In an amicus brief filed on August 20, People United for Privacy Foundation urged the U.S. Supreme Court to grant review in Alaska Policy Forum (APF) v. Alaska Public Offices Commission. The brief, which was joined by Philanthropy Roundtable, Manhattan Institute, and State Policy Network, argues that the Alaska Supreme Court erred when it cited a narrow exception for disclosure of campaign funding to uphold the state’s sweeping demand for a nonprofit’s donor list.

The right to support causes privately is protected by the First Amendment and a long line of Supreme Court decisions. Yet the Court has long allowed extensive disclosure requirements for speech about ballot measures, candidates, and elections. The Court justifies these exceptions under several governmental interests, the strongest of which is the “informational interest,” which asserts that disclosure may be mandated to inform voters about the sources of campaign spending.

That interest, the amicus brief explains, is not and never has been unbounded. Rather, it is subject to the same narrow tailoring requirement that the “exacting scrutiny” test, articulated in Americans for Prosperity Foundation v. Bonta (2021), demands for all government incursions into donor privacy.

“As Buckley described it, the interest is specific,” PUFPF’s brief explains. “Disclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office. The sources of a candidate’s financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office. Each articulation since has been similarly concrete.”

The facts of Alaska Policy Forum are a far cry from the Court’s previous precedents upholding disclosure of campaign contributions. APF did not donate money to a campaign, nor did it advocate directly on a measure. Instead, the state demanded the group comply with onerous registration, reporting, and donor disclosure requirements simply because it published a series of articles and blog posts about ranked-choice voting while voters considered an initiative to create a ranked-choice voting system.

APF went to the courts for relief, but the Alaska Supreme Court upheld the state’s demand. The decision demonstrates the need for the Supreme Court to clarify the existence of limits on the informational interest to preserve donor privacy for speech about public policy issues. It also illustrates the extreme disparity between the Court’s robust protections for political speech and associational privacy in most contexts and the invasive and burdensome regulations that are tolerated for organized advocacy by groups of Americans. In an era of heightened political violence, smartphones, and pervasive GPS access, these invasions of privacy are increasingly risky and chilling.

“While courts use a scalpel to protect political speech from laws like ‘no political pamphleteering in the public park,’ they routinely let governments address donor disclosure with a sledgehammer. Meanwhile, technological advances have transformed disclosure from paper filings consulted by professionals into permanent, searchable electronic databases of citizens’ political contributions. The Court should grant the Petition and confirm that the informational interest has limits against which narrow tailoring can be measured. Better yet, it should begin harmonizing its political-disclosure precedents with the robust protection for private association the First Amendment commands in every other context,” the brief explains.

The amicus brief was authored by former Federal Election Commission Chairman Allen Dickerson and Allison Tuck of BakerHostetler along with Ilya Shapiro and Trevor Burrus of the Manhattan Institute. Alaska Policy Forum is represented by the Institute for Free Speech.