Minnesota climate turns chilly for free speech

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Civic groups engaged in Minnesota communities will soon find it more dangerous to speak about issues of public concern. The Legislature recently pushed through a sweeping elections bill (HF 3) over Republican opposition that Gov. Tim Walz quickly signed into law.

While much ink has been spilled on the measure's election law and voting provisions, other sinister aspects have gone largely unnoticed. The new law puts Minnesotans at risk of targeting and harassment for supporting nonprofit groups. It does so by giving the unelected state Campaign Finance and Public Disclosure Board greater power to regulate these organizations on a subjective basis under a convoluted reporting requirement.

The likely result: Many Minnesotans who give to nonprofits with no intention of supporting political spending may be publicly exposed to harassment and intimidation for their beliefs.

At issue is a concept from campaign finance law known as "express advocacy." Like many other states, Minnesota requires organizations that expressly advocate for the election or defeat of state-office candidates to publicly report their spending and donors. As the U.S. Supreme Court has explained, such requirements can inform voters about the sources of campaign spending so they can evaluate the relationship between candidates and their financial supporters.

"Express advocacy" is typically distinguished from "issue advocacy" — speech by organizations that advocates a position on issues like the state budget, health care, the environment, etc. Unless they deliver an expressly election-related message, organizations engaged in issue advocacy traditionally have not been required to expose their donors' personal information to state officials and the public.

Advocating on issues may sometimes have implications for elections. Nonetheless, Minnesota historically has relied upon a bright-line regulatory standard: Only ads that use words like "vote for," "elect" or "defeat" with reference to a candidate have been subject to donor reporting requirements. This is for good reason: Any law that imposes a broader standard would give the board excessive discretion to pick and choose which organizations to regulate and demand donor information from.

However, this is exactly what HF 3 will do. The measure empowers the board to regulate (or not regulate) organizations based upon whether their speech "could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidates." And who is to decide how a "reasonable person" would interpret a message? The board's unelected bureaucrats and six political appointees.

Presentations given by the board's executive director, Jeff Sigurdson, during legislative hearings illustrate the danger. Sigurdson presented two ads that ran in 2014, one criticizing then-Gov. Mark Dayton for wasteful state spending, and another praising Dayton's fiscal policies. Neither ad discussed Dayton's re-election bid or urged voters to support or oppose Dayton as a candidate. Yet, Sigurdson seemed to imply that the board would regulate both ads under the new authority being granted to it by HF 3.

The board's new regulatory authority is essentially a "know it when I see it" standard. Organizations that speak about public policy issues would be subject to the whims of bureaucrats and political appointees. Groups seeking to avoid burdensome reporting requirements and potential harassment of their supporters will have to pay huge sums to lawyers, either to neuter their public communications or to defend their activities to the board.

Making matters worse, the new law will subject more organizations to a highly convoluted donor reporting requirement concocted by the board. Under this requirement, organizations will likely be required to publicly identify certain donors, regardless of whether those donors gave to support any political spending. In an age of doxxing, cancel culture and growing political rancor, the expansive donor reporting mandated by HF 3 will make advocacy groups all the more hesitant to engage in policy debates and will likely have a chilling effect on donors fearful of public harassment. Vibrant public debate has always been at the forefront of public policy discussions in St. Paul. This new law threatens that important facet of Minnesota life.

Many organizations, including ours, tried repeatedly to raise these concerns with Minnesota lawmakers during the legislative session. Legislators had little interest in our fears and sharply curtailed opportunities for public comment. Citizens have limited openings to inform Minnesota lawmakers about the bills they are considering, making it all the more important for advocacy groups to express their concerns publicly. Ironically, HF 3 would further limit avenues for public debate. A cynic might surmise this is exactly what some Minnesota lawmakers intended.

Annette Meeks is CEO of the Freedom Foundation of Minnesota. Eric Wang is counsel to People United for Privacy.