At the start of this year, Oklahoma was among the top 10 states in which speech and privacy rights faced the most significant threats from potential new nonprofit donor exposure mandates. By February, Representative Cody Maynard (R) had already submitted a Rulemaking Request – although he subsequently “decided to postpone the submission” – urging the Oklahoma Ethics Commission to enact an exact replica of one of the most expansive, convoluted, and speech-chilling disclosure laws in the nation: Arizona’s Proposition 211. On top of this threat, and other lawmakers’ previously expressed interest in passing nonprofit donor disclosure legislation, loomed recommendations from Governor Kevin Stitt’s (R) “Governor’s Task Force on Campaign Finance and Election Threats.”

Governor Stitt signed the Executive Order creating the Task Force in November of 2023 to “study, evaluate, and develop policy and administrative recommendations related to campaign finance and foreign investment and/or interference in Oklahoma elections.” Prior to amending the Order, findings and recommendations were initially due January 15, 2024. In accordance with the amended deadline, the Task Force released its report on March 31.

Unlike Rep. Maynard, who failed to recognize “the complexity of the issue” until after submitting a rulemaking request with the Ethics Commission, “[t]he threshold question that the Task Force considered in deliberating Oklahoma’s relevant statutes, regulations, and our recommendations is ‘How does Oklahoma’s current approach impact the First Amendment to the U.S. Constitution?’”

While some of the recommendations in the report are potentially problematic, especially if left in the hands of shortsighted politicians, the Task Force’s general sensitivity to speech and privacy rights is heartening. Indeed, several recommendations would significantly bolster the political speech and association rights of Oklahomans. For instance, the Task Force suggests eliminating or raising contribution limits for candidates, parties, and PACs. As others have noted, contribution limits are direct restrictions on political speech and participation, and, as the Task Force explains, they “increas[e] the amount of time that a candidate must spend fundraising compared to engaging with voters.”

Highlighting privacy concerns with Oklahoma’s current law, the Task Force suggests raising the disclosure threshold for campaign contributions. “To encourage a diversity of smaller contributors to become involved in campaigns without risk of doxing or other adverse effects to their employment opportunities, Oklahoma should increase the cumulative initial contribution reporting requirement to $200.00 indexed for inflation,” the report recommends. Currently, Oklahomans who give as little as $50 to a candidate are publicly listed, along with their names and home addresses, on a government website. As the report states, “The Task Force believes that the minimum reportable contribution limit is so low that it creates a threat to participation in political activity. The Task Force further believes that the minimum should be significantly increased with an automatic inflation adjustment in the amended rule.”

The Oklahoma Legislature has recognized the threat of politically motivated doxing in other circumstances. As the Task Force explains, “the Oklahoma Legislature enacted legislation making it a crime to threaten election officials or dox their addresses and allowing certain election officials to keep their home addresses private in voter registration records.” And in 2020, Governor Stitt signed the bipartisan Personal Privacy Protection Act into law, which prevents state government entities from forcing nonprofits to publicly disclose personal information about their supporters.

Despite its attention to First Amendment concerns, several recommendations made by the Task Force could have a damaging impact on Oklahomans’ speech and privacy rights, if enacted. In some cases, the suggestions are vague and open-ended, increasing the risk of overreach by legislators and regulators tasked with implementing the recommendations.

In its “Ethics Reform Recommendations,” the Task Force appropriately notes, “The U.S. Supreme Court has detailed in opinions since Buckley v. Valeo and continuing through Citizens United v. FEC, that speech through independent expenditures cannot be abridged in ethics regulation. But the courts have upheld some reporting requirements, so long as those requirements do not violate Alabama v. NAACP and Americans for Prosperity [Foundation] v. Bonta.” However, the report continues, “The Task Force recommends that the Ethics Commission add additional disclosure requirements to independent expenditure filings, including the following…” The recommendations that follow have little to do with disclosure, leaving the suggested “additional disclosure requirements” open to interpretation.

While not specifying any particular disclosure requirements, the recommendations in this area would likely abridge independent speech. For example, the Task Force suggests the Commission pursue the following policies:

• “Enforce existing domicile requirement for the treasurers of independent expenditure entities in Oklahoma.
• Incorporation of the independent expenditure entity must be in Oklahoma.
• Provide a phone number that is answered by a person situated in Oklahoma more than five hours a day.”

Depending on how these policies are interpreted, such requirements could constitute a ban on political speech from any nonprofit that is not headquartered in Oklahoma. Many nonprofits are active in multiple states, and bans on political speech by out-of-state persons have been ruled unconstitutional in federal court.

Also listed under “additional disclosure requirements” for groups making independent expenditures is a recommendation that “[t]he treasurer shall personally certify that no campaign funds came from foreign sources under penalty of personal liability under the law.” While federal law already prohibits foreign campaign contributions and expenditures in federal and state elections, allegations of foreign interference have been seized upon by those seeking to undermine free speech and citizen privacy, both in Congress and in the states. That this particular mandate is recommended as a “disclosure requirement” to be crafted and enforced by the Ethics Commission is particularly concerning, as the agency could decide it needs to collect the names and home addresses of every American donor that gives to a nonprofit making independent expenditures to verify compliance with the law. This dragnet would fly in the face of the Supreme Court precedent cited by the Task Force, but it would not be the first time a regulatory agency has sought to craft such a broad requirement.

Separately, the Task Force suggests that “the Ethics Commission should create disclosure rules about misrepresentation, and the Legislature should review existing laws and new statutes other states are adopting to ensure these are sufficient to protect campaigns, elections, and the public from the emerging technology known as ‘artificial intelligence’ (AI).” In addressing concerns about false claims “causing voters to distrust election procedures and results,” the Task Force correctly acknowledges, “Most false claims such as these are protected by the First Amendment, so the best way to counter this threat is by providing facts about elections.”

In contrast, the report does not caution against First Amendment harms when making its vague recommendation for “disclosure rules” related to AI. As People United for Privacy (PUFP) has repeatedly pointed out in response to federal regulatory and legislative proposals, disclosure laws and regulations aimed at the use of new technologies in political speech often create significant burdens for speakers, especially grassroots organizations, while doing little to provide meaningful information. AI disclosure requirements are inherently difficult to interpret and enforce, ultimately creating more opportunities to punish political enemies with partisan accusations and investigations.

While Oklahoma made PUFP’s list of top threat states for 2024, in part due to Governor Stitt’s Executive Order creating the Task Force, the Legislature adjourned in late May without advancing legislation harming nonprofit advocacy or donor privacy rights. Initial concerns that the Task Force may recommend sweeping donor disclosure requirements were, in large part, alleviated by the report’s commendable respect for First Amendment protections.

Still, the risk of legislators or regulators seizing upon fears related to foreign influence or new technology to justify violations of speech and privacy rights is not disappearing anytime soon. Likewise, frustration among some Oklahoma lawmakers with entities making independent expenditures, as the Task Force alluded to in its report, likely won’t subside by next year. Unfortunately, these factors will likely continue to motivate unscrupulous politicians to take aim at nonprofit advocacy organizations and their supporters in states across the country.

Hopefully, the Oklahoma Legislature will again avoid going down the destructive path of pursuing legislation meant to punish opponents and silence critics in 2025. Next session, Oklahoma lawmakers should seek to implement the Task Force’s recommendations expanding political speech freedoms while carefully considering the First Amendment impact of measures meant to address election security concerns.

Transparency is for government, and privacy is for people. The Task Force understands that. Our hope is that Oklahoma policymakers and regulators do too.