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An Assault on Nonprofit Giving

January 28, 2016

California Attorney General Kamala Harris wants to make it harder to donate to nonprofit organizations. 

Several weeks ago, the organization for which I work, the Goldwater Institute, received a demand from Ms. Harris’s office to turn over a copy of private tax information that includes “the names and addresses of [Goldwater] contributors.”  Although this information is protected from disclosure under both the First Amendment to the United States Constitution and federal tax law, refusing to comply with this demand would presumably result in our organization losing its ability to solicit new members in the State of California.

Ms. Harris’s demands are part of a broader national effort to force donors to private nonprofit organizations to turn their names, addresses, and contributions amounts over the government in order for those groups to engage in political dialogue.

Couched as “transparency” measures, these donor disclosure mandates are in actuality a concerted effort to stifle speech with which donor disclosure advocates disagree. 

Do you donate to the Sierra Club or the National Rifle Association?  The Attorney General wants to know who you are, what your address is, and how much you give.     

This is disturbing for a number of reasons. 

Of course, private giving is a fundamental part of charitable activity.  Ever seen “anonymous” listed on a donor wall?  Donor disclosure mandates would prohibit this act of selflessness unless you were willing to disclose your name to the government.      

What’s more, throughout history, in political discussion, literature, the arts, news reporting, among many other fields, privacy has been essential for unfettered dialogue.    

Private giving also prevents retaliation against speakers by those who disagree, particularly when speaking truth to power.  From the Civil Rights era to today’s most contentious political debates, political actors throughout history have sought the identities of those with whom they disagree in order to threaten, harass, and intimidate them into silence.    

Which is why the Constitution prevents these types of government intrusions. 

In 1956, the Alabama Attorney General sought to compel the National Association for the Advancement of Colored People to turn over its member list to the state.  The Attorney General’s efforts were a not-so-subtle attempt to harass, intimidate, and ultimately force the politically-active group from Alabama.  When the group refused to turn over its member list, the case made its way up to the United States Supreme Court.  Recognizing the “vital relationship between freedom to associate and privacy in one’s associations,” a unanimous Supreme Court struck down the State of Alabama’s attempt to compel the NAACP to turn over its member list to the government.  In so doing, the Court reiterated a fundamental principle under the First Amendment – the right to privately associate and speak freely without the fear of harassment or retaliation. 

Donor disclosure advocates often advance transparency in politics as the reason for their mandates.  But Ms. Harris’s demand is particularly astounding because it extends to groups that are forbidden by law from engaging in electoral politics. 

The Goldwater Institute is a nonprofit organization under 501(c)(3) of the federal tax code.  That means we can, and do, engage in dialogue about some of our nation’s most pressing political issues, but we cannot, and do not, participate in candidate campaigns.     

Our organization is one of nearly one million 501(c)(3) private charities.  Other such nonprofits include schools, churches, hospitals, art centers, public radio stations, research and education foundations, legal aid clinics, among many others.  These nonprofit groups include neighborhood soup kitchens and the American Civil Liberties Union (“ACLU”).  They range ideologically from the Cato Institute to the Center for American Progress.  

Ms. Harris claims a legitimate law enforcement purpose in collecting the names and addresses of donors to nonprofit organizations.  But this justification is no more availing than the National Security Agency’s bulk collection of Americans’ phone records without lawful authority.  As the state’s chief law enforcement officer, Ms. Harris should well know if law enforcement agencies seek private information, they must go to court to get a warrant, lest we all fall within their dragnet.  

On January 25, 2016, the Goldwater Institute joined with over 60 nonprofit entities, leaders, and lawyers in a letter to oppose Ms. Harris’s attempts to codify her office’s donor disclosure demands in a rule-making process.  Over 1,400 individuals concerned about donor privacy also signed the letter.  Although Ms. Harris claims to want to protect confidential records, her proposed rule provides no safeguards to ensure donor privacy.      

Every American has the right to support the causes we believe in without the fear of harassment and retaliation.  Disclosure mandates undermine this basic freedom, dry up donations to charities, and silence political speech.    

What do donor disclosure demands mean in practice?  A donation to the NRA or Green Peace is reported to the government.  Member dues to the ACLU or the Chamber of Commerce are no longer private and may be disclosed to the public.  Under these proposals, how many donations would be withheld?  How much speech would be silenced?  Unfortunately, silencing speech may be precisely the objective of partisan regulators looking to muzzle opposing views.


CA comments(1/27/2016)



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