Leading up to the 2024 election, an organization called the Rio Grande Foundation planned to mail its legislative scorecard to New Mexico voters. Mailing the scorecard would allow the organization to reach across a statewide audience to better inform and update them on upcoming changes in legislation. But New Mexico state law prohibited the organization from doing so. Now the foundation is asking the Supreme Court to review the law in a case called Rio Grande Foundation v. Oliver.
The scorecard did not urge New Mexicans to vote in a particular way. But, because it named candidates and was scheduled to be sent within 60 days of the election, New Mexico’s Campaign Reporting Act classified it as an “independent expenditure” that would have forced the Rio Grande Foundation to disclose its donors to the government.
Any organization spending more than $1,000 on communications that merely reference a candidate or ballot measure within a specified pre-election window are red flagged under New Mexico law. To send such communications, an organization must disclose donors who contributed more than $5,000 during a two-year election cycle, unless the donor explicitly opts out. The problem is, most donors have no idea that such a requirement exists. 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.
Rio Grande’s scorecard was a voting record — the kind of basic civic information that newspapers publish and good-government groups have distributed for generations. Whether it qualifies as “advocacy” under New Mexico’s definitions is beside the point. The First Amendment protects the right to associate and speak anonymously, and that right does not evaporate the moment a communication mentions a candidate’s name.
The chilling effect of forced donor disclosure is not hypothetical. As the Supreme Court found in the civil rights-era case NAACP v. Alabama (1958), Alabama could not compel the National Association for the Advancement of Colored People (NAACP) to disclose its membership lists, as doing so would expose them to retaliation.
In our politically charged present, the Supreme Court recognized as much in Americans for Prosperity Foundation v. Bonta (2021), where hundreds of organizations filed briefs attesting to the real, pervasive deterrence to free association and expression that forced disclosure creates. For example, in 2008, donors to California’s Proposition 8, a ballot measure on marriage, faced coordinated harassment campaigns after their names became public. This included the resignation of film and theatrical directors, and vandalism of homes.
Years later, in 2014, the co-founder of Mozilla was forced out of his own company because his donation to the proposition resurfaced. The donation was legal, and the proposition even passed a statewide ballot, but public disclosure turned the donor into a victim of cancel culture because leftists disagreed with his politics.
This is exactly what the Founders understood when they wrote anonymously. The Federalist Papers were published pseudonymously, as were the Anti-Federalists’ responses. As the Supreme Court held in McIntyre v. Ohio Elections Commission, ““anonymity is a shield from the tyranny of the majority.” It “exemplifies the purpose behind the Bill of Rights…to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.”
John Stuart Mill’s marketplace of ideas presents the belief that arguments should be evaluated on their merits, not according to the identity of the speaker. When the government compels donor disclosure, it inverts that principle, licensing voters to dismiss an argument because of its source rather than its substance.
The Supreme Court should use Rio Grande to resolve whether laws that compel disclosure of political association should face strict scrutiny – the highest test in constitutional law – not merely exacting scrutiny. The court’s own precedents in NAACP v. Alabama called for “the closest scrutiny” of any state action curtailing freedom of association, yet the cases that followed have applied something less.
The gap matters because “exacting scrutiny” has proven porous in practice. When the Ninth Circuit upheld California’s donor disclosure regime under this same standard, the Supreme Court reversed it in Americans for Prosperity Foundation. This correction required higher intervention precisely because the lower court’s application of exacting scrutiny wasn’t exacting at all. The Tenth Circuit upheld this law, and courts will continue upholding similar laws until the Court clarifies the standard.
Rio Grande sought to publish a voting record that voters in New Mexico had a right to see. Rio Grande’s donors likewise had a right to support it without having their names and addresses delivered to the state and published for anyone to find. New Mexico’’s law makes all three of those things harder, and the Supreme Court should say so.
