John Kramer
John Kramer · October 7, 2020

America’s Tradition of Donor Privacy in Jeopardy

Arlington, Va.—Can the government demand to know your name and home address merely because you’ve contributed to an organization you believe in? Unless the U.S. Supreme Court accepts and overturns the case of Americans for Prosperity Foundation v. Becerra, that is exactly what will take place in California—opening the way for other states to do likewise, and putting the safety of donors and the financial footing of nonprofits at risk.

The threat to donor safety and the financial wellbeing of nonprofits is not theoretical.

The U.S. Supreme Court has long held that the First Amendment protects the privacy of charitable donors. In the 1950s, the Court rejected an attempt by the State of Alabama to force the NAACP to turn over the names of its donors, recognizing that the risk of donors being harassed or threatened would undermine the civil rights organization’s base of financial support. But in September 2018, the 9th U.S. Circuit Court of Appeals upheld a similar disclosure requirement in the Americans for Prosperity (AFP) case.

“Multiple people associated with Americans for Prosperity have received death threats or otherwise been harassed,” said Paul Sherman, a senior attorney with the Institute for Justice, which filed a friend of the court brief on behalf of AFP urging the Court to take up the case. “At the same time, California has done a terrible job of keeping the nonprofit records it receives confidential; Americans for Prosperity’s expert witness was easily able to access all 350,000 of the supposedly ‘confidential’ documents stored on the Attorney General’s website.”

The 9th Circuit downplayed concerns that AFP donors might face harassment if their identities were known, citing the fact that the state does not intentionally disclose that information to the public.

Sherman said, “A fundamental purpose of privacy of association is to protect citizens from what government might do with that information. At a time when trust in government is near historic lows, charitable donors have every reason to want to keep their identities private. If the government thinks that information is necessary to investigate violations of the law, it can do what the government is supposed to do: get a warrant.”

Sherman added, “The 9th Circuit’s ruling sets a dangerous precedent. It expands the Supreme Court’s precedent on disclosure for political campaigns to cover all charitable groups, regardless of whether they comment on political candidates or ballot issues. It covers not only 501(c)4 organizations, but 501(c)3’s as well. But under the First Amendment, privacy is the rule when it comes to freedom of association, and compelled disclosure is the exception—not the other way around.”

Said Sherman, “Imagine being a supporter of Planned Parenthood and living in the Bible Belt, or the NRA and living in San Francisco. If the government can collect your name and home address and potentially expose that information to the world, you’re going to think twice about supporting such groups.”

“Disclosure is supposed to be about keeping tabs on government, not keeping tabs on private citizens,” said IJ’s President and General Counsel Scott Bullock. “Transparency is important for the government so the public can assess the actions of its lawmakers. But privacy for the individual—in their freedom of speech and freedom of association—is an essential American value, going as far back as the anonymous authorship of the Federalist Papers. Those anonymous documents laid the foundation for the very Constitution that should be debated before the U.S. Supreme Court in Americans for Prosperity v. Becerra.”

The Supreme Court has requested that the U.S. Solicitor General file a brief expressing the federal government’s views on the case, and has relisted the case for consideration multiple times—both considered strong signals that the Court is considering granting review in the case. A ruling on whether to take the case is expected early in the October 2020 Supreme Court term.