Civil Liberties Groups on Left and Right Unite Against Donor Disclosure

​Protect the 1st has filed an amicus brief in the Supreme Court challenging a California requirement that all non-profits disclose the personal information of their donors to the California Attorney General’s Office. Our brief can be found here.
 
Protect The 1st's brief is one of many filed by a large bipartisan group of nonprofit organizations. Protect The 1st is proud to stand with these organizations that have filed briefs in defense of First Amendment rights in Americans for Prosperity Foundation v. Becerra, as well as in separate cases challenging donor-disclosure requirements across the country.
 
The issue at stake is whether California – and by implication, the federal government – can force nonprofit organizations to disclose private donor lists. California says such requirements are needed to enable greater financial transparency and prevent fraud. In so doing, we argue, California jettisoned established First Amendment cases that have protected the right of donor and member anonymity for decades.
           
Before this case made its way to the Supreme Court, the NAACP Legal Defense and Educational Fund (“LDF”) filed a brief in the 9th Circuit in support of the Americans for Prosperity Foundation. In its brief, the NAACP claimed that California’s donor-disclosure scheme will impose disproportionate harms on the most vulnerable Americans:

•  “[T]he precedent established by this case and the positions taken by the Attorney General here could impact not just LDF, but also other civil rights and civil liberties groups, smaller non-profits with fewer resources, and other states.” Crucially, “the Attorney General’s broad view of his own power could be adopted by other, less benign, governmental authorities and used to suppress advocacy or expel a particular group from the State. Indeed, it was exactly such conduct by Alabama in the 1950s, via its attorney general, that led to the landmark Supreme Court decision blocking the State from forcing such disclosures.”

 
The American Civil Liberties Union and ACLU-New Jersey challenged a similar New Jersey law in 2019. In its lawsuit, the ACLU highlighted the law’s “vague and overbroad disclosure requirements” and the impact those requirements would have on “organizations that engage in public advocacy work, including even those that do not engage in electoral politics.” Terence Dougherty, ACLU general counsel, stated “all nonprofits should be able to speak out on urgent issues of the day without a fear of being subject to disclosure rules that go beyond the bounds of what the Constitution allows.”
 
The libertarian-leaning Cato Institute filed an amicus brief recently raising similar concerns and arguing that any law requiring organizations to out their donors should be subject to exacting First Amendment review:

• “[V]iolations of the freedom of association must advance a compelling state interest and be narrowly tailored to that interest. The narrow-tailoring requirement prevents the government from needlessly infringing on constitutional rights when less restrictive means of achieving its goal are available.”

 

• The risks of broad government power to force disclosure are clear, as stated in the Cato Institute’s brief: “[I]n an era of increasing political polarization, protecting associational privacy becomes even more important. And when groups or individuals espouse unpopular or controversial beliefs, private association is critical.”

 
The Chamber of Commerce of the United States of America has also filed an amicus brief in support of the Americans for Prosperity Foundation. As the world’s largest business federation, many Chamber members “prefer to remain anonymous for a variety of reasons, including to protect themselves from being targeted by extremists who hold different views, to avoid further requests for solicitations, or simply because they do not wish to publicize their charitable good deeds.”

• Without anonymity, the Chamber writes, “donors who elect to contribute at the price of having their donations revealed may become targets for threats, harassment, and violence.”

 
In an age in which “doxing” and political violence are increasingly common, groups of all ideological stripes realize that these disclosure laws and regulations threaten to scare off donors and stifle dissent. Protect The 1st is proud to be part of such a diverse coalition of respected defenders of the First Amendment.