When S-1500 was first introduced in the Legislature in January 2018, it focused on the disclosure of significant donors (gift of $10,000 or greater) to independent entities that engaged in campaign electioneering, i.e. communications that clearly promoted or opposed a candidate for public elective office or advocated a position on a public question that was being put to ballot. The Brennan Center for Justice extolled S-1500 when it was first introduced, calling it a “national model in the response to the U.S. Supreme Court’s decision in Citizens United.” While one could argue with the breadth of some of its definitional language, the purpose of the original version of S-1500 was tethered to the compelling governmental interest of preventing quid pro quo corruption and requiring disclosure of those who, through their contributions, were seeking to affect the outcome of an election or public referendum. Especially after Citizens United drastically limited the ability of government to limit directly campaign contributions by independent entities, the mandatory disclosure of the source of such contributions is often the best available tool to try to curb the corrupting influence of money on our electoral process.

Although, as the U.S. Supreme Court noted as far back as NAACP v. Alabama, ”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,” given the compelling interest in preventing corruption and maintaining the integrity of our election system, a mandatory disclosure requirement directed towards electioneering has been found constitutional, if done carefully, indeed almost surgically.

But the current political fracas in Trenton is causing legislation to be used like a sledgehammer, when clearly scalpels and tweezers are more appropriate.

Having been referred to the State Government Committee, S-1500 languished for a year without even a hearing (as did its predecessor bill in the preceding legislature). But in January, it was taken off the shelf and transferred to the Budget and Appropriations Committee, and amended to give it an expanded mission: to require “transparency” in the identity of donors to 501(c)(4) and 527 organizations, i.e. social welfare, PACs and other non-profit organizations that engage in pure issue advocacy, supporting or opposing not candidates for office but substantive policies through legislation or regulations. Regardless of whether the money was earmarked for lobbying activities, any gift of over $10,000 to a 501(c) (4) or 527 entity was made subject to quarterly disclosure if it engaged in more than a minimal amount of advocacy ($3,000 in expenditures) concerning ordinary legislation or regulation. By expanding to include issue advocacy, the bill swept into its reach non-partisan advocacy organizations from all parts of the political and cultural spectrum, from the League of Women Voters to the NRA. It is not often that the ACLU and NJ Right to Life are on the same page, but S-1500 has galvanized issue advocacy organizations in opposition, objecting to the onerous reporting requirements it imposes, and perhaps even more fundamentally, to the intrusion upon donor privacy and anonymity that it creates.

Illogically, but predictably from a crass political perspective, entities organized under 501(c )(5) (labor unions) or 501(c) (6) (trade or professional associations such as the Chamber of Commerce) are not covered under S-1500, even though they often engage in the same legislative lobbying activity as a 501(c) (4). The reasons for that omission are not hard to fathom, given current political affiliations in Trenton.

The policy justification for this expansion of S-1500 was not well articulated. The New Jersey Election Law Enforcement Commission had initially sought donor disclosure only for electioneering, but then warmed to an expanded role in regulating issue advocacy. The best public explanation that ELEC’s executive director could muster was “The more I thought about it as time went by, why not”? “Why not?” is hardly a convincing policy rationale for any legislation, and particularly one that has constitutional ramifications. The Brennan Center withdrew its support, now calling the amended bill “the most intrusive in the country [that] will have a chilling effect on citizen participation in government.”

As is the case with most issues in Trenton these days, the true answer is political. The consensus of commentators was that these amendments were intended by legislators to force disclosure of the donors to a particular organization known as New Direction New Jersey, a 501(c)(4) entity that, although not engaged in electioneering or campaign advocacy, is uniformly supportive of Gov. Murphy’s policy agenda at the expense of legislative leadership with whom the governor is in near constant conflict. There was no way to draft a provision that applied to New Direction that did not also apply to a plethora of similarly structured 501(c)(4) entities, so the collateral damage was deemed acceptable by our local politicians.

Gov. Murphy originally conditionally vetoed S-1500 and recommended that it be curtailed to its original purpose of mandating donor disclosure for electioneering organizations. Faced with the prospect of an override, however, and perhaps predicting that eventually the courts would intervene, he capitulated, and the Legislature reenacted and presented to him S-150, which is identical in all respects to S-1500. The governor signed S-150 based upon a vague understanding that a “clean up” bill would ensue, but although such a bill has been introduced (A-5633 (18R)), with bird in hand, legislative leadership has now made it clear that they are in no rush to bring it up for consideration.

And so it will be left to the courts to restore the constitutional principles that we had hoped our legislators would honor without prompting. The group Americans for Prosperity, an issue-advocacy organization sponsored by conservative activists Charles and Edward Koch, was the first to file suit in federal district court (Americans for Prosperity v. Grewal), challenging S-150 as unconstitutional. Other groups, such as the ACLU, have already publicly stated that they will sue as well. If there is any bright side to this tawdry episode of legislation by hormonal impulse, it is that grass roots organizations that are otherwise separated by broad ideological gulfs still share a basic common understanding of constitutional principles, and can thereby unite to fend off attacks on those principles born of partisan rancor.

Editorial Board members Lawrence Lustberg and Edwin Stern recused from this editorial.