Should the Government Keep Tabs Of Your Support for Nonprofits?

John Kramer
John Kramer · November 19, 2019

“Charities should not have to show that their donors have been subject to the terroristic threats the NAACP suffered in the 1950s before they will be allowed to keep their donor lists private. By that time, the harm to private speech and association has already been done.”

Arlington, Virginia—Would you want the government to know that you donate to controversial organizations like Planned Parenthood or the National Rifle Association? Would you trust the government to keep that information private?

Whether you are worried about harassment from government officials who don’t agree with your world view, or you simply believe that your private charitable giving is none of the government’s business, you may have strong personal reasons to keep your private charitable giving private. But that privacy is under threat if the U.S. Supreme Court decides not to accept and reverse an important First Amendment case arising out of California called Americans for Prosperity Foundation v. Becerra.

The case will decide whether state governments can demand to know the names and addresses of donors to nonprofits that are not involved in an election, but merely in public policy issues. It is a case that could open a pandora’s box of harassment for nonprofit donors if the Court does not overturn a ruling by the Ninth U.S. Circuit Court of Appeals. The Ninth Circuit held that nonprofit donors’ information may be collected by state governments, paving the way for them to be leaked or otherwise made public.

“Charities should not have to show that their donors have been subject to the terroristic threats the NAACP suffered in the 1950s before they will be allowed to keep their donor lists private,” said Paul Sherman, a senior attorney with the Institute for Justice, which filed a friend of the court brief on Americans for Prosperity’s (AFP) behalf. “By that time, the harm to private speech and association has already been done. But that is the standard the Ninth Circuit’s ruling forces charities to meet if they want to protect their donors’ privacy.”

This suit began when then-Attorney General for the State of California Kamala Harris (and now her successor Xavier Becerra) demanded the names and addresses of anyone who donated more than $5,000 to the free market public policy group AFP as a condition for the organization to fundraise in the state. AFP does not engage in electoral politics; rather, it merely engages in run-of-the-mill public policy discussions and advocacy common to nearly every nonprofit in the nation. AFP sued to protect the privacy of its donors and to shield them from threats and harassment.

“Multiple people associated with Americans for Prosperity have received death threats or otherwise been harassed,” said Sherman. “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 AG’s website.”

Sherman said, “Under the U.S. Supreme Court’s precedent about nonprofit disclosure, this should have been an easy case. For decades, the Supreme Court has held that the First Amendment provides substantial protection for the confidentiality of donor lists. Unfortunately, a growing number of lower courts are turning for guidance on these issues to the Supreme Court’s more recent decisions regarding campaign-finance disclosure, an area where the Court has shown far less protection for donor privacy. That’s exactly what the Ninth Circuit did by applying a watered-down version of ‘intermediate’ scrutiny under which the government will essentially always win.”

Since the 1970s, the Court’s campaign finance cases have twisted First Amendment precedent into knots in order to justify expansive regulation of political speech. Those developments are bad enough on their own without being allowed to infect other areas of First Amendment doctrine that have always received a high level of protection.

As the Institute for Justice makes clear in its amicus brief, “For generations, [the Supreme] Court has vigorously protected the right of private association. A central theme of this precedent is the understanding that when government compels private citizens to disclose their private associations, those citizens will be chilled from associating. And the existence of this chilling effect, which this Court has taken as intuitively obvious, is supported by scholarly research. The Ninth Circuit, however, ignored all of that, and instead held not only that AFP . . . must prove that their speech had been chilled, but that they must do so with evidence of previous harassment to obtain relief.”

“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 will be debated before the U.S. Supreme Court in Americans for Prosperity v. Becerra.”

The Court is expected to decide as soon as mid-January whether it will hear AFP’s appeal.