Licenses for speech may one day be as common as licenses for driving, if the state of Delaware has its way. A provision of the Delaware Elections Disclosure Act passed in 2012 and upheld by the Third Circuit Court of Appeals is threatening the ability of nonprofit organizations to produce simple voter guides that report the positions of candidates without endorsing or opposing them. One group, backed by the Center for Competitive Politics, is asking the Supreme Court to weigh in before the state is allowed to violate the speech and privacy rights of nonprofits.
Delaware Strong Families (DSF) is a 501(c)(3) organization that is federally prohibited from advocating for candidates. The group produces a voter guide that is purely informational and contains a disclaimer from DSF President Nicole Theis explicitly telling readers that “[i]t should not take the place of your effort to personally evaluate a candidate.”
Despite these facts, Delaware’s new law classifies voter guides such as DSF’s as “third party advertisements” that trigger government reporting requirements just as complicated as those in place for political ads run by candidates and PACs. Any group that spends $500 on communications mentioning a candidate within two months of an election has to turn over the names and addresses of their donors who contributed as little as $100 during the course of the preceding election period. In addition to being strict, the law is also complicated: election periods vary based on which office a candidate is running for.
These types of reporting requirements are common for well-funded political groups that run ads intended to sway the outcome of an election. For small nonprofit groups that seek simply to educate and motivate voters to go to the polls informed – and which are already prohibited by law from engaging in political activity – they are absurd and unreasonable.
In 2012, DSF published a nonpartisan voter guide with information on the positions of every federal and state candidate on important issues to the community. For that they should be commended, not punished. DSF even hired outside counsel to ensure that their guide complied with their (c)(3) status, but Delaware is cracking down anyway. Is the state opposed to voters having access to information about its candidates?
To continue publishing its voter guide under the current law, DSF would have to violate the privacy of its supporters and file complicated reports on the same schedule as PACs, under penalty of perjury. Compliance is not cheap or easy, typically requiring legal counsel, a treasurer, and other record-keeping staff. Many small organizations do not have access to those resources, and many donors will not give if they know their personal information will wind up in a public database.
The law has no benefits to justify these extreme costs. Voters gain nothing from knowing the identities of donors to groups that do not support candidates. These are not campaign donations. Without a link from money being spent to a candidate being benefitted, there’s no value in the data.
Delaware likely knows that it’s not actually shedding light on politics by cracking down on nonpartisan voter guides. On the same day that the Delaware Elections Disclosure Act was signed into law, Governor Jack Markell also signed a separate bill that increased the noncompliance penalty to $50 per day. This is a conscious effort to silence nonprofits with burdensome regulations and harsh penalties.
Worse still, the law will favor wealthy interests that can afford the lawyers, accountants, and other staff to game the regulations. For ordinary citizens, the cost of speaking out just got a lot higher.
The Delaware Elections Disclosure Act is suffocating efforts to provide nonpartisan information to voters. The First Amendment should stand in its way.
Luke Wachob is the McWethy Fellow at the Center for Competitive Politics in Alexandria, Va, which represents Delaware Strong Families in the case.