AO 2012-38 – Socialist Workers Party

The Federal Election Commission has renewed until December 31, 2016, 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 Federal candidates of the Socialist Workers Party (henceforth "SWP" or "SWP committees"). The Commission has renewed the exemption based on a long history of systematic harassment of the SWP, including evidence of harassment since 2009 (when the exemption was last granted).

Background

The SWP was first granted a partial reporting exemption 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 supporters of their First Amendment rights because of the likelihood of harassment resulting from mandatory disclosure of contributors and vendors. Furthermore, the SWP alleged that the governmental interest in obtaining identifying information of contributors and recipients of expenditures was diminished because the possibility of an SWP candidate winning or influencing an election was remote. 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. However, the SWP was required to maintain records in accordance with the Act and to file reports in a timely manner. Since 1990, the SWP has sought extension of this exemption through the FEC''s advisory opinion process. See Advisory Opinions (AOs) 2009-01, 2003-02, 1996-46 and 1990-13. The SWP committees ask if they continue to qualify for the partial reporting exemption.

Analysis

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court recognized that, under certain circumstances, the Act''s requirement to disclose the names, addresses, occupations, and employers of persons who contribute over $200 during the calendar year (2 U.S.C. §424(b)) 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 ... will subject them to threats, harassment, or reprisals from either the government or private parties." 424 U.S. at 74.

Following this case law, the Commission must first determine whether the SWP continues to maintain its status as a minor party. 424 U.S. at 68-74. Previously, the Commission has determined that the SWP is a minor party. AO 2009-01 (SWP). As evidenced by the low vote totals for SWP candidates, the lack of success in ballot access, and the small total amounts of contributions to SWP committees, the Commission concludes that the SWP remains a minor party that is out of the mainstream.

Next, the Commission must weigh three factors: 

• The history of violence or harassment, or threats of violence or harassment, directed at the SWP or its supporters by governmental authorities, including law enforcement agencies, or by private parties;
• Evidence of continuing violence, harassment, or threats directed at the SWP or its supporters since the prior exemption was granted; and
• Balanced against these factors, the governmental interest in obtaining identifying information of contributors and recipients of expenditures.

There is a long history of threats, violence, and harassment against the SWP and its supporters by Federal and local law enforcement agencies and private parties. The Commission has consistently viewed the SWP’s requests for exemption from the Act’s reporting requirements in light of this “long history of governmental harassment of the SWP.” AO 2009-01. Reviewing information presented with this request indicates that the SWP and persons associated with it have continued to experience harassment from private sources from the end of 2009 to the present. Although some of the alleged incidents of harassment may seem minor or subject to differing interpretations, there are a number of examples, such as firings and instances of workplace intimidation, as well as verbal threats and harassment, that legitimately raise concern by those associated with the SWP, particularly when these examples are taken together. Considering that these incidents occurred over four years, there are relatively more of them annually than incidents that took place during the six-year period before the Commission when it granted the most recent extension of the partial reporting exemption in AO 2009-01.

Ultimately, the governmental interest in obtaining the names, addresses, and other identifying information of SWP contributors and vendors doing business with the SWP committees in connection with Federal elections remains very low and continues to be outweighed by the reasonable probability of threats, harassment, or reprisals resulting from such disclosure. The SWP has experienced a decline in episodes of harassment of serious magnitude, but has submitted some credible evidence of threats and intimidation. When weighed together with the very small amounts of money raised and the significant past history, the recent evidence of harassment thus satisfies the requirement of demonstrating a reasonable probability of harassment.

Thus, the Commission granted the SWP committees a partial reporting exemption as provided for in the consent agreements and continued in previous advisory opinions. As required in previous advisory opinions, each SWP committee must assign a code number to each individual or entity from whom or which it receives one or more contributions aggregating in excess of $200 in a calendar year or applicable election cycle (depending on the type of committee). See AO 2009-01. Further, the SWP must comply with all of the remaining requirements of the Act and Commission regulations.

At least 60 days prior to December 31, 2016, the SWP may submit a new advisory opinion request seeking a renewal of the exemption. If a request is submitted, the Commission will consider the factual information then presented as to harassment after December 31, 2012, or the lack thereof, in making a decision regarding renewal.

Date Issued: 4/25/2013; 12 Pages

Resources:

• Advisory opinion 2012-38 [PDF; 12 pages]
• Concurring opinion (Weintraub) [PDF; 2 pages]
• Commission discussion of AO 2012-38
• Litigation summary: Socialist Workers Party v. FEC