AO 2009-01: Renewal of Socialist Workers Party’s partial disclosure exemption

The Federal Election Commission has renewed the partial reporting exemption for the Socialist Workers Party, the Socialist Workers Party National Campaign Committee, other Socialist Workers Party committees and authorized committees of Socialist Workers Party federal candidates (collectively “the SWP” or “SWP committees”) until December 31, 2012. The Commission has extended the exemption for the next four years, as opposed to the six years that it has granted in previous advisory opinions on this matter.

Background

The Federal Election Campaign Act (the Act) requires that political committees file reports with the Commission that identify individuals and other persons who make contributions over $200 during the calendar year. 2 U.S.C. §§434(b) (3), (5) and (6). According to FEC regulations, identification, in the case of an individual, includes his or her full name, mailing address, occupation and the name of his or her employer.¹

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court recognized that, under certain circumstances, the Act’s disclosure requirements as applied to a minor party would be unconstitutional because the threat to their First Amendment rights resulting from disclosure would outweigh the interest in disclosure. According to the Court’s opinion, “minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim [for a reporting exemption]…The evidence offered need only show a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either the government or private parties.” 424 U.S. at 74.

The SWP was first granted a partial reporting exemption in 1979 in a consent decree that resolved Socialist Workers 1974 National Campaign Committee v. Federal Election Commission, Civil Action No. 74-1338 (D.D.C. 1979). In that case, the SWP brought an action for declaratory, injunctive and affirmative relief, alleging that specific disclosure sections of the Act deprived the SWP and their supporters of their First Amendment rights because of the likelihood of harassment resulting from mandatory disclosure of contributors and vendors. The consent decree exempted the SWP from the Act’s requirements to disclose the identification of contributors to the SWP (including lenders, endorsers and guarantors of loans) and the identification of persons receiving expenditures from the SWP. At the same time, however, the decree required the SWP to maintain records in accordance with the Act and to file reports in a timely manner.

SWP’s first partial disclosure exemption was extended through 1984. The decree established a procedure for the SWP committees to apply for a renewal of the exemptions. The court granted a renewal in 1985; however the SWP missed the deadline for reapplication for the exemption through the courts in 1988.² Subsequently, they have sought extension of this exemption through the FEC’s advisory opinion process, which has renewed SWP’s partial reporting exemption since 1990 (see AOs 2003-02, 1996-46 and 1990-13). Each of the FEC’s prior renewals covered periods of approximately six years up until December 31, 2008.

Request for renewal

In AOs 2003-02, 1996-46 and 1990-13, the Commission noted that, in granting and renewing the exemption, it considered both current and historical harassment. These renewals were based, in part, on the evidence of harassment since 1985, 1990 and 1997, respectively. The very nature of the periodic extensions indicates that, after a number of years, it is necessary to reassess the SWP’s situation to see if the reasonable probability of harassment still exists.

The current request for renewal demonstrates that the SWP has been a minor party since it was established. No SWP candidate has ever been elected to public office in a partisan election. Data from the 2004, 2006 and 2008 elections show very low vote totals for the SWP Presidential and other federal candidates. FEC records and facts provided by the SWP also show a low level of financial activity by the SWP political committees. Furthermore, unlike committees of several other minor parties, the SWP National Campaign Committee has never qualified, or even applied, for national committee status.

The SWP’s request also must be evaluated in the context of the relationship between the SWP and various federal, state and local law enforcement authorities and private parties. The previous AOs extending the partial reporting exemption describe FBI activities targeted at disrupting SWP activities between 1941 and 1976 and also referred to statements made in affidavits submitted by federal governmental officials in several agencies expressing the need for information about the SWP based on the officials’ unfavorable perceptions of the SWP. The advisory opinions also discussed the statements of SWP workers and candidates and media reports, among other sources, describing incidents of private threats and acts of violence and vandalism, harassment by local police and difficulties with other governmental authorities experienced by the SWP and those associating with it from 1985 through 2002.

In addition, the recent request included numerous statements dated from late 2002 to 2008 attesting to incidents of harassment or intimidation that add to SWP’s long history of harassment and intimidation. The statements provided by the requestor fall into the four following categories:

• Statements attesting to the fear that potential SWP supporters have of being identified as an SWP supporter;
• Statements and materials attesting to alleged hostility from private parties to SWP activities;
• Statements and materials attesting to alleged hostility from local government law enforcement sources to SWP activities; and
• Statements attesting to other alleged governmental intimidation.

Analysis

As a threshold issue, in applying the standard established by the court cases and court decrees described above, the Commission must determine whether the SWP continues to maintain its status as a minor party. See Buckley, 424 U.S. at 68- 74. Based on the facts presented, the Commission concluded that, as evidenced by the low vote totals for SWP candidates, the lack of success in ballot access and the small total amounts contributed to SWP committees, the SWP continues to maintain its status as a minor party.

Next, the Commission must weigh three factors in making its determination:

• The history of violence, harassment and threats against the SWP;
• Evidence of violence, harassment and threats since 2002; and
• How these factors balance against the governmental interest in disclosure by the SWP committees of the identifications of contributors and recipients of expenditures.

The Commission concluded that the long history of threats, violence and harassment against the SWP and its supporters still had some relevance and that the evidence covering the end of 2002 through 2008 indicated that there is still a reasonable probability that contributors to, and vendors doing business with, the SWP would face threats, harassment or reprisals if their identifications were disclosed.

The Commission concluded that, due to the very small total amounts of contributions and the very low vote totals for its candidates in partisan elections, the activities of the SWP have little if any impact on federal elections and thus the governmental interest in obtaining the identifying information of contributors to and vendors doing business with the SWP continues to be outweighed by the reasonable probability of threats, harassment or reprisals resulting from such disclosure.

The Commission therefore granted the SWP committees a continuation of the partial reporting exemption. Although the evidence presented by the SWP demonstrated some continued incidents of violence and harassment since the granting of the last exemption renewal, the Commission concluded that those incidents appear to be of lesser magnitude than those referenced in court opinions and in prior advisory opinions granting the exemption. Thus, the Commission granted a four-year, rather than a six-year, extension. The shorter exemption period will allow the Commission to reassess the conditions presented by requestors against the interest of disclosure at that time.

As provided since AO 1996-46, the partial reporting exemption requires the SWP to assign a code number to each individual or entity from whom it receives one or more contributions aggregating in excess of $200 in a calendar year or applicable election cycle. That code number must be included in FEC reports filed by each committee in the same manner that full contributor identification would otherwise be disclosed. The committee’s records must correlate each code number with the name and other identifying data of the contributor who is represented by that code in order to comply with the Act’s recordkeeping requirements.

The SWP may submit a new advisory opinion request seeking a renewal of the exemption up to sixty days prior to December 31, 2012. If a request is submitted, the Commission will consider the factual information then presented as to harassment after December 31, 2008, or lack thereof, and will make a decision at that time as to renewal.

The partial reporting exemption will apply to the following sections of the Act: 2 U.S.C. §§434(b)(3) (receipts of a political committee), 434(b)(5) and (6) (expenditures and disbursements by a political committee), 434(e) (reporting by political committees), 434(f) (electioneering communication disclosure) and 434(g) (independent expenditure reporting). Please note that the SWP and the committees supporting SWP candidates must still comply with all other reporting obligations such as electronic filing and reporting their independent expenditures while omitting the names and identifications of contributors, donors and vendors.3 In addition, the Commission declined to rule on whether or not to grant an exemption from the new lobbyist bundling disclosure reporting requirements since the SWP has established that is has not and does not anticipate receiving such bundled contributions, thus rendering the question purely hypothetical. 2 U.S.C. §434(i) and 11 CFR 104.22.

The SWP committees must still comply with all of the remaining requirements of the Act and Commission regulations.

AO 2009-01: Date Issued: March 20, 2009; Length: 13 pages.

¹ 11 CFR 100.12 includes this definition for an individual, and also defines “identification” for any other person as the person’s full name and address.

² The 1985 agreement also exempted the SWP from reporting the identification of persons providing rebates, refunds or other offsets to operating expenditures and persons providing any dividends, interest or other receipts.

³ The Commission noted that the partial exemption does not extend to individual SWP supporters who, as individuals, engage in activity that might require them to file reports of their own, such as electioneering communications under 2 U.S.C. §434(f) and independent expenditures under 2 U.S.C. §434(g)