American for Prosperity v. Attorney General of New Jersey, No. 3:19-cv-14228 (D. N.J.) October 2, 2019.
New Jersey enacted a statute intended to render transparent the expenditure of money on political causes, requiring disclosure of donors’ identities where $3000 or more annually was given for “political communications.”
The New Jersey governor refused to sign the bill as initially proposed. While praising the goal of bringing “dark money” to light, the governor feared that the statute as drafted would infringe on First Amendment rights.
The New Jersey legislature then enacted an essentially identical but renumbered bill which the governor signed on the condition that changes be made to ensure conformity with the constitution and election laws.
No changes were made.
Americans for Prosperity, a group that speaks on diverse issues of public concern, sought and obtained an injunction against enforcement of the act.
Americans for Prosperity argued that the statute reached far beyond matters more appropriately reserved for electioneering. The court agreed. The statutory mandate of disclosure of donor identify where speech is intended to influence elections goes too far and is too uncertain to be tolerated under the constitution and case law.
The perceived ills evoked the court’s pointed conference: “Most constitutionally troubling to the Court is the way in which…the Act brings communications of purely factual political information into a disclosure and financial reporting regime historical limited to electioneering communications.” Opinion, p. 38.
Although the court confined its ruling to the facial challenge to the statute, the court opined that where politics as practiced can be observed to have invited threats, harassment, and loss of employment, it is not likely that the statutory scheme would survive as-applied review.