John Kramer
John Kramer · March 3, 2021

Institute for Justice files amicus brief to protect donor privacy

Arlington, Virginia—Imagine being a supporter of Planned Parenthood living in the Bible Belt, or a supporter of the NRA living in San Francisco. Would you want your identity disclosed to government officials who might misuse that information or allow it to be leaked to the public?

That question is at the heart of two consolidated U.S. Supreme Court cases—Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra—to be heard later this term, in which the Court will consider the constitutionality of one of the most sweeping intrusions into private speech and association in decades. Unless the Court overturns the decision of the 9th U.S. Circuit Court of Appeals upholding that intrusion, donors’ safety and the financial footing of nonprofits could be placed at risk.

The case arose when California’s Attorney General began demanding that nonprofits in the state turn over a list of their large contributors as a condition of charitable fundraising. Even though the Supreme Court has held for decades the First Amendment protects the right of nonprofits to keep their supporters’ identities private, the 9th Circuit ignored this precedent and instead relied on the Supreme Court’s decisions on campaign finance to uphold the suspicionless bulk collection of donor information.

“That was wrong and dangerous,” said Institute for Justice Senior Attorney Paul Sherman. The Institute for Justice filed a friend of the court brief on behalf of the Thomas More Law Center and the Americans for Prosperity Foundation. “The Supreme Court’s campaign finance jurisprudence is unlike any other area of First Amendment law and permits regulations of speech and association that would be unthinkable in other domains.”

Sherman added, “The Supreme Court must not allow those outlier precedents to swallow the general rule that Americans have the right to privacy of association. Doing so would open nonprofits to government retaliation that may be difficult or even impossible to detect.”

These concerns are not far-fetched.

“Imagine if the Trump administration had suddenly announced that it was requiring all tax-exempt groups to provide a list of their supporters to the Attorney General,” Sherman said. “Would liberal-leaning groups have felt confident that information would be used only for legitimate law-enforcement purposes?”

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.

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

Institute for Justice President and General Counsel Scott Bullock said, “Everything the Court has done so far in this case—from relisting it multiple times to calling for the views of the Solicitor General—indicates that they are very concerned about the implications this ruling will have for nonprofits across the country. We hope and expect that the Court will reverse the 9th Circuit’s ruling and make clear that its unique campaign finance precedents have no proper application outside of that narrow context.”

Bullock added, “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.”

“Disclosure is supposed to be about keeping tabs on government, not keeping tabs on private citizens,” said 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 this case.”