This week is the 20th anniversary of Sunshine Week, “a nonpartisan collaboration among groups in the journalism, civic, education, government and private sectors that shines a light on the importance of public records and open government.”
Every American has reason to celebrate government transparency and laws like the Freedom of Information Act, which protect our access to government information. Open government empowers citizens to hold officials accountable, an important feature of democracy.
However, every year activists and groups pushing for more expansive disclosure mandates attempt to co-opt the week to celebrate laws and regulations that invade the privacy of Americans who are not in government.
But transparency has nothing to do with the government publicizing the political activity and associations of private citizens. Transparency is for the government, privacy is for the people.
When interviewed by OpenSecrets this week, Institute for Free Speech founder and former FEC Chair Bradley A. Smith opined on the current campaign finance landscape: “[T]he political left has learned that they can live with the Citizens United decision pretty well, and funding has not been a problem for Democrats.” Smith added, “Disclosure has become kind of the last battleground.”
Disclosure of contributions to campaigns and groups requires personal information about the donor, often including their name, home address, employer, and occupation, which usually becomes public.
People have many different motivations to keep these contributions private. Just look to this week’s news for two examples of good reasons.
On his successful interview show Club Shay Shay, three-time Super Bowl champion, sports commentator, and host Shannon Sharpe recently explained that he does good acts not for praise, not to see his name in print, but to do something “special” privately. He says, “If I give, if I donate something, if you mention my name, I won’t give it to you again.”
Donors like Sharpe do not want the publicity, and their goodwill is contingent on privacy.
Others have more to fear. In this hostile political climate, many people are afraid of retaliation based on their associations.
This week, FBI Director Kash Patel addressed “the alarming rise in ‘swatting’ incidents targeting media figures.” He continued, “The FBI is aware of this dangerous trend, and my team and I are already taking action to investigate and hold those responsible accountable. This isn’t about politics—weaponizing law enforcement against ANY American is not only morally reprehensible but also endangers lives, including those of our officers. That will not be tolerated.”
According to the Department of Homeland Security, swatting is “making malicious hoax calls to emergency services to falsely report an ongoing emergency such as a violent crime or explosive device at a certain location. The intent is to cause large-scale deployment of Special Weapons and Tactics (SWAT) teams, bomb squads, and other police resources. Individuals and institutions are often unaware of the emergency response, causing confusion, frustration, and potential use of force that may result in harm for the target and responding officials.” Sadly, swatting can even lead to death.
Over the past few days alone, malicious actors swatted right-leaning influencers Owen Shroyer, Juanita Broaddrick, Matt Von Swol, Larry Launton, and Dustin Garage. According to a popular X account that used AI to analyze the swatting incidents, the top identifying factor among the recent victims is association with Elon Musk, and/or prominence in alt-media such as InfoWars or War Room.
These swatting incidents occurred one week after Supreme Court Justice Amy Coney Barrett’s sister received a bomb threat.
Expanding disclosure laws puts ordinary Americans at risk of these disgusting tactics from activists.
To be clear, there’s no indication that those responsible retrieved the addresses through donor disclosure records, but the vast trove of personal information disclosed to the public could easily be a source of targeting in the future. The potential for harassment is genuine and severe, and the information we can glean from disclosure is often trivial, misleading or inaccurate, and prone to misuse.
The Supreme Court ruled in 2021’s Americans for Prosperity Foundation v. Bonta, “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” In that case, the Court upheld the rights of Americans to keep their memberships and financial support for causes and organizations private from state officials unless the government had a legitimate reason to seek the information.
And despite the ruling, according to an eye-opening report from People United for Privacy, legislative and regulatory efforts in 34 states threaten to expose Americans’ private donations to nonprofit causes.
On the candidate-giving side of disclosure, the Federal Election Commission (FEC) requires “conduits” like ActBlue and WinRed to publicly disclose donations, even of small-dollar amounts. Donating even one dollar to a candidate could result in your personal information being posted online for anyone to find. That’s why we are representing a client who is suing the FEC.
“A small-dollar donor’s privacy is constitutionally protected because a modest contribution can’t be corrupting,” said Institute for Free Speech Senior Attorney Charles “Chip” Miller. “That’s why direct small-dollar donations are not publicly reported. This discrepancy requiring reporting of indirect donations violates the First Amendment and must end. Undoubtedly, most of the millions of citizens who donate to federal candidates online don’t know that such a small contribution results in a loss of privacy.”
Disclosure laws present significant First Amendment harms. Let’s shine a light on the privacy guaranteed by the First Amendment this “Sunshine Week.”
