A new piece in The Federalist is putting national attention on a New Mexico campaign finance law that critics say forces civic groups to choose between speaking about elected officials and exposing private donors to the government.
The article, written by Marc Wheat and Mitchell Bahnsen, focuses on Rio Grande Foundation v. Oliver, a First Amendment case now being pushed toward U.S. Supreme Court review after the Tenth Circuit upheld New Mexico’s donor-disclosure rules.
At issue is a planned Rio Grande Foundation legislative scorecard — the type of voting record civic groups, newspapers, watchdogs, and taxpayer organizations have published for decades. The scorecard would have informed New Mexicans about how lawmakers voted on key issues. It did not tell voters which candidate to support or oppose.
But because the scorecard named candidates and was planned within a pre-election window, New Mexico’s Campaign Reporting Act treated the communication as an “independent expenditure,” triggering donor-disclosure requirements.
As The Federalist put it, “A voting scorecard shouldn’t trigger a government demand for supporters’ home addresses.”
Under the law, an organization that spends more than $1,000 on certain communications referencing a candidate or ballot measure near an election can be forced to disclose donors who gave more than $5,000 during a two-year election cycle, unless those donors affirmatively opt out.
Critics say that structure turns ordinary issue speech into a trap. A donor may support a nonprofit’s broad work on taxes, government transparency, education, or free markets without realizing that a future mailing could place his or her name and address in a government disclosure system.
“A $5,000 donation to a nonprofit organization that publishes voting records is hardly identical to a campaign contribution or an endorsement of any candidate, yet the state treats them the same,” Wheat and Bahnsen wrote.
That is the heart of the controversy. Supporters of disclosure laws argue voters have a right to know who is funding political messages. But opponents say New Mexico’s law goes far beyond campaign advocacy by sweeping in issue groups that merely mention public officials close to an election.
The Rio Grande Foundation says the law chilled its speech. In Supreme Court filings, the group said it planned to mail its “Freedom Index,” a legislative scorecard tracking lawmakers’ votes, to thousands of voters within 60 days of the 2020 general election. It did not do so because of the state’s donor-disclosure requirements.
The group argues that donor privacy is part of the First Amendment right to free association. The concern is not abstract. Donors to controversial causes can face harassment, threats, employment pressure, social retaliation, and efforts to punish them for supporting disfavored speech.
The Federalist piece pointed to the landmark 1958 case NAACP v. Alabama, in which the Supreme Court stopped Alabama from forcing the NAACP to disclose its membership lists. The Court recognized that forced disclosure could expose members to retaliation and chill association.
The article also cited Americans for Prosperity Foundation v. Bonta, the 2021 Supreme Court case striking down California’s donor-disclosure regime for charities. In that case, the Court held that California’s requirement burdened First Amendment rights and was not narrowly tailored.
For conservatives, the New Mexico case raises the same basic question: why should citizens have to surrender privacy to support a nonprofit that publishes a voting record?
The Federalist also invoked McIntyre v. Ohio Elections Commission, in which the Supreme Court wrote that “anonymity is a shield from the tyranny of the majority.”
That line is especially relevant in a political climate where people are routinely targeted for donations, statements, affiliations, and even past political positions. The Federalist noted that donors to California’s Proposition 8 faced harassment after their names became public, and that Mozilla co-founder Brendan Eich was later forced out of his own company after his donation to the measure resurfaced.
The Tenth Circuit sided with New Mexico, finding the disclosure requirements sufficiently tied to the state’s interest in informing voters about who funds large election-related communications near elections. But the Rio Grande Foundation and its supporters argue that the lower courts are applying too weak a standard to laws that burden anonymous speech and association.
They are asking the Supreme Court to clarify whether laws forcing disclosure of political association should face strict scrutiny, the highest level of constitutional review, rather than the more flexible “exacting scrutiny” standard that courts have often applied.
The case now puts New Mexico at the center of a national free speech fight.
For Piñon Post readers, the stakes are obvious. If a nonprofit can be forced to expose donors simply because it mails a voting scorecard too close to an election, that gives government enormous power to chill criticism of politicians at the exact moment voters are paying attention.
New Mexico voters have every right to know how their elected officials voted.
And citizens have every right to support groups that publish that information without being placed on a government list.
The Supreme Court should take the case and decide whether New Mexico’s law protects transparency — or punishes speech.