Watchdogs Reiterate to FEC Before Vote that Tea Party Group Does Not Qualify for Disclosure Exemption Originating with NAACP in Jim Crow South

CLC Staff
Nov 20, 2013
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Today, the Campaign Legal Center, joined by Democracy 21, filed comments on two draft advisory opinions released by the Federal Election Commission (FEC) that will be voted on at the FEC’s public meeting tomorrow. The draft opinions have been issued in response to an advisory opinion request from the Tea Party Leadership Fund (TPLF) (AOR 2013-17), which is seeking a rarely-granted exemption from disclosure laws on the grounds that disclosure “would result in threats, harassment, or reprisals from government officials or private parties.” One draft to be considered by the FEC tomorrow would grant the exemption and the other would not.

The exemption stems from a 1958 Supreme Court decision prohibiting the state of Alabama from compelling the NAACP to disclose its membership list at a time when members of the civil rights organization faced grave dangers in the Jim Crow South. The exemption has also been extended over the years to small communist and socialist organizations dating back to the Cold War, with the Socialist Workers Party’s exemption being renewed by the FEC earlier this year.

“This is not a vulnerable and persecuted organization like the NAACP in the Jim Crow South, but instead a group that is part of a highly organized and well-funded movement that has already seen huge successes in state, local and federal elections,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “This Tea Party group comparing itself to the NAACP of old, whose membership feared for its lives and its livelihoods, would fail the laugh test if their request was not so offensive and so outrageous on its face. The Supreme Court has been repeatedly and abundantly clear in upholding disclosure laws that such laws serve a vital public interest in preventing corruption and informing the electorate. Consequently, the Court has maintained a very high bar for exemption, which this group does not come close to reaching. We sincerely hope that the FEC commissioners see this crass and cynical request for what it is and deny the request.”

On October 18, the Campaign Legal Center and Democracy 21 filed comments with the FEC in response to the Tea Party group’s request, detailing the history of the “threats, harassment, or reprisals” exemption and the reasons why this Tea Party group is not entitled to the exemption. In determining whether a group is entitled to the exemption, courts and the FEC must engage in a balancing test. As the Supreme Court made clear in Buckley v. Valeo, the exemption is only available when the “threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that [the disclosure requirement] cannot be constitutionally applied.”

In the comments filed today, the Campaign Legal Center and Democracy 21 urge the FEC to reject the draft opinion that would grant the exemption to the TPLF, noting that the draft opinion omits entirely half of the relevant legal test—consideration of the public interest in disclosure by Tea Party movement organizations. Unlike the Socialist Workers Party, for example, which has never successfully elected a candidate to public office in a partisan election, the Tea Party has had significant electoral and fundraising success. TPLF itself has raised more than $2.3 million since its creation in 2012. Tea Party movement organizations together have raised and spent tens of millions of dollars, with more than fifty Members of Congress participating in the Tea Party caucus. The public interest in disclosure by such a powerful political faction is compelling.

TPLF presented so-called “evidence” to the FEC consisting of little more than news articles about public and private criticism of the Tea Party movement, IRS scrutiny of Tea Party organizations’ applications for tax-exempt status, and suspicions that the group may have been under surveillance by the Department of Homeland Security and other federal agencies based on, among other things a report advising law enforcement agencies to be on the lookout for “rightwing extremist activity, specifically the white supremacist and militia movements.” It is noteworthy that, despite the fact that TPLF has received more than $2.3 million in contributions, it has not presented evidence of a single instance in which one of its donors was harassed. Given the generality of this so-called “evidence”—it pertains to Tea Party movement organizations, generally, not specifically to TPLF—all other Tea Party organizations would likely be entitled to any exemption granted to TPLF.

When weighed against such meager evidence, the public interest in disclosure by the TPLF clearly outweighs any probability of threats, harassment, or reprisals.

To read the comments filed today on the draft opinions, click here.

To read the original comments filed by the Campaign Legal Center and Democracy 21 on October 18, click here.

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