IRS scandal notwithstanding, on Tuesday, the (Republican-dominated) Texas legislature passed S.B. 346, a bill to force non-profit organizations and trade associations to disclose the names of the people who support them financially. The law exempts unions, but covers groups that spend more than $25,000 or more in independent expenditures about political candidates. This applies even if those expenditures are a tiny fraction of the group’s overall spending.
If Texas legislators had first consulted the Constitution, they would have rejected forced disclosure as a violation of the First Amendment. The Constitution protects organizations from forced disclosure of their members (NAACP v. Alabama, 1958), and does not distinguish between an organization’s members, as with NAACP, and its contributors, as here (Buckley v. Valeo, 1976). Although Buckley upheld the forced disclosure for “organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate,” it first excluded disclosure for “groups engaged purely in issue discussion,” saying the law would have otherwise been “impermissibly broad.” This unconstitutional legislation directly targets those issue-based groups — a 501(c)(4)’s primary purpose is explicitly non-political — and I would expect the First Amendment–friendly Roberts court to agree.