Written by Christopher Wysocki, Executive Director, CASE
Senator Debra Bowen, Chair
C/O Darren Chesin, Chief Consultant
Elections, Reapportionment & Constitutional Amendments Committee
State Capitol, Room 2203
Sacramento , CA 95814

RE: OPPOSE SB 36

Dear Senator Bowen:

On behalf of the Consumer Alliance for a Strong Economy, I am writing to formally oppose Senate Bill 36 (Florez & Escutia).

SB 36 would require that nonprofit corporations organized under Section 501 (c4) of the Internal Revenue Code make public its list of supporters if the entity engages in political speech protected under the First Amendment of the United States Constitution.

Groups such as the Consumer Alliance for a Strong Economy have a large number of supporters who contribute freely to promote specific public policies. The sponsors of this legislation object to the names of elected officials being used in paid advertisements that advocate specific policy positions and call on the public to communicate with elected officials and inquire about the performance of the identified representatives.

In this nation, there is a long standing tradition both in practice and in law that individuals may speak out about their elected representatives in an anonymous fashion. The purpose of this anonymity is to protect individuals from retaliation or retribution from the government. In Talley v. California, 362 U.S. 60 (1960), Justice Hugo Black spoke for the Court:

“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”

The rights of groups to assemble for the purpose of political speech and the rights of those people to remain anonymous was also evident in Justice John Harlan’s decision for the court in National Association for the Advancement of Colored People v. Alabama 357 U.S. 449 (1958):

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association .

“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourth Amendment, which embraces freedom of speech .

“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in [citation of numerous cases] the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.”

Senate Bill 36 confuses political discussion with electioneering. With respect to advertisements that seek to influence elections, we fully agree the state has a right to know who is responsible for funding the communication. Full public disclosure is critical when the people are asked to choose their representatives.

However, simply because an elected official is mentioned in an advertisement or people are asked to communicate and inquire about a particular elected official’s performance or actions does not give the government the right to effectively demand the production of a membership list. Doing so would provide the state with an unconstitutional method of stifling free speech.

The United States Constitution gives groups like the Consumer Alliance for a Strong Economy, the Sierra Club, the National Rifle Association, and countless other organizations a fundamental right to express opinions and call into question the actions of elected officials without the risk of disclosing its members. As Justice Harlan wrote in N.A.A.C.P. v. Alabama ,

“Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

Thank you for your attention and consideration of the views of the Consumer Alliance for a Strong Economy. Please call me at (916) 444-1502 is I may answer any questions or provide you with more information.

Sincerely,