Imagine donating to a cause you believe in and then finding your name, address, and employer published for anyone to see, exposing you to harassment or professional retaliation. That is the risk New Mexico’s donors now run. In New Mexico, a new law dubbed the New Mexico Campaign Reporting Act mandates that any person making independent expenditures disclose sensitive donor information if they name a candidate or specific ballot measure within a select number of days before an election.
In the run up to the November 2020 general election, the Rio Grande Foundation intended to mail its “Freedom Index,” “a scorecard about specific legislators’ votes,” to New Mexico voters within 60 days of the election. The index did not exhort New Mexico citizens to vote one way or another. Rather, it merely referenced incumbent legislators by name. Because of the donor disclosure law, however, Rio Grande could not mail its Freedom Index without the forced disclosure of its donors’ names and sensitive information to the public.
New Mexico’s law is obvious government overreach. But the deeper problem is what that overreach threatens: the associational rights of every New Mexican. Simply put, if donors are intimidated, they stop donating. When donors stop giving, the nonprofit organizations that depend on their support – including nonpartisan civic and policy groups of every stripe – can no longer operate.
The freedom to associate is essential to ordered self-government. Aristotle argued that good citizens shape good constitutions. Individuals need strong relationships within civil societies to become good citizens, for “the man . . . who is unable to share in the benefits of political association, . . . is no part of a city, and must therefore be either a beast or a god.”
Alexis de Tocqueville echoed Aristotle while traveling through the nascent American republic, writing that if Americans did not associate, they would devolve into “a flock of timid and hardworking animals.” Association was the way Americans who “wished to highlight a truth or develop an opinion by the encouragement of a great example” did so. By contrast, isolation and the inability to participate were, and continue to be, death knells for self-governance.
The Founders also considered association essential to a stable and enduring government and subsequently leveraged those beliefs to draft the Constitution. In Federalist No. 49, James Madison, the principal architect of our Constitution and champion of the Bill of Rights, argued that the right of association is essential to developing an engaged, robust, and self-governing citizenry. Madison recognized that the development of firm opinions required citizens to associate with one another.
At the time of the Founding, several state constitutions recognized the difference between free expression and free assembly. The First Congress considered but summarily rejected a proposal to strike the Assembly Clause from the First Amendment as a redundancy of free expression.
Yet the Supreme Court has since taken the freedom of association and unmoored it from the Assembly Clause. This means that, rather than ensuring donor disclosure laws clear a high bar before they can burden issue-advocacy organizations, states can more easily pass laws that trample this right. In the Civil Rights-era case NAACP v. Alabama (1958), the Court recognized that freedom of association is an essential element of the First Amendment because it gives the freedom of assembly its substance and meaning. The Court allowed the NAACP to keep its membership lists private because disclosure would have exposed individual members to social, political, and physical retribution.
NAACP v. Alabama remains sound precedent. It begs reinforcement, not abandonment. Simply put, civic institutions, properly understood, ground free societies by forming citizens capable of self-governance. As Yuval Levin writes, “liberal institutions by themselves do not necessarily produce people capable of” the virtues self-government requires; civic institutions built on free association are what cultivate those virtues in the first place. Laws like New Mexico’s show how easily that foundation can be eroded, one statute at a time, if the Court does not strengthen it.
When leaving the Constitutional Convention, a Philadelphian asked Benjamin Franklin what kind of government the convention had devised. Franklin responded, “a republic, if you can keep it.” If America is to endure under a government of limited and enumerated powers, the Court must shore up the Constitution’s protection of free association. The freedom to associate is not merely the freedom to interact. It is the freedom to become the kinds of citizens who can keep and strengthen a republic.
