Bill Description: Senate Bill 1365 would exempt a religious organization that supports or opposes ballot measures from donor disclosure requirements under Idaho’s campaign finance law, so long as it spends less than 10% of its total receipts on such efforts.

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Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?

Senate Bill 1365 would amend Section 67-6606, Idaho Code, which deals with campaign expenditures by nonbusiness entities, by adding a new subsection that says, “The provisions of this section shall not apply to a religious organization for any action taken to support or oppose any measure if the religious organization's expenditures or contributions in support or opposition are in an amount less than ten percent (10%) of its total receipts for the prior calendar year.”

There are several things worth considering about this bill, starting with the general argument for this carveout as presented in the bill’s statement of purpose. It says, “The vague and overbroad disclosure and reporting requirements in the Idaho Sunshine Law impose a chilling effect on church speech, thereby discouraging churches from speaking faithfully on the important cultural issues that are implicated by ballot initiatives.”

This is largely true, but it also applies to many other organizations that are not churches. Donor disclosure requirements have a chilling effect on free speech in all contexts. 

An additional point is that “important cultural issues” are also implicated by candidates for public office, yet the carveout in this bill only applies to speech on ballot measures. 

Finally, we come to the requirement that “the religious organization's expenditures or contributions in support or opposition [of a ballot measure] are in an amount less than ten percent (10%) of its total receipts for the prior calendar year.”

Churches don’t generally file income tax, and Idaho does not impose any charitable solicitation registration or reporting requirements on non-profits. Churches are also exempt from filing IRS Form 990. These are good things, but they mean neither the state nor the federal government has a record of a church’s “total receipts,” which means the 10% limitation is either superfluous or it opens the door to audits should churches become actively involved in supporting or opposing ballot measures. 

The underlying idea here — protecting the identities of those who donate to politically active churches — is positive, but narrow carveouts like this tend to create as many problems as they solve. It shouldn’t matter if the issue is a candidate or a ballot measure. It shouldn’t matter if the organization is a church or an Elks Lodge. And it shouldn’t matter how much is spent on one cause or another as a percentage of total receipts. Free speech includes political speech and donations, and donor disclosure requirements have a chilling effect on the exercise of fundamental liberties. 

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