Knowledge is Power
By Joe Trotter
In a republic such as ours, knowledge really is power. The First Amendment exists because our founders realized that protecting the free flow of information within and among the citizenry is essential to the survival of our system of government.
Of course, where there’s power, there are politicians trying to regulate it. Today, Delaware Strong Families (DSF) is taking the state of Delaware to task for their unconstitutional push to regulate the flow of information about political candidates.
Last year, Delaware enacted a sweeping law that created a new form of regulated speech known as a “third-party advertisement.” According to the law, “third-party advertisements” includes any communications distributed through the mail or posted on the Internet that mention any “clearly identified candidate” within 60 days of a general election or within 30 days of a primary.
Groups that run such “third party advertisements” are forced to hand over the names and addresses of each individual who contributed more than $100 to the group during the election period. As a result of these and other provisions of the Delaware Elections Disclosure Act (Act), if any group spends more than $500 just mentioning the existence of a candidate for office in a communication, Delaware law essentially treats—and heftily regulates—that group as a political action committee.
This is a serious problem for DSF, which, as part of its mission, creates and disseminates voter guides on issues of importance to Delawareans. Although the group does not endorse candidates and the voter guides are neutral and nonpartisan, the law would force the group to turn over contribution lists and make detailed filings about their activities to the state. Compounding the issue is the fact that DSF’s 501(c)(3) status depends on them refraining from political advocacy, which, under Delaware law, now includes disseminating nonpartisan voter guides.
“It’s wrong for the State to require that Delaware Strong Families register with the government, hand over contributor lists, and comply with the State’s regulatory morass just to get permission to distribute information about every candidate running for office and where they stand,” said Nicole Theis, the president of DSF, “There is nothing in the First Amendment that says that we need to beg the state for a license to speak.”
Delaware’s new disclosure regime goes well beyond any disclosure requirements previously held constitutional by the U.S. Supreme Court. In Buckley v. Valeo, the Court was extremely careful to protect the contributors of groups that did not expressly advocate for candidates. Even in Citizens United, the Supreme Court’s sweeping embrace of disclosure only blessed an extremely narrow disclosure regime that, by FEC rule, protected all contributors who did not earmark a contribution for a communication from being exposed. And in no case has the Court permitted a state to regulate an entity as a PAC for the mere production of voter guides—let alone a neutral and nonpartisan one. In other words, the Court held that the government has no right to figure out who is contributing to organizations simply engaging with the public on issues.
Absent a favorable ruling, Delaware Strong Families faces a fine of $50 a day if they were to continue issuing voter guides and not submit to the onerous disclosure burdens required by the Act. These burdens, if not overturned, will force nonpartisan organizations like DSF looking to educate the public on the positions of candidates for office, to self-silence—leaving Delawareans in the dark about what candidates have done and plan to do.
