Speaking of the First Amendment: The Buckeye Institute Defends Donor Privacy and Freedom of Association

​The U.S. Supreme Court in 2021 struck down a California law requiring non-profits to disclose their donors to the state. This ruling was aligned with a landmark 1958 Court opinion that safeguarded the identities of private donors to the NAACP from an Alabama law also mandating disclosure.
 
In the Alabama case during the Jim Crow era, donors could have been exposed to harassment or far worse. In California, the state had a history of accidentally leaking the identities of donors to controversial causes. California today is not the Alabama of 1958, but donors in the Golden State have still been doxed, harassed, and fired.
 
The protections of anonymity – a practice in America as old as The Federalist Papers – is consistent with the implied First Amendment right to freedom of association. Curiously, however, these protections are limited under federal law. Under current law, some non-profits must hand over the identities of their largest donors to the IRS.
 
The Buckeye Institute – a public policy think tank in Ohio – went to federal court to successfully challenge this collection of sensitive, personal data by the IRS from Form 990 Schedule B. The district court found that the IRS donor disclosure requirement should be subjected to “exacting scrutiny” – a heightened level of review that courts apply in First Amendment cases. Now Buckeye is defending its victory against an appeal by the federal government before the Sixth Circuit Court of Appeals.
 
In its brief before the Sixth Circuit, Buckeye says it needs to protect donor anonymity because it:
 
“… criticizes the government … weighs in on topics that many people feel strongly about … which makes privacy critical for The Buckeye Institute and its supporters. Many donors (and potential donors) fear retribution from Buckeye’s opponents, and they’re reluctant to financially support The Buckeye Institute if doing so means the IRS has easy access to their personal information.”
 
Buckeye notes that shortly after its educational efforts successfully persuaded the Ohio legislature to reject Medicaid expansion under the Affordable Care Act several years ago, “the IRS’s Cincinnati office initiated a full-field audit of The Buckeye Institute.”
 
The protection of “exacting scrutiny,” upheld by the federal court, does not mean that the government cannot access donor information. The institute notes that “it is a high bar, but not insurmountable.” But exacting scrutiny is a level of protection that would guard against the kind of political persecution of speech that appears to have occurred with the IRS and Buckeye.
 
A supporting amicus brief from Advancing American Freedom, including several pages listing hundreds of supporting organizations, covers the deep principles at stake in this case. AAF’s amicus declares:
 
“Freedom of association is an American tradition and is enshrined in the First Amendment. The government cannot condition participation in benefit programs on sacrificing a constitutionally protected right without that condition facing heightened scrutiny. And the government cannot collect massive amounts of data about Americans merely for its own convenience.
 
“As former Attorney General William Barr observed about the Consolidated Audit Trail, and Securities and Exchange Commission data collection project, ‘If the government can collect this information just in case, that’s the big-brother surveillance state.’”
 
And surveillance, as we have seen time and again, almost always results in attempts to curb free speech.

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