The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Wisconsin Family Action v. Federal Election Commission, decided yesterday by Judge William Griesbach (E.D. Wis.), the WFA—"a non-profit organization whose mission is to advance Judeo-Christian principles and values in Wisconsin by strengthening, preserving, and promoting marriage, family, life, and liberty"—sued to "enjoin the FEC from forcing WFA to disclose … any contributions other than those that are earmarked for specific independent expenditures expressly advocating the election or defeat of an identified candidate for Federal office." The Court began by generally discussing the First Amendment right of expressive association, which often includes anonymity:
Although the Court in Buckley v. Valeo (1976) held that the FECA disclosure requirements were facially valid and rejected a blanket exemption for minor parties and independents, it recognized that there could be cases in which forced disclosure of donor identities would violate the constitutional rights of supporters of unpopular causes. The Court acknowledged in its discussion of the burdens of disclosure on First Amendment rights that "it is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute" and "[i]n some instances, disclosure may even expose contributors to harassment or retaliation." The Court explained that these burdens on individual rights are "not insignificant" and that "they must be weighed carefully against the interests which Congress has sought to promote." "Where it exists," the Court noted, "the type of chill and harassment identified in NAACP v. Alabama can be shown." The Court also noted its expectation that courts would be sensitive to similar showings in future cases.
WFA has offered, through the declaration of Julaine Appling, evidence of various instances of harassment of WFA's employees and its supporters. For example, for roughly two years after WFA supported a state constitutional amendment limiting the definition of marriage to a relationship between a man and a woman in 2006, Appling received a phone call at home every few months in the middle of the night that involved the use of "vulgar, foul language" and warned her that she was "not safe" because she was a "hateful, homophobic, Nazi bitch." In 2006, "serious death threats" were made against WFA's political advisor's family. In approximately 2013, Appling received a letter, postmarked from Wisconsin, that referenced issues supported by WFA and stated that the sender knew where Appling lived, that the sender lived close by, that later that month Appling would know they were there, and that Appling's life was in danger. Appling took the letter to the police, and the police considered the letter a "real threat" and ensured patrol cars were more visible and drove more frequently in her neighborhood for that month.
Appling also notes that, when WFA's offices were in downtown Madison, WFA employees had their cars keyed, had their vehicle tires slit, and had abusive messages left on their vehicles. She asserts that WFA receives harassing social media messages and provided examples of comments posted to WFA's Facebook page in September 2021 after WFA promoted a book on its page. She contends that WFA receives abusive voicemails and highlighted a voicemail from September 2020, in which the caller, who did not identify himself, stated that he disagreed with WFA's position on religious liberty and that WFA should "go f---yourself" and that WFA employees would "burn in hell" and should "eat s--- and die, you c---." In addition, WFA supporters reported having yard signs created by a WFA affiliate that promote traditional marriage destroyed and their car tires slit.
The FEC, citing NAACP v. Alabama (1958), asserts that the vague examples WFA has provided "do not remotely rise to the level of threats and harassment sufficient to warrant an exception to the generally applicable disclosure rule." In NAACP, the organization had "made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." The record included evidence of a "series of bombings and shootings" and other major acts of violence. But while WFA's examples of harassment are not the types of violent abuses cited in NAACP v. Alabama, actual instances of violence are not necessary to chill speech.
The FEC also asserts that WFA has not shown that the harassment it has been subjected to is related in any way to campaign finance disclosures and that much of the harassment has been targeted toward WFA's staff after it took various actions consistent with its stated purpose. In support of this argument, the FEC points to the publicly filed Wisconsin campaign finance reports for Wisconsin Family Action PAC from 2010 to 2021, which lists the names and addresses of donors of amounts as low as $20, and WFA's own campaign finance reports from 2016 to 2021. The FEC notes that WFA "cites no specific examples of retaliation resulting from its state-law disclosures."
A review of WFA's state filings, however, reveals how few donors WFA has disclosed with almost all donations disclosed of $25 or less. Of those it has disclosed, few if any have been willing to list their employers or occupation, whether due to fear of retaliation or because they're retired and no longer as vulnerable to employment-related intimidation. And while it is true that much of the evidence of harassment presented by WFA was experienced by its employees, WFA also cited reports of harassment experienced by WFA's supporters.
The fact that the few small donors WFA has disclosed in the past may not have suffered significant harassment does not mean that other prospective donors do not reasonably fear retaliation were their identities publicly disclosed. Indeed, Appling states in her declaration that "over the years, donors have advised WFA that if their names are ever disclosed, they cannot continue to give money because their business or families would be threatened by those opposed to WFA's mission." There is no reason to think that donors, who share the same views as WFA, would be treated differently or would not be subject to the same harassment experienced by WFA's employees should they be known.
The Court in Buckley cautioned against demanding "unduly strict requirements of proof" of harassment before exempting unpopular or minority groups from statutory duties to disclose their donors. Concerned that requiring donors fearful of reprisal to submit affidavits identifying themselves would defeat the purpose of seeking nondisclosure, the Court noted such parties "must be allowed sufficient flexibility in the proof of injury to assure fair consideration of their claim." The evidence offered to support exemption, the Court held, "need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from Government officials or private parties." Examples of the type of proof sufficient to succeed on an as-applied challenge include "specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself," or a "pattern of threats or specific manifestations of public hostility." In addition, "[n]ew parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views."
In some respects, and for certain groups, the risks associated with disclosing their donors' participation in constitutionally protected speech have only increased since Buckley was decided. As Justice Thomas has observed, "the advent of the Internet enables prompt disclosure of expenditures, which provides political opponents with the information needed to intimidate and retaliate against their foes." The accessibility of the Internet and the rise of "cancel culture" are major developments since Buckley. Cancel culture is the phenomenon of aggressively targeting individuals or groups, whose views aggressors deem unacceptable, in an effort to destroy them personally and/or professionally. Cancel culture, a prominent force in today's world, is inconsistent with the philosophy of open, political debate; it undermines and stifles First Amendment privileges.
There is no doubt that WFA's mission and values are detested by certain groups. Profound understandings and traditions about the nature of marriage and human sexuality that grounded western civilization for centuries are today deemed offensive and hateful by many. For "real-world" instances of the kind of retaliation and intimidation groups with similar views as WFA have suffered in the country, one need only look to Justice Thomas's account in Citizens United v. FEC (2010) (Thomas, J., concurring in part and dissenting in part) (observing that some opponents to Proposition 8 [California's referendum on "same-sex marriage"] created websites with maps showing the locations of homes or businesses of Proposition 8 supporters; supporters and customers suffering property damage or threats of physical violence or death; supporters receiving envelopes through the mail containing a white powdery substance; and supporters being forced to resign from their positions of employment). An individual who wants to participate in politics should not have to face personal and professional ruin. See id. ("I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection."). "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." NAACP v. Alabama.
For these reasons and based on this evidence, WFA argues that compelled disclosure of its contributors is likely to affect adversely the ability of WFA and its members "to pursue their collective effort to foster belief which they admittedly have the right to advocate." The disclosure requirements arguably called for under the FEC's current guidance, WFA contends, would chill the exercise of the constitutionally protected rights of WFA and its donors, and thereby threaten WFA's existence, unless WFA declines to make any independent expenditures of more than $250 in the coming elections….
But the court concluded that the FEC takes the view only that, "a non-political organization, like WFA, that makes independent expenditures exceeding $250 must disclose only those donors whose contributions are earmarked for political purposes and are tied to a federal election. Absent such an earmark and tie, the donor need not be disclosed." And
WFA describes itself as a nonprofit, nonstock corporation organized under Wis. Stat. § 181 and exempt from federal income taxation under I.R.C. § 501(c)(4). WFA is not a political action committee or an "independent expenditure committee." WFA engages in activities intended to educate voters on issues that relate to its mission and on candidates and their positions on those issues. It carries out its educational activities through disseminating literature, email, texts, flyers, direct mail, telephone calls, and other means. WFA's typical annual budget is in the range of $800,000 and only once exceeded $1 million. According to Appling, "donations received by WFA are not designated to be used for any specific purpose and, similarly, to my knowledge, WFA donors have never indicated that their contributions are intended to support a specific candidate or political party." WFA spends the contributions it receives and does not pass on money to other organizations, nor does it conduct its activities in coordination with any candidate, campaign, or political party. It has no intention of ever changing these policies.
If, as WFA contends, none of its donors earmark their contributions for a political purpose tied to a particular federal election, then it appears clear that the FEC will not seek their disclosure….
This is not to say that there may not be circumstances under which the FEC will seek disclosure of WFA's donors. As the parties discussed during argument on WFA's motion, whether a contribution is earmarked for political purposes and tied to an election can depend on whether the contribution is in response to a solicitation and the way the solicitation is worded. It is unclear from WFA's complaint and moving papers, however, what kind of solicitations it intends to send to prospective donors. As a result, it is not possible for the FEC to say at this point whether donors responding to such solicitations should be disclosed….
In sum, while the First Amendment interests of WFA and its donors at stake in this case are substantial, WFA has failed to make a showing that it would suffer irreparable harm if its motion for a preliminary injunction is denied. Contrary to WFA's contention, it need not refrain from spending more than $250 on independent expenditures in order to protect the identities of its donors. And while the timing and wording of its solicitations of contributions may trigger a duty to disclose donors who respond to such solicitations, the record is not sufficiently developed to permit the kind of relief WFA has requested.