Donor Privacy and Disclosure Digest: November 2023

Welcome to Ballotpedia’s Donor Privacy and Disclosure Digest! This month’s issue will be our second-to-last edition. Our final edition will arrive on Dec. 7. 

We are so grateful for your readership over the past four years and want to thank subscribers for supporting Ballotpedia’s coverage of donor privacy and disclosure policy. We appreciate you being a Ballotpedia newsletter subscriber. If you haven’t already, we hope you’ll consider our other newsletters which offer in-depth reporting on specialty topics just like this. 

In this issue, you’ll find:

  • Circuit court rules against Wyoming disclosure law: A federal court finds a Wyoming disclosure law unconstitutional.
  • In the courts: The latest on pivotal judicial decisions and developments across the country.
  • State by state: An analysis of this month’s state legislative activity, including bill status, topic, partisan sponsorship, and more. 
  • What we’re reading: Keep up to date on the stories and analyses we’ve been reading this month.
  • Dig deeper: Want more information on the topics covered in this issue? We’ve got you covered.

Circuit court rules against Wyoming disclosure law

On Oct. 11, the U.S. Court of Appeals for the Tenth Circuit ruled that a Wyoming donor disclosure law was unconstitutional, upholding a lower court’s decision. The nonprofit group Wyoming Gun Owners, which describes itself as “defending and advancing the 2nd Amendment rights of all law-abiding citizens in the state of Wyoming,” filed the original complaint in 2021 after it was fined for violating the state’s disclosure statutes.

Section 22-25-106(h) of Wyoming law requires organizations spending more than $1,000 on materials advocating for the success or defeat of candidates for public office to file an itemized statement of contributions and expenditures. The statement must contain the names of any donors who contributed more than $100.

Before the 2020 primary election, Wyoming Gun Owners spent $1,229 to air a radio ad that mentioned state Senate candidates. Then-Deputy Secretary of State Karen Wheeler fined the group $500, saying the ads “can only be reasonably interpreted as an appeal to vote” for one of the candidates. The group filed a lawsuit in the United States District Court for the District of Wyoming in 2021, alleging that the law violated its First Amendment rights. 

In July 2022, the district court ruled the disclosure statutes were not tailored narrowly enough to pass exacting scrutiny and barred the state from requiring the group to disclose its donors. The state appealed the decision to the circuit court. In the appeal, the state argued that “The only way to inform the electorate of who is speaking about candidates before an election is to require entities to report contributions and expenditures related to electioneering communications. Without knowing who funded an electioneering communication, the electorate will be unable to determine whether quid pro quo corruption has occurred.”

Writing for the court, Judge Timothy M. Tymkovich, a George W. Bush (R) appointee, said, “To comply with the First Amendment, a disclosure regime must offer appropriate and precise guidance, defining how actors—sophisticated or otherwise—should structure internal accounting mechanisms.” Tymkovich added, “The regime’s requirement that expenditures for speech ‘related to’ candidate campaigns must be disclosed is void for vagueness — again, as applied to WyGO.” The court also ruled that Wyoming Gun Owners is entitled to attorney fees. Chief U.S. Circuit Judge Jerome Holmes, another Bush appointee, and Judge Joel Carson, a Donald Trump (R) appointee, joined the decision.

Institute for Free Speech Senior Attorney Del Kolde said, “This decision recognizes that Americans for Prosperity tightened the exacting-scrutiny standard for disclosure regimes by requiring narrow tailoring. This is an important message that disclosure regimes must do more than pass intermediate scrutiny.” Kolde also said the ruling “implements the Supreme Court’s course correction on the meaning of ‘exacting scrutiny’ from Americans for Prosperity Foundation v. Bonta.”

The Wyoming Attorney General’s Office has not released a statement on the court’s decision. As part of the ruling, the court remanded the case to the district court to assess attorney fees owed to the group.

In the courts

Groups join amicus brief in federal lawsuit

More than 70 groups joined an amicus brief filed on Sept. 27 in an Ohio nonprofit’s lawsuit against the Internal Revenue Service (IRS) in the U.S. District Court for the Southern District of Ohio. The Buckeye Institute, which describes itself as an “educational institution—a think tank—whose mission is to advance free-market public policy in the states,” sued the IRS in December 2022. The group alleged that federal law requiring nonprofits to disclose donor information to the IRS violates the First Amendment. Buckeye Institute President and CEO Robert Alt said, “The Buckeye Institute has experienced firsthand the chilling effect that forced donor disclosure has on the freedom of association,” and that fears of disclosure had caused some donors to stop contributing because they were “hoping to avoid any political retribution.” In a brief supporting the case’s dismissal, attorneys for the New York University Tax Law Center said, “A finding that the requirement is unconstitutional would directly undermine the federal tax base and would threaten the integrity of the tax system. The requirement is crucial to the federal government’s revenue collection efforts, and it should be upheld in its entirety.”

State by state

Since Sept. 5, state legislatures have not acted on any donor privacy and disclosure bills. We have followed 55 bills in 2023. In comparison, we tracked 77 bills at this point in 2022 and 41 bills at this point in 2021. Click here for a complete list of all the bills we’re following.

States have approved more donor privacy and disclosure legislation this year than in the past three years, with the number of bills passed increasing yearly since 2020. See our December edition for an analysis of all the bills we have covered from 2020 to 2023. 

The charts below show enacted donor privacy and disclosure bills by partisan sponsorship and all bills by state trifecta status and sponsorship. 

What we’re reading

Keep up with the latest events in the world of donor privacy and disclosure policy by exploring the stories linked below. 

Dig deeper

Are you hungry for more information on the topics we covered in this edition? Check out the following Ballotpedia pages: