Appellate Court to Rule on Secrecy of Donors

A case pending before a federal appellate court could change disclosure rules for some politically active groups that conceal their donors.

The case stems from a lawsuit brought in 2000 by the tax-exempt advocacy organization California Pro-Life Council Inc. to block the state’s Fair Political Practices Commission from forcing it to name its contributors.

The nonprofit group has spent donors’ money on campaign mailings and other activities to oppose initiatives for assisted suicide, public financing of political campaigns, an open primary election system and same-day voter registration.

The council files public reports disclosing what it spends on political campaigns but, like many similar organizations, has shielded its patrons’ identities.

Under state and federal tax law, nonprofit groups are not required to report the sources of their money. But the Fair Political Practices Commission, which enforces state campaign finance law, contends such groups should identify their donors if they engage in political campaigns.

The council’s attorneys argue that it should be permitted to protect donors’ confidentiality because most of its money is used for activity considered nonpolitical.

Representing the FPPC, Atty. Gen. Bill Lockyer’s office contends that the Pro-Life Council is like any other political action committee and therefore should name its donors, as other PACs are required to do. Otherwise, Lockyer contends, the state lacks information needed to enforce campaign laws, and the public doesn’t know who is paying for arguments on important policy matters.

“It is truth in advertising, honesty in government,” said Lockyer.

In written arguments, Lockyer cited as PAC activities the council’s campaigns for and against initiatives, against the confirmation of California Chief Justice Ronald George, and in favor of Rep. Dan Lungren (R-Gold River) for governor in 1998.

U.S. District Judge Frank C. Damrell Jr. ruled against the council in 2005. The group appealed to the U.S. 9th Circuit Court of Appeals, which is expected to hear arguments later this year.

Attorney James Bopp, representing the council, said a ruling for the state would threaten the 1st Amendment right of free association. That protection has its roots in the 1940s, when the state of Alabama sought to obtain the identities of NAACP members.

“Politicians take lawful and unlawful means to punish their opponents,” Bopp said. “That realization has given rise to the constitutional protection of the freedom of association.”

Bopp, based in Indianapolis, specializes in representing Republican and antiabortion groups in legal efforts to limit disclosure and defeat restrictions on campaign donations and spending.

A win by Bopp “would eviscerate any campaign finance disclosure” law, said Paul S. Ryan, associate legal counsel at the Campaign Legal Center in Washington, D.C., which filed a brief siding with the state. And although the case focuses on a ballot measure, Ryan said, it could be extended to candidate campaigns.

Advocates of more disclosure say voters often make decisions based on who funds campaigns. Bopp said voters can simply ignore arguments whose backers are unknown.

“Arguments for or against a ballot measure can be judged on their merits,” he said.

Bopp added that the U.S. has a rich history of anonymous speech.

For example, the Federalist Papers, essays on democracy written by some of the founding fathers, were published anonymously.