‘Likely that potential donors will refuse to contribute’

Delaware enacted the law in question in 2012 in the wake of the U.S. Supreme Court’s ruling in Citizens United v. Federal Election Commission in 2010, which permitted corporations and other outside groups to spend unlimited money on elections.

The lawsuit targets the provision in the Delaware code that requires third-party advertisers who engage in so-called “electioneering communications” — which name a candidate but don’t explicitly say who to vote for or against — to file reports if they spend more than $500 in an election cycle.

The groups must first register as a political committee and list names and addresses of each officer, as well “a concise statement of the committee’s purposes or goals,” and the name, office sought and party affiliation of candidates they are supporting or opposing, “to the extent such information is known as of the date of filing.”

During the campaign season, the groups also need to file reports listing the name and mailing address of anyone contributing more than $100, regardless of whether the person earmarked their money for a Delaware race or even knows about the campaign ads in Delaware. The report must contain the total amount that every donor made during the relevant election cycle.

The law has a $1,200 minimum threshold for reporting donations by any contributor that is not an individual.

While the lawsuit centers on disclosing individual donors, the roughly 60 third-party advertisers now registered in Delaware report contributions from affiliated organizations rather than naming individual people, a WHYY News review of filings found.

For example, the American Civil Liberties Union of Delaware Action Fund listed $70,000 in donations from the American Civil Liberties Union, listing a New York address for the donors.

Another group, the National Resources Defense Council lists one donation — $100,000 in 2024 from the NRDC Action Votes Federal PAC in New York. During that race, the group advocated for unsuccessful Democratic gubernatorial candidate Collin O’Mara.

Regardless of whether third-party advertisers are naming individual people as donors, Americans for Prosperity argues in the lawsuit that the names of “thousands of donors” who have given its two groups more than $100 since 2022 would have to be disclosed.

Citing the law, the lawsuit said that failing to comply comes with a possible “penalty of perjury” and fines of $50 a day and perhaps referral to prosecutors for not filing the reports, which is a misdemeanor criminal offense.

Such disclosures would harm Americans for Prosperity, the lawsuit argues, because “the vast majority of donors require confidentiality as a condition of their giving.”

Unless the law changes or is overturned in court, the lawsuit claims that Americans for Prosperity could jeopardize its funding stream if it engages in third-party advertising in Delaware.

“It is likely that potential donors will refuse to contribute, and current donors will cease to contribute, because they are too fearful of the reprisal they will face if their names and addresses are disclosed,” the lawsuit said.

Connolly elaborated.

“This is a fundamental, foundational American principle that you should be able to give to causes without fear, whether you give $100 or $1,000 or more,’’ he said. “Everybody should be treated equally and protected equally to engage in the political process as they see fit and not not fear attacks on their families and their businesses.”

Marshall countered that third-party advertisers don’t deserve special privileges.

“The idea is that our elections are sacrosanct and that we ought to be able to at least see who is influencing them,” Marshall said. “The idea that we should have special rules when it’s a third party that’s really set up in practice to funnel extremely wealthy people’s resources in one or a few massive bundles of money, that we should treat that more gingerly than we treat the donation of an accountant who lives in Newark to their local state rep candidate, just feels outrageous.”