Why Should Delaware Care?
Since 2012, the Delaware Elections Disclosure Act has mandated that organizations engaging in political advertising in Delaware must disclose the names and addresses of anyone donating over $100 to their organization nationwide. Americans for Prosperity, a conservative political advocacy group, is seeking to overturn the law and increase its presence in Delaware politics ahead of the 2026 elections.
The rules around campaign finance transparency in Delaware are unlikely to change ahead of the September primary elections after a judge denied a conservative foundation’s request for their immediate pause.
The Americans for Prosperity Foundation is a nonprofit founded by the Republican megadonor Koch brothers to promote free-market policies, individual liberty, and limited government. In April, the group sued Delaware, 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 violates the First Amendment.
The Delaware Elections Disclosure Act was passed by Gov. Jack Markell in 2012 in reaction to the landmark Citizens United decision by the U.S. Supreme Court. That decision overturned traditional limitations on corporate spending in elections via political action committees (PACs), leading to several states implementing their own guardrails to mitigate the resulting impact on state elections.
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.”
In its original complaint, lawyers from the foundation argued that the Delaware Elections Disclosure Act infringes on the First Amendment of the U.S. Constitution via its requirements that organizations participating in political advertising within 60 days of an election must disclose the names and addresses of their donors nationwide, among other similar regulations. The suit named Attorney General Kathy Jennings and State Elections Commissioner Anthony Albence as defendants.
The organization contends the law’s disclosure rules chill free speech by discouraging people from financially supporting their preferred political causes due to fear of it being publicized.
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 – potentially putting this year’s mid-term elections into play.
Following a June 8 in-person hearing, however, U.S. District Judge Jennifer Hall denied that bid. The written order did not specify why.
In a statement released after the ruling, Attorney General Kathleen Jennings defended the disclosures that are required from any group spending $500 or more to assist in the election of any candidate or in connection with any election campaign.
“This victory affirms that it is the people of Delaware – not the Koch family or any other billionaires – who get to determine our state’s election laws,” she wrote. “For years, the Kochs have funneled billions of dollars of dark money into our country’s elections to promote policies to enrich themselves at the expense of the general public. Their brazen attempt to expand that playbook into Delaware has met the fate that it deserves.”
“Had they succeeded, state law would have essentially no transparency requirements governing the Koch network, billionaires like Elon Musk, or other moneyed interests’ efforts to dump dark money into Delaware elections.”
Two days after Hall’s denial, however, the Americans for Prosperity Foundation appealed the case to the U.S. Court of Appeals for the Third Circuit.
A Department of Justice spokesman said the office looks forward to continuing the legal fight and defending the law’s constitutionality. The Delaware Disclosure Act also withstood a previous legal challenge that was decided by the Third Circuit in 2015.
“The facts and moral realities that the lower court ruled on have not changed,” said Mat Marshall, the department’s director of external affairs. “We have yet to hear from any Delawarean, of any party, who believes that our campaign finance laws are too transparent.”
The Third Circuit has set a deadline to file arguments on the preliminary injunction by July 29. A hearing date has not been set, although the plaintiff asked for it to be in advance of Sept. 4, which marks 60 days before the midterm elections.
Americans for Prosperity did not respond to a request for comment from Spotlight Delaware regarding their appeal.
