Some politicians are trying to take away nonprofit donors’ First Amendment right to privacy

December 11, 2019 | By LUKE WACHOB
disclose act

The First Amendment protects your right to speak, assemble, and petition the government. Yet there are ways to limit and obstruct speech without banning it. When political leaders want to silence a critic or muzzle a burgeoning cause, they often do so by placing onerous conditions on those who dare to speak.

Today, one of the most dangerous conditions placed on speech is donor exposure. Politicians and bureaucrats seek to force groups that discuss government actions or public policy to expose their supporters’ personal information. Typically this includes the person’s name, home address, donation amount, and often their occupation and employer. The information is stored in an online, searchable database available to the public.

Donor exposure violates the long-held principle that transparency is for government, privacy is for people. It deters Americans from supporting worthy causes and forces nonprofits to choose between their right to speak and their members’ right to privacy. This is no accident. Political leaders like Senate Minority Leader Chuck Schumer boast repeatedly of the “deterrent effect” donor exposure has on speech.

Donor exposure laws are typically marketed as responses to political corruption and so-called “dark money.” Yet the organizations harmed by these laws include longstanding civic organizations and government watchdogs that fight corruption. Silencing these groups makes it easier for government to get away with wrongdoing.

Privacy is no new innovation in American politics. The Founding Fathers used pen names in many of their most famous writings. Common Sense and The Federalist Papers were authored anonymously. The right to private association was later essential to 20th-century activists campaigning for civil rights, gay rights, and other causes. Americans even vote in private booths.

The Supreme Court issued a unanimous ruling supporting the right to private association in 1958. The State of Alabama wanted to force the NAACP to turn over a list of its members, but the Court recognized that doing so would jeopardize their safety and undermine the organization’s effectiveness. It said no.

“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action,” wrote the Court.

That decision joined a line of mid-century rulings emphasizing that Americans should not face retaliation for their constitutionally protected speech. Union organizers, anonymous pamphleteers, charitable donors, and others also secured the right to organize and advocate in private. In the 1976 seminal campaign finance case, Buckley v. Valeo, the Court upheld donor exposure requirements for political committees but again defended nonprofit privacy. It ruled that groups cannot be regulated as political committees simply because they speak about government.

In the decades since, however, numerous states have experimented with laws that undermine these precedents and force civic groups to expose their supporters. Some of these laws have been upheld in certain federal appellate courts, and the Supreme Court has stayed out of the fray. As a result, would-be censors today view donor exposure as one of the most effective weapons in their arsenal.

In addition to putting Americans at risk for their beliefs, donor exposure laws impose unnecessary costs on speech. Resources that could go toward a nonprofit’s mission are used up collecting, maintaining, and filing donor records with state agencies. The threat of fines and penalties for errors in these reports further discourages groups from engaging in activity that might trigger the law. Often, the laws are so complex that grassroots organizations can’t even be sure what speech is regulated.

As a result, donor exposure laws slant the political playing field in favor of wealthy and well-established interests. These groups can afford top-notch lawyers to navigate the red tape. Smaller organizations or volunteer-run groups may choose not to speak rather than try to follow a law they can’t understand.

Fortunately, many Americans are pushing back against this effort to curtail their ability to organize and advocate for better government. Nonprofit donor exposure laws in New York and New Jersey recently suffered losses in the courts—and faced fierce bipartisan criticism in the legislative process. Other important cases continue in states like California, where both the Institute for Free Speech and Americans for Prosperity Foundation are fighting for their members’ privacy.

Ultimately, the Supreme Court will have to rule on a nonprofit privacy case. First Amendment rights are essential to democracy, and we must ensure that every American is free to exercise them safely. Privacy in association makes free speech possible for all.

Luke Wachob is the Communications Director at the Institute for Free Speech in Alexandria, Virginia.