Why Should Delaware Care?
As state lawmakers seek to further expand election transparency rules in Delaware, an ongoing legal battle could remove some of those same campaign finance disclosures entirely. As the lawsuit – waged by a conservative, billionaire-backed advocacy group – makes its way through the courts, some political candidates in the First State have already begun campaigning ahead of this fall’s midterm elections.
A conservative advocacy group has filed a lawsuit challenging a key instrument of election transparency in Delaware, which, if successful, could upend nearly 15 years of campaign finance law months before the November midterm elections.
Americans for Prosperity, a nonprofit advocacy organization funded by the influential Koch brothers, filed the lawsuit in federal court on April 17, seeking to overturn the Delaware Elections Disclosure Act on the grounds that its extensive campaign finance transparency requirements serve to discourage political speech and thus violate the First Amendment.
Similar legal battles waged by Americans for Prosperity have gone all the way to the U.S. Supreme Court.
And the group’s current fight in Delaware to scale back campaign finance requirements comes as lawmakers in the state House of Representatives consider a new bill, House Bill 216, which would further expand those disclosures.
Ross Connolly, the Northeast regional manager for the Americans for Prosperity Foundation, said the group is not currently working in Delaware due to its disclosure laws, but would like to get involved in ongoing education and property tax debates.
“We would like to be in Delaware,” he said. “We just will not put our small or large donors … at risk of being singled out in an unfair way and being attacked because they believe in the cause of Americans for Prosperity and they want to help us in our mission.”
Along with its lawsuit, Americans for Prosperity also filed a motion seeking a preliminary injunction to prevent the state from enforcing its disclosure requirements while the case moves through the legal process. A hearing on that motion has yet to take place.
What is the Delaware Election Disclosure Act?
Originally passed in 2012, the Delaware Election Disclosure Act was touted as an innovative tool to combat dark money influences in Delaware politics. It was enacted in reaction to the U.S. Supreme Court’s Citizens United v. Federal Elections Commission decision in 2010, which ushered in a new era of political financing by removing longstanding limitations on corporate spending on election campaigns through political action committees (PACs).
The law aimed to close a loophole in the state’s campaign finance laws through which a third-party organization from outside the state could conceal its donors as long as its political advertisements avoided explicitly advocating voters to choose a specific candidate in an election.
Lawmakers introduced requirements that any entity engaging in that type of political advertising within 30 days of a primary election or 60 days of a general election must disclose financial records detailing the funding of their ads and include ways for the public to find a list of their funders. The full names and mailing addresses of anyone contributing more than $100 to the organization during the election cycle also must be disclosed to the state.
Americans for Prosperity’s suit argues the law’s requirements “violate the right to private association, chill free speech and association, and overstep the government’s legitimate disclosure interests, all in violation of the First Amendment.”
“In the state of Delaware, there are onerous laws around disclosure of donors, which we view as a fundamental right of free speech in this country,” Connolly said. “It goes back to the founding [of the country], of being able to give money, time, resources to a cause without having to disclose who you are, your address, all these things.”
In a statement to Spotlight Delaware regarding the lawsuit, Attorney General Kathy Jennings condemned the Koch brothers, whose conservative network raised and spent over $500 million during the 2024 election cycle, as “a disease in America’s campaign finance system.”
Jennings and Delaware Election Commissioner Anthony Albence are named as defendants in the suit.
“Americans on both sides of the aisle hate dark money groups and the blank check that the Supreme Court handed them in Citizens United,” Jennings said in a statement. “Now the people who perfected the Super PAC and embodied our corrupt campaign finance laws are in Delaware fighting to keep dark money dark. Delawareans deserve to know who’s trying to buy their elections.”
Albence’s office declined to comment.
Other campaign finance fights
Connolly said other groups, like the American Civil Liberties Union, have joined Americans for Prosperity in previous legal challenges of similar financial disclosure laws, illustrating that these types of disclosure laws face opposition across the political spectrum. That includes the organization’s successful court battle defeating a California law that required charities operating in the state to confidentially disclose their major donors to the state.
Americans for Prosperity’s lawyers argued in that case that the state could not guarantee donor privacy, and the requirement represented an undue First Amendment burden discouraging people from potentially supporting certain charities. Charitable organizations already have to submit lists of their major donors to the Internal Revenue Service.
In a 5-4 decision, the Supreme Court ruled the California law violated the First Amendment and was too broad to be “narrowly tailored to an important government interest” – namely, election transparency.
Andrew Bernstein, civic engagement counsel for ACLU of Delaware, said the local chapter is not involved in Americans for Prosperity’s current lawsuit, though he confirmed the national group’s previous support of Americans for Prosperity efforts in other states.
He also said ACLU’s local efforts are currently focused on derailing HB 216, the bill that would further expand disclosure requirements for third-party advertisers engaging in political communications around elections.
“In the current political climate, we think this would create a severe chilling effect on the First Amendment rights of individuals to associate with organizations, as they may fear reprisal if they were listed in such a way,” Bernstein said.
Americans for Prosperity’s lawsuit is not the first time the state has had to defend the Delaware Election Disclosure Act in court.
After it was first passed, local conservative group Delaware Strong Families filed a lawsuit seeking to overturn the law using similar legal arguments outlined in Americans for Prosperity’s current lawsuit.
A federal court ruled in favor of Delaware Strong Families’ challenge, but the state successfully appealed the ruling to the U.S. Court of Appeals in 2015.
Then-Gov. Jack Markell, who signed the 2012 law into effect, said at the time it was an “important victory for transparency in Delaware elections.”
“Delaware voters deserve to know who is responsible for advertisements and other materials asking for them to support or oppose candidates,” Markell said.
Briefs from both sides addressing Americans for Prosperity’s request to temporarily halt the state from enforcing its election disclosure rules while the full legal case unfolds are due by the end of the month.
