Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues
Under current law, FECA requires the public disclosure of certain donors to entities, including § 501(c) organizations, that make independent expenditures and electioneering communications. In general, the identification of donors to such entities is subject to disclosure if their donations exceed a threshold amount and are made to further the entity’s campaign activity.34 In certain situations, however, the identity of any donor whose contribution exceeds the threshold amount may be subject to disclosure, regardless of whether it was made to further the activity.35 The organization may avoid disclosing these donors by establishing a separate account to pay for the activities, which will result in only the donors to that account being publicly disclosed. 36
Some might argue that compelled donor disclosure chills the organization’s and donors’ free speech rights and the donors’ freedom of association rights under the First Amendment.37 In Citizens United, the Court upheld disclosure requirements as applied to the movie that Citizens United produced and the broadcast advertisements it planned to run promoting the movie.38 The Court explained that while they may burden the ability to speak, the requirements “impose no ceiling on campaign-related activities,” and “do not prevent anyone from speaking.”39 At the same time, such requirements would be unconstitutional as applied to an organization if there were a reasonable probability that its donors would be subject to threats, harassment, or reprisals. 40
As mentioned, some have suggested amending the IRC or FECA to mandate the public disclosure of certain donors to § 501(c) organizations beyond that required by current law. Additionally, some have proposed expanding FECA’s disclaimer requirements so that large donors to § 501(c) organizations would be named in the organization’s political advertisements. In general, some of these proposals would differ from the existing provisions described above in that they would require public disclosure of certain donors regardless of the purpose for which the money was donated or used, and do not provide a mechanism by which the organization could limit such disclosure to only those donors whose contributions were used for political purposes.
34 See 2 U.S.C. § 434(c)(2)(C) (requiring any “person” (other than a political committee) that makes an independent expenditure in an aggregate amount or value of more than $250 during the year to disclose, among other things, the identification of donors who contributed more than $200 “for the purpose of furthering an independent expenditure”); see also 11 C.F.R. § 104.20 (requiring corporations, labor unions, and qualified nonprofit corporations that make certain types of electioneering communications to disclose the donors who contributed more than $1,000 “for the purpose of furthering” the communication). This regulation was promulgated prior to Citizens United, and some might question its applicability in light of the Court’s decision.
35 See 2 U.S.C. § 434(f)(2)(E), (F) (requiring any “person” who makes electioneering communications that aggregate more than $10,000 during the year to report, among other things, the identity of donors who have contributed at least $1,000 during the period between the first day of the preceding calendar year and the date of the communication; however, if the disbursement was paid out from a separate bank account that contains only contributions by U.S. citizens or green cardholders made directly to the account for electioneering communications, then only the donors who have contributed at least $1,000 to that account are disclosed).
37 U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”)
38 See Citizens United, slip op. at 50-57. 39 Id. at 51(internal quotations omitted).
40 See id. at 54-55; National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449, 462-63 (1958).
Congressional Research Service