The DISCLOSE Act: Don’t Believe the Lies About This Dangerous Bill

September 21, 2022

Over the years, some Members of Congress have made sensational and wildly inaccurate statements about the so-called DISCLOSE Act, completely disregarding how the bill would harm the First Amendment rights of Americans by outing their support for nonprofit causes. Here’s the truth about this dishonest and reckless effort.

Despite proponents’ spin that DISCLOSE is a campaign finance measure, it is actually an aggressive attack on issue advocacy.

What they say… Reality
Senator Angus King (I-Maine): “This bill is very narrowly targeted to candidate elections. It is not about issue advocacy…” Make no mistake: The DISCLOSE Act is not a campaign finance bill. Americans who support candidates, political parties, PACs, and other political entities are already disclosed publicly and in voluminous detail including their home address, occupation, and employer. Rather, this proposal exposes Americans’ support for nonprofits of all persuasions and buries these organizations in red tape, in hopes of preventing them from engaging on policy issues central to their mission. Any Member of Congress who thinks that isn’t what this bill is about hasn’t read the bill, doesn’t understand the difference between campaigns and nonprofits, or is willfully misleading the public.

The DISCLOSE Act ignores six decades of pro-privacy decisions from the Supreme Court and is constitutionally suspect.

What they say… Reality
Senator Alex Padilla (D-California): “In Citizens United specifically, the Supreme Court unleashed a torrent of unlimited political spending… on the basis of two assumptions. 1) Spending would be accompanied by independence and transparency. 2) Transparency would safeguard political integrity.” This is a misrepresentation of the Supreme Court’s consistent position on nonprofit donor privacy over the last six decades, in both Citizens United and last year’s landmark Americans for Prosperity Foundation v. Bonta decision. The Court has repeatedly recognized that forcing an organization to release its member or donor lists to the government not only divulges the First Amendment activities of individual members and donors but may also deter such activities in the first place. As a result, the Court has consistently struck down proposals that force nonprofits to expose their supporters. The DISCLOSE Act ignores and contradicts the Court’s respect for citizen privacy rights and, for those reasons, it is of dubious constitutionality.

Sponsors of the DISCLOSE Act portray themselves as defenders of democracy while attacking their constituents’ First Amendment rights.

What they say… Reality
Senator Amy Klobuchar (D-Minnesota): “When people see outside groups drowning out the voices of voters, how does that impact their desire to vote and participate in our democracy?” Donor privacy encourages participation in the democratic process by protecting the voices of voters who lack access to elected officials or whose beliefs differ from those in power. Americans who choose to give to nonprofit causes do so with the understanding that those organizations can more effectively and efficiently communicate their views.

Privacy rights guaranteed under the First Amendment don’t disappear when Americans spend their own money to support a cause.

What they say… Reality
Senator Alex Padilla (D-California): “Under the DISCLOSE Act, organizations spending more than $10,000 on campaign related activity would be required to disclose any donor who contributed more than $10,000, which is in my opinion, a large sum of money to fund that activity… Those who seek to use their outsized wealth to gain an outsized voice in elections and policy shouldn’t be able to do so anonymously.” While a relatively small number of Americans will ever donate $10,000 to a nonprofit organization, every supporter of the organization’s mission – rich and poor – benefits from these contributions. The passage of a bill like DISCLOSE will inevitably result in fewer such donations, limiting speech, harming nonprofits’ ability to advocate for their members and communities, and discouraging future donations, including those under the threshold. And if the threshold motivates many to give just under the $10,000 trigger to protect their privacy, it’s inevitable there will be calls to lower the disclosure threshold further.

 A U.S. Senator’s vote should be public, but that has nothing to do with citizen privacy.

What they say… Reality
Senator Angus King (I-Maine): “I’m subject to criticism for some of my votes, it might even chill my free speech. Do you think Senate votes should be secret? What’s the difference?” It’s simple: Transparency is for government. Privacy is for people. When individuals run for and win elected office, they do so to represent the interests of the American people. This is markedly different than private citizens who owe no duty to publicize their personal beliefs to their peers. Americans have privately supported nonprofit causes since the founding of this country. The DISCLOSE Act seeks to eviscerate this long-celebrated tradition.

Even when a donor’s name is exposed, privacy opponents still want more.

What they say… Reality
Senator Merkley (D-Oregon): “We just had a race in Oregon where a PAC decided to put $10 million into a primary for a member of Congress, an individual who has not served in any local office. But it was a bitcoin billionaire that decided, ‘I want this guy elected.’ It certainly seemed to me like citizens had the right to know where millions of dollars of campaign ads were coming from to understand who is behind it.” First of all, anyone who is interested can learn who made that contribution in Oregon, evidenced by the fact that Senator Merkley mentioned that person multiple times during a recent hearing. The DISCLOSE Act would not have revealed additional information about this donation to a PAC that was not already disclosed in campaign finance reports. Comments like these that focus exclusively on the source of a candidate’s support are an insult to voters who are capable of evaluating an issue or candidate based on news reports, public filings, and the information provided by the campaign about what it stands for.

This effort isn’t about transparency. It’s aimed at deterring Americans from supporting causes they believe in and preventing nonprofits from communicating their views on policy to the public.

What they say… Reality
Senator Charles Schumer (D-New York): “The deterrent effect should not be underestimated.” The bill’s supporters have never been good at hiding its intent, as evidenced by now-Senate Majority Leader Schumer’s infamous quote at the measure’s unveiling over a decade ago. The DISCLOSE Act gives the government power it has never before held to surveil the giving and beliefs of American citizens and the organizations they associate with. It is explicitly intended by its champions to dry up nonprofit giving and silence the voices of advocacy groups.

Taken together, the aggressive mandates in this bill would violate Americans’ privacy, facilitate harassment, and decrease civic engagement.

People United for Privacy strongly urges all Members of Congress to protect nonprofit donor privacy and reject the DISCLOSE Act.

Download a PDF of this document.

Resources

People United for Privacy Letter in Response to the U.S. Senate Committee on Rules and Administration’s July 19 hearing on “The DISCLOSE Act”

Institute for Free Speech Analysis of The DISCLOSE Act

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