Report: Donor Privacy Under Threat in 31 States

​Donor privacy is under unprecedented threat across the country. According to a report last month from the non-partisan People United for Privacy, efforts to curb historical privacy protections are underway in no fewer than 31 states.
 
Matt Nese of People United for Privacy details this threat in a recent RealClear Policy piece, describing the means by which politicians of all political stripes ceaselessly endeavor to dox nonprofit donors, often under the guise of curbing the influence of “dark money” or foreign sources of funding. In practice, it’s rank-and-file domestic contributors – exercising their fundamental speech rights – who end up being harmed the most by such efforts.
 
Look no further than Arizona’s Prop 211, the misleadingly titled “Voters Right to Know Act.” That measure was marketed as requiring disclosure of political “campaign” donors. Instead, it targets any group that speaks out on public policy issues – including nonprofits. It opens the door not just to self-censorship by those who may otherwise be inclined to donate to a cause, but also the possibility of doxing, intimidation, harassment, and cancellation.  
 
Multiple legal challenges to Prop 211 are ongoing. Should these challenges make it to the U.S. Supreme Court, history suggests it’s unlikely the justices will uphold the law.
 
The Court first established our bedrock principle regarding donor privacy and the First Amendment in 1958 when it struck down a State of Alabama requirement that the NAACP reveal its donors. That potential for compelled disclosure would almost certainly have led to “harassment, economic reprisal, and physical harm” – danger enough for the Court to act to protect the First Amendment.

Such reasoning carried through to 2021 when the Supreme Court struck down a California requirement for compelling donor disclosure for nonprofits. In the majority opinion, Chief Justice John Roberts noted “that 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.”
 
The 2021 ruling hasn’t dissuaded the political class from continuing to push the boundaries when it comes to donor privacy. In Hawaii, SB 997 would require donor disclosure in the case of “[c]ommunications that advocate or support the nomination, opposition, or election of a candidate, regardless of whether the communication expressly advocates the election or defeat of a candidate.”
 
In Washington, legislation is being developed purporting to ban so-called “foreign influenced” entities from participating in the political process if so much as 1 percent of their equity is owned by a foreign interest. Currently, foreign participation in elections is illegal; this is a clear attempt to curb the speech rights of Americans – and particularly non-profits who may rely on donations from large corporations.
 
In these states, the war on donor privacy is not yielding to well-established precedent. This nationwide campaign is predicated on the not-unlikely hope that enough assaults will exhaust the courts and strip donors of privacy, bringing cancellation policies and doxing to donors of all stripes.
 
Protect The 1st will continue to monitor these threats to the privacy necessary to protect free speech in America.