Law & Principles

Ray Carter | March 5, 2020

Free speech argument prevails over ‘dark money’ complaint

Ray Carter

Protection of free speech prevailed over complaints of “dark money” in legislative debate as the Oklahoma House of Representatives voted to increase privacy protections for donors to nonprofit entities.

House Bill 3613, by Rep. Terry O’Donnell, creates the “Personal Privacy Protection Act.” The law would ban state government entities from forcing nonprofits to disclose the identities, home addresses, and other personal information of supporters.

“For you First Amendment fans, this is a bill for you,” said O’Donnell, R-Catoosa. “It protects an individual’s right to organize, make charitable donations, and join nonprofit organizations without having their personal membership or decisions be subject to public disclosure.”

Rep. Andy Fugate, D-Oklahoma City, objected that the groups covered by the legislation might include “dark money” organizations that “advocate on behalf of a specific issue.”

“Effectively, this would then keep the general public from seeing who has donated to that advocacy,” Fugate said.

However, the bill does not alter existing requirements for public reporting of donors to political candidates and various political campaigns.

O’Donnell noted the legislation has been supported by organizations from all ends of the political spectrum, including the conservative American Legislative Exchange Council (ALEC) and the liberal American Civil Liberties Association (ACLU).

Protection of donor privacy rights has been considered a constitutionally protected form of free speech since a 1959 ruling by the U.S. Supreme Court. In that case, the state of Alabama sought to compel the National Association for the Advancement of Colored People (NAACP) to make public its membership lists. The NAACP was actively advocating for the civil rights of blacks in Alabama at that time.

The U.S. Supreme Court sided with the NAACP and ruled, “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.”

However, efforts to publicly reveal the identities of various organizations’ supporters has continued, ranging from individuals who support issue-advocacy organizations to those who support homeless shelters. Since 2006, attorneys general in New York and California have tried to obtain donor information of organizations.

But Fugate urged lawmakers to draw a distinction between various types of advocacy.

“In the United States advocacy is an important role of things that we do when we are trying to convince people of things,” Fugate said. “The problem I have with this bill is that funded advocacy is something that is far different.”

He said a 2016 sales tax increase proposal, which would have been earmarked for various education uses, was “effectively torpedoed at the last minute by a lot of money that came into an election that spread a lot of false information.”

“At least at the conclusion of that election, in the final filings, we were able to see who it was that funded that process,” Fugate said. “My concern with this is that what we are effectively doing is putting a veil of secrecy on top of advocacy, and that’s a bad place for us to be as a state and as a country.”

O’Donnell noted the bill “does not exempt” groups like the sales-tax opponents from having to report contribution information to the Ethics Commission.

“The First Amendment guarantees our right to engage in public discourse and to assemble freely, and this is basically preventing an AG (attorney general) or some state agency from collecting all the names of the members of the ACLU and then publishing that, deciding that there’s some sort of an ‘enemy of the state’ kind of a situation,” O’Donnell said. “And I think that this truly embodies the fabric and the content of the First Amendment.”

HB 3613 passed on a bipartisan 77-13 vote. While all opponents were Democrats, a substantial share of the House Democratic caucus joined Republicans in voting for the bill, including House Democratic Leader Emily Virgin of Norman.

A similar measure received strong support from both parties when it passed unanimously out of the Oklahoma Senate earlier this week.

Ray Carter Director, Center for Independent Journalism

Ray Carter

Director, Center for Independent Journalism

Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.

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