On October 3, People United for Privacy (PUFP) urged the Kansas Legislature to reform state law to better protect privacy and free speech for nonprofits and their supporters. In public comments submitted to the Special Committee on Governmental Ethics Reform, Campaign Finance Law, PUFP recommended improvements to three areas of the state’s campaign finance law that impact personal privacy rights.

“The issues that we focus on in these recommendations concern requirements for organizations to publicly report their donors. Donors to nonprofit organizations have a First Amendment-protected right to associational privacy,” explained PUFP Vice President Matt Nese and Counsel Eric Wang.

During the 2023 session, the Legislature tasked a special committee with investigating issues in the state’s campaign laws that were left unaddressed by a reform bill adopted in the spring, S.B. 208. Those outstanding issues include the law’s constitutionally suspect definition of a “political committee,” the shockingly low monetary threshold for public exposure of Kansans’ campaign donations, and donor disclosure requirements for nonprofit groups that are not considered political committees under the law but may occasionally comment on a political issue. Each of these policy areas affects the personal privacy rights of Kansans, PUFP’s comments explain.

For instance, Kansas maintains a confusing definition for “political committee” that could ensnare groups of Americans working to improve social welfare. While Americans are entitled to privacy when donating to nonprofit causes, political committees are routinely forced to publicly reveal the identities of their donors while complying with complex regulations. As a result, it matters a great deal how states determine which groups are regulated as political committees.

Federally and in many states, political committees are defined as groups whose “major purpose” is advocating the election or defeat of candidates. In Kansas, however, the law refers to “a major purpose” rather than “the major purpose.” This one seemingly small change vastly expands the sorts of organizations that may be forced to expose their supporters’ personal information to the harsh light of public scrutiny.

“For example, suppose that the Kansas Humane Society were to incidentally make some expenditures opposing the candidacy of Cruella de Vil for local dog catcher,” Nese and Wang explain. “It would make no sense to require the organization to report as a [political committee], since most of its budget is presumably spent on running shelters for abandoned dogs and cats, and most of its donors likely donate for that purpose.”

Americans must be free to support social causes like animal welfare without being subjected to the privacy invasions of campaign finance law. Likewise, nonprofits must be free to speak out about government actions when they affect issues that are core to their missions. To achieve these goals, Kansas should amend its laws to ensure that only groups with the major purpose of influencing elections are classified as political committees and forced to expose their donors.

PUFP further suggests raising the state’s threshold for public disclosure of a campaign donor’s identity. Under current law, Kansas exposes the personal information of citizens who contribute as little as $50.01, including their name and home address. This laughably low threshold puts small donors at unnecessary risk of harassment for their beliefs and clutters public records with information that is not useful to voters.

“[T]here is a ‘dramatic mismatch’ between the small-dollar donors that Kansas law requires to be reported and the ‘legitimate governmental interest’ that the Supreme Court has recognized in ‘provid[ing] the electorate with information as to where political campaign money comes from,’ ‘deter[ring] actual corruption and avoid[ing] the appearance of corruption by exposing large contributions and expenditures to the light of publicity,’ and providing the public ‘with information about a candidate’s most generous supporters,’” PUFP’s comments explain.

Kansas law fails the Court’s test. Policymakers would be wise to significantly increase the donor reporting threshold to at least $500 and index it to inflation, so its value is not eroded with the passage of time.

Lastly, PUFP’s comments draw attention to the state’s “woefully unclear” standards regarding what information nonprofit groups are required to report when advocating for or against a candidate for office. Consider the animal welfare nonprofit that speaks out against Cruella de Vil’s candidacy. The organization should not be considered a political committee because speaking about candidates constitutes only a small fraction of their activities. So, what information must they report about their supporters?

PUFP recommends that Kansas adopt the standards used by federal courts around the country. That means only donors to causes who earmark their giving to fund campaign ads should be reported. General donors should maintain their privacy.

“Consistent with the ‘exacting scrutiny’ standard and the requirement that campaign finance reporting laws be ‘narrowly tailored’ to provide the public with information about the sources of campaign funds, federal district and appellate courts around the country – including the Tenth Circuit – have suggested that reports by non-PAC entities should be required only to identify donors who have earmarked their funds for such purposes,” PUFP’s comments explain.

For many nonprofits, campaign finance may not seem like an important area of the law to monitor. After all, most nonprofits play little or no role in electoral politics. Nevertheless, campaign finance laws produce many of the most dangerous threats to the privacy of nonprofit supporters and members. These laws also threaten to silence the nonprofit community during important policy debates relevant to their missions.

Regulators at the federal and state level have exploited campaign finance laws to target nonprofits and their supporters for their beliefs. In courts, anti-privacy activists cite campaign finance cases to justify their attempts to invade Americans’ privacy when supporting nonprofits. Even in the public square, campaign finance laws forcing the disclosure of small donors to campaigns feature prominently in arguments used to chip away at longstanding privacy protections for nonprofits and their members.

Countering threats to privacy in campaign finance laws is therefore essential to safeguarding the privacy of nonprofits and their supporters. Fortunately, Kansas lawmakers have shown a willingness to reform their state’s laws to better protect privacy and free speech in the recent past.

In 2022, Kansas became one of what’s now 17 states to offer proactive privacy protections to Americans who support nonprofit causes in their borders. The legislation (H.B. 2109) passed with strong bipartisan margins in the Republican-controlled Senate (40-0) and House (92-20) before being signed into law by Governor Laura Kelly (D).

Under the law, state agencies are prohibited from demanding or disclosing the private information of Americans who give to nonprofit organizations in Kansas. The law was hailed by a robust coalition of nonprofit organizations representing a diverse array of causes. These groups include the Kansas Black Leadership Council, Equality Kansas, Kansas Family Voice, Kansas Policy Institute, the NAACP of Kansas, and Philanthropy Roundtable.

“Fear of harassment or retaliation is why many members choose to give anonymously to many causes, especially within the African American community… Forced disclosure would chill charitable giving and threaten all the good work charitable organizations do for the Kansas community,” explained Kerry Gooch of the Kansas Black Leadership Council.

Hopefully, another robust and bipartisan coalition of lawmakers and nonprofits will step up once again to strengthen privacy and free speech in Kansas. You can read PUFP’s legislative recommendations here.