movie critical of Hillary Clinton to disclose the names and personal information of their backers. The Institute’s brief shares with the Court empirical research that demonstrates how such mandatory disclosure requirements significantly interfere with the constitutionally enshrined rights of free speech and freedom of association.

Citizens United, the organization at the center of the controversy, is a nonprofit organization that promotes its issues primarily through the production and distribution of documentary movies. In 2007, Citizens United produced Hillary: The Movie, a biographical documentary about Senator Hillary Clinton. Because Senator Clinton was then a candidate for President of the United States, and because Citizens United intended to advertise the documentary on television and make it available to video-on-demand cable during the primary and general election season, the FEC argued that Citizens United should develop and maintain a database of every donation received toward producing and distributing this movie. The nonprofit would then be required to hand over detailed personal information for every donor that gave $1,000 or more in a single year. The FEC would then turn that information over to the public in an online, searchable format, thereby opening supporters of the film to intimidation and harassment.

“For decades, courts and legislatures have accepted at face value the claims of campaign finance ‘reformers’ that disclosure is a cost-free means to regulate campaign activities,” said Bill Maurer, an attorney with the Institute and lead counsel for the Institute on the brief. “No one, however, ever bothered to research whether this was true or not. Our studies demonstrate that disclosure is the regulation that likely harms speech the most—a fact the Supreme Court must consider when deciding the constitutionality of the Federal Election Commission’s regulations.”

The Institute produced two research studies documenting the cost and burdens associated with mandatory disclosure and widespread dissemination of a citizen’s political support and activities, both of which were discussed at length in the Institute’s brief filed with the Court.

In Disclosure Costs: Unintended Costs of Campaign Finance Reform, Dick Carpenter, Ph.D., the Institute’s Director of Strategic Research, investigated whether citizens believed that disclosure of their own political activity interfered with their desire to contribute money to a ballot measure campaign. Dr. Carpenter found that subjects supported disclosure in general, but that support turned to opposition when citizens are required to disclose their own personal information. Fifty-six percent of respondents opposed having to reveal their name, address and contribution amount, and opposition rose to more than 71 percent when disclosure includes revealing employers’ identities. “Disclosure Costs: Unintended Costs of Campaign Finance Reform” is available at here .

Moreover, nearly 60 percent of those polled said they would “think twice” before contributing to an issue campaign if their personal information would be disclosed and posted on a government website. Typical reasons respondents did not want to disclose their personal information include: “I do not think it is anybody’s business what I donate,” “I don’t want other people to know how I’m voting,” “It’s an opening for harassment,” “I might get fired” and “Because that removes privacy from voting. We are insured privacy and the freedom to vote.”

The responses of those surveyed also undercut the alleged benefits of government-enforced disclosure: a “more informed” electorate. Approximately three quarters of those polled could not name any specific contributor to issue campaigns in their states, 60 percent did not even know where to find that “disclosed” information, and solid majorities were not aware of any contributors who either supported or opposed the ballot issues they cared about.

In a separate study conducted for the Institute for Justice by University of Missouri Economics Professor Jeffrey Milyo, Ph.D., titled, Campaign Finance Red Tape: Strangling Free Speech and Political Debate, 255 people were asked to fill out actual state campaign finance disclosure forms for ballot issue committees using a simple scenario of typical grassroots activity.

The results? Participants failed across the board. On average, they could not correctly complete even half the tasks, managing just 41 percent. Not a single participant completed the forms correctly. In the real world, all 255 participants would have been subject to legal penalties including fines and litigation for their mistakes. And that assumes they knew they had to register with the government to speak out in the first place: the overwhelming majority—93 percent—did not.

Participants were extremely frustrated with the red tape, calling it “Worse than the IRS!” and noting, “Seriously, a person needs a lawyer to do this correctly.” Not surprisingly, nearly 90 percent agreed that the red tape and the specter of legal penalties would deter citizens from engaging in political activity. “Campaign Finance Red Tape” is available at here .

“The U.S. Supreme Court and other courts have relied for too long on assumptions and conjecture,” said Jennifer Perkins, an Institute for Justice staff attorney. “Empirical evidence demonstrates that people are legitimately concerned that their private information will be disclosed on the Internet for all to see if they make a financial contribution to a public discussion. Certainly, the experience of supporters of California’s Proposition 8, who faced boycotts and protests based on information taken from disclosure forms, demonstrates that political speech can come with a heavy price if the government makes it available to everyone with a computer.”

Maurer concluded, “Right now, the government makes the price of political speech too high, as speakers face both reprisals and the prospect of heavy penalties if they fill out their forms incorrectly. The Court should return to the days when free speech really was free.”