The irony would be funny if it weren’t so frightening. A Minnesota Senate committee that refuses to hear public testimony is considering a bill that would massively expand the state’s regulation of political speech — under the guise of improving transparency.
This measure, Senate File 214, would require any group that simply mentions the name of a candidate within 30 days of a primary or 60 days of a general election to report the names and home addresses of many of their supporters to the government. These reports would then be published online and made accessible to anyone, from current and prospective employers to nosy neighbors.
Unsuspecting groups don’t have to tell the public how to vote, or even whether to vote at all. If they simply pick the wrong month to say a candidate’s name, the speech police will be on their trail, demanding their donor list.
Groups will be faced with a stark choice: keep quiet or risk exposing their supporters to harassment. In conjunction with our increasingly polarized politics, the Internet age has made harassing citizens for their views much easier and more common. In recent years, individuals have suffered threats, vandalism, and even campaigns to have them fired from their jobs as a result of having their personal information and political affiliations posted online.
The 2008 fight over same-sex marriage in California was one high-profile example, garnering enough attention to be cited in a concurring opinion by Supreme Court Justice Clarence Thomas. Same-sex marriage opponents in the state had their property damaged or received death threats (some recalled being told, “If I had a gun I would have gunned you down along with each and every other supporter”), and some paid for their views with their jobs. Those who lost their jobs included a restaurant manager, a film festival director and a theater director. Anyone working for a business susceptible to public scrutiny suddenly had to choose between supporting a cause they believed in and risking their employment.
These issues are not unique to opponents of same-sex marriage. Just last year, the New York state chapter of the American Civil Liberties Union sought an exemption from reporting its supporters’ personal information to the state’s government and compiled over 10 pages documenting recent instances of threats, harassment and vandalism levied against its members and staff. In one chilling example, “F — u ACLU” and “die f-g” were painted on an NYCLU member’s car parked in the driveway.
No matter what issue you’re passionate about, you can bet there are passionate people on the other side, too. And in a nation of millions, some individuals are bound to cross the line.
To make matters worse, the harassment risk in Senate File 214 is amplified by its incredible overreach. The bill would apply to groups that are prohibited by federal law from engaging in any campaign intervention whatsoever — not just groups spending on elections. It applies to printed materials, e-mails and text messages — not just television or radio advertising. In fact, the measure is so vaguely worded that it could even be used to regulate messages posted on Facebook and Twitter.
Is this what the founders intended by the First Amendment, which instructs government officials that they should “make no law … abridging the freedom of speech?”
When faced with similar laws in the past, federal courts have answered “no.” Regulations that leave nonprofits with little sense of what they can and can’t say, and when they can and can’t say it, are unconstitutional. As far back as the 1940s, the Supreme Court has observed that vagueness in laws regulating speech “blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.” An unclear law that scares groups into silence can be just as bad as one that outright censors them.
It is hard to imagine what good Senate File 214 could accomplish. Transparency is achieved when the law allows citizens to keep tabs on their government, not when government keeps tabs on its citizens. Current Minnesota law satisfies this requirement. By contrast, Senate File 214 enables the government to track what groups of like-minded citizens discuss among themselves and with others.
That won’t do anything to improve transparency, fight corruption or increase public trust. Rather, this ploy will harm the right of all Minnesotans to support the causes they believe in by invading their privacy and fostering an environment in which citizens are vulnerable to harassment for their beliefs. In turn, like-minded citizens will be discouraged from joining together, and their voices will be silenced.
Since the time of the nation’s founding, there’s been a better way: the First Amendment. Citizens have the right to form associations and speak in one voice about the issues that matter to them. Next time you hear politicians preaching “transparency,” pay close attention to the details. Your privacy depends on it.
Annette Meeks is CEO of the Freedom Foundation of Minnesota. Matt Nese is director of external relations at the Center for Competitive Politics, the nation’s largest organization dedicated solely to protecting First Amendment political rights.