For two consecutive years, the New Hampshire General Court has been on a quixotic mission to impose additional burdens on nonprofits that wish to advocate on issues central to their missions.

In 2023, lawmakers passed H.B. 195, a bill to “reduce the threshold for Political Advocacy Organizations to disclose expenditures, from $5,000 to $2,500,” as Senator Rebecca Perkins Kwoka (D) wrote for the Committee on Election Law and Municipal Affairs, which unanimously approved the legislation. Governor Chris Sununu (R) signed the measure into law late last June.

Despite the name, political advocacy organizations are a state creation applicable to nonprofit organizations that communicate to lawmakers and the public about policy issues.  H.B. 195 also changed the definition of “political advocacy organization” to permit more regulation of issue speech by nonprofits. According to the Senate Committee hearing report, the New Hampshire Center for Nonprofits was concerned that the expanded universe of speech that would trigger reporting requirements would “draw in organizations that provide report cards or other very appropriate, educational information about advocacy.” However, the Center’s testimony indicated that the law’s “current expenditure language” may alleviate some concerns.

Fast forward to this year when lawmakers passed H.B. 1091, which, among other things, further lowers the reporting threshold for so-called political advocacy organizations and broadens current law’s expenditure language. Under H.B. 1091, any organization that makes expenditures of $1,000 for communications “likely to be interpreted,” in whole or in part, as “promoting the success or defeat” of a candidate or ballot measure will be regulated as a “political advocacy organization.” This spending threshold is not only five times lower than it was just over a year ago, it also covers twice the amount of time. The current $2,500 threshold and the previous $5,000 threshold applied to spending on advocacy in a calendar year. H.B. 1091’s $1,000 threshold applies to a two-year election cycle. In other words, H.B. 1091’s threshold for regulation is effectively ten times lower than it was prior to the enactment of H.B. 195 last year.

For more evidence that the intent of H.B. 1091 is to regulate issue speech, its new “expenditure” definition is explicit that communications “[t]hat promote the success or defeat of a party, candidate, candidates, measure, or measures” trigger reporting requirements, “regardless of whether the communication or activities contain express advocacy or its functional equivalent.”

Crucially, the new phrase “success or defeat,” which is featured in nearly every definition of regulated speech and entities in H.B. 1091, is defined as “support, praise, or promotion of, opposition to, or attack” of a candidate or measure. Leaving no stone unturned, the definition of “independent expenditure,” which under current law only covers express advocacy – a formal term for direct messages of support or opposition – is amended to include virtually any communication that meets the vague and broadly defined “success or defeat” standard.

As if all of this isn’t bad enough for nonprofits that discuss policy issues in New Hampshire, H.B. 1091 redefines “political committee” to include a “political advocacy organization” that “promote[s] issues and ideas that may influence voters’ choices on the ballot…”

Tying this complicated mess together, a nonprofit that spends just $1,000 over two years speaking about virtually anything even remotely related to government action will be considered a political committee in New Hampshire if H.B. 1091 becomes law. Issue advocacy organizations that have never endorsed candidates or become involved in campaigns will be treated similarly to every candidate’s campaign committee.

In practice, groups advocating for Second Amendment or reproductive rights, that encourage policing reform, lower taxes, or conservation policy, or that promote veterans’ interests in their communities will be forced to comply with burdensome paperwork and red tape. Many small or volunteer-run organizations will likely be forced to close up shop rather than devote significant money to an attorney to assist in complying with government-mandated reports and to prevent the organization from running afoul of the law.

The one silver lining is that H.B. 1091 retains current law’s donor disclosure exemption for most nonprofits that trigger reporting requirements. However, the bill adds a new disclaimer requirement that exclusively applies to nonprofits that do not voluntarily expose their supporters, effectively branding them with a Scarlet Letter for respecting their members’ privacy. If recent trends hold, it’s fair to question when lawmakers may decide it’s time to axe the law’s privacy protections, too.

Given the plain text of H.B. 1091, there’s no denying that its target is issue speech, not campaign speech, as some lawmakers have claimed. Unfortunately, the bill seems destined to become law. While the House vote was contentious, H.B. 1091 passed the Senate unanimously, and the Attorney General and Secretary of State’s offices have consistently pushed for broadening the law to increase the agencies’ regulatory authority to pursue disfavored speakers.

The end result will be that more speech by nonprofits will trigger onerous reporting and disclaimer requirements that come with compliance risks and costs. Alternatively, nonprofit organizations may simply choose silence. Either way, the nonprofit community and civil society will suffer.

New Hampshire lawmakers showed great promise by passing the Personal Privacy Protection Act with bipartisan support in 2022. Thankfully, that law protects nonprofit members and supporters from having their sensitive personal information collected and disclosed by state agencies. However, it’s incumbent on lawmakers in both parties to rethink their increasing antipathy towards nonprofits in the 2025 session. The current trends are disturbing for the nonprofit community and their supporters in The Granite State.