Blog of Rights

House DISCloses the Door on Free Speech

By Sandra Fulton, ACLU Washington Legislative Office at 4:23pm

In 1956, in retaliation for the Montgomery Bus Boycott, Alabama moved to stop the National Association for the Advancement of Colored People (NAACP) from conducting any further business in the state and issued a subpoena that would have forced them to disclose their membership. The NAACP refused to turn over their membership, and in 1958 the Supreme Court decided in the group's favor. In the ruling, Justice John Marshall Harlan declared that “privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

Last week, the House of Representatives decided to throw this idea under the bus by passing the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act. This bill forces politically active organizations to disclose the names of donors giving as little as $600. Demanding disclosure for such a small amount of money violates Americans’ right to privacy, and will have a chilling effect on free speech in our elections. Regulation like this can become a serious problem for supporters of controversial issues where anonymity is not just a matter of preference or convenience. The harassment and attacks on members of the civil rights movement show that anonymity can in fact be a matter personal safety. The ACLU opposes the DISCLOSE Act because its overreaching disclosure requirements will have a deterring effect on the participation of political groups and the public debate that is vital to a robust democracy. We sent a letter to every member of the House outlining these concerns.

Just to kick us while we were down, the House included a provision that would protect anonymity for the largest political groups because they feared the Democrats beholden to the gun lobby, a.k.a. the Blue Dogs, would otherwise not support the bill. Members worked with the National Rifle Association on an amendment that would exclude organizations from the disclosure requirements, but only when they have more than 1 million members, have been in existence for more than 10 years, and have a presence in all 50 states. This means that new organizations like the gay rights groups of the 1960s, pro-life groups of the 1970s and drug law reform groups of today would be forced to reveal their supporters, while the associational rights of the members of well-established and mainstream groups are protected. This makes no sense, and provides the direct opposite effect of the protections the court upheld in the NAACP case.

We understand that members of Congress are concerned about the Citizens United case and the amount of money in elections today, but abandoning our right to privacy and deterring speech is not how to maintain a vibrant democracy. There are many important issues being decided in elections now; some are popular and some are controversial. The First Amendment protects both and guarantees the right of individuals to participate without fear of being targeted for their beliefs.

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