At last week’s Federal Election Commission (FEC) meeting, the agency considered a proposal by Commissioner Allen Dickerson, a Republican appointee, to standardize the Commission’s decision-making process when evaluating requests from donors and entities to redact sensitive identifying information from public disclosure. While the Commission ultimately rejected Commissioner Dickerson’s placeholder guidance temporarily enacting the policy until a formal rule is adopted, the Commissioners took a significant step in tasking the Office of General Counsel with issuing a notice for proposed rulemaking (NPRM) to standardize the FEC’s redaction request policy. The NPRM will be followed by a public comment period for interested parties to submit feedback on the proposed rule.

As People United for Privacy explained when supporting Commissioner Dickerson’s thoughtful proposal:

This proposal generally concerns donors to campaigns and political committees, but it has broader implications for nonprofit advocacy, especially as some nonprofits may be forced to report their donor information to the Commission for certain communications. For one, the proposal acknowledges that vulnerable donors have a First Amendment right to support causes via donations and that this right outweighs the government’s interest in disclosure. As Commissioner Dickerson’s memo notes, donor disclosure requirements are not absolute. The Supreme Court has said donors who show a reasonable probability of experiencing “threats, harassment, or reprisals” from government officials or private actors must be excused from public reporting. Recent case law has articulated a narrow government interest in who funds constitutionally protected political advocacy, and this proposal is meant to reflect those developments.

While the text of the proposed rule remains to be seen, Commissioner Dara Lindenbaum, a Democratic appointee, outlined many practical reasons for shielding certain donor information from public disclosure in a statement issued during the meeting:

“Some citizens have jobs, like law enforcement, where the publishing of their home address is an obvious security threat. Other individuals, like major donors or celebrities, are already cautious about disclosing their home address and have access to sophisticated advisors that counsel them to instead disclose only a work address or other mailing address. However, most everyday Americans will not be aware that reporting their home address when making political contributions might subject them to security concerns until some future time, well after the relevant contributions were made and long after their personal information is already accessible on disclosure reports filed with the Commission.”

In light of these safety and privacy concerns, Commissioner Lindenbaum urged Congress to amend the Federal Election Campaign Act – the statute governing federal campaigns that the FEC is tasked with enforcing – to eliminate the requirement that the FEC publicly disclose contributors’ street names and numbers. Current law requires candidates and political committees to report the name, home address, occupation, and employer of individuals who donate $200 or more for inclusion in a publicly accessible and searchable database. Moreover, as Commissioner Lindenbaum notes, popular online fundraising platforms like ActBlue and WinRed, regulated as conduit committees, are required to disclose this information for every donor, including those who give as little as $1.

At the same time, technological advances have made abuse of donor data obtained through FEC records much easier than when Congress enacted these requirements in the 1970s before the advent of the internet, search engines, and cell phones. As Commissioner Lindenbaum aptly notes:

“Today, armed with only an individual’s name, it takes less than a half dozen clicks on the Commission’s website to find that person’s mailing address on a disclosure report. By contrast, until relatively recently, someone would have to physically come down to the Commission’s office and browse through paper filings for the same information.”

The statement explains that public disclosure of a donor’s street address is unnecessary and presents safety risks. Citing these security concerns, Commissioner Lindenbaum noted that the FEC has regularly permitted individuals to modify the required disclosures, such as allowing the submission of a business address instead of a home address or withholding the address altogether. The Commissioner also notes that some populous states, like California and Texas, make similar allowances for donors and committees with privacy concerns. Ample precedent exists acknowledging that political contributors deserve protections to prevent their most sensitive personal information from being publicly exposed.

While Commissioner Lindenbaum joined the other two Democrats on the Commission in rejecting Commissioner Dickerson’s placeholder guidance, she supported the rulemaking and, as her statement notes, endorses the principle that certain sensitive donor information should be shielded from public disclosure. But in addition to FEC rulemaking, Commissioner Lindenbaum argues that Congress must also act.

The FEC has already exercised its authority to offer accommodations for donors concerned with their security and privacy, and the forthcoming NPRM for the redaction request policy is a positive step towards standardizing the agency’s procedures and discretion in this area. However, as Commissioner Lindenbaum demonstrates, more comprehensive reform by Congress is needed to update and reform campaign finance disclosures for the digital age.

As Commissioner Lindenbaum put it, “Any benefit to the public of knowing the exact address of a contributor is outweighed by the safety concerns of having a contributor’s address easily accessible on the Commission’s website.”

The effort to standardize privacy protections at the FEC comes amid growing concern throughout the nation about threats, doxing, and harassment of Americans with diverse views who participate in the political process and civic discourse. These same concerns exist for donors to nonprofit organizations that advocate on contested public policy, legal, or social issues. It’s an encouraging sign to see FEC commissioners from both parties acknowledge our hyperpolarized political environment and take forward-thinking action to protect Americans from harassment and abuse of their personal information when supporting their preferred candidates and causes.

The Commission’s motion tasked the Office of General Counsel with issuing the NPRM within 75 days, so absent any delays, we can expect a draft proposal by the end of summer. In the meantime, we encourage all Members of Congress to take Commissioner Lindenbaum’s proposal seriously and advance positive privacy reform of the federal disclosure laws.