Constitutional Rights or Coronavirus Aid? Businesses Shouldn’t Have to Choose.

March 25, 2020
By Matt Miller

In an example of never letting a crisis go to waste, the current House draft of the “Take Responsibility for Workers and Families Act” would ask businesses to give up their First Amendment rights in exchange for coronavirus relief from the government. Specifically, section 407 of the proposal requires any business receiving financial aid to agree to publicly disclose their donations to nonprofit groups and trade unions. And not just during the crisis—forever. But support for charitable groups is protected by the First Amendment, as the U.S. Supreme Court made clear in NAACP v. Alabama.

No one should be required to give up their constitutional rights in order to receive coronavirus aid from the government. And unlike past crises, like the 2008 financial crash, there isn’t even any allegation that the businesses we’re trying to help did anything to bring about their current difficulties. They did not create COVID-19 and unleash it on the world. They did not engage in bad behavior that caused the crisis. And forcing businesses to publicly disclose their giving to nonprofits and trade associations will do nothing to ensure that any coronavirus stimulus money is wisely spent.

The attack on free speech contained in this bill is just a way to fulfill a long-standing desire on the part of many progressives and liberals to require everyone to publicly disclose their charitable giving. Indeed, these requirements are simply a rehash of H.R. 5929, a measure that predates the crisis. They follow years of efforts on the federal, state, and local levels to make such mandated disclosure widespread. That is why the Goldwater Institute is currently litigating two such cases, in Denver, Colorado, and Santa Fe, New Mexico.

Which is to say that the idea to require such disclosure, in this time of crisis, did not spring sui generis from the head of some legislator as a helpful way to address the economic fallout from coronavirus. Instead, the relief bill is apparently being viewed as a way to exploit the crisis in order to quickly achieve a goal that must otherwise be achieved through extensive debate, deliberative political action, and subsequent constitutional litigation.

This should not stand. Any relief to business should be laser-focused on helping them (and their employees) weather a crisis that they did not precipitate. One helpful way of understanding this point is to imagine that such a requirement was placed on individuals. Imagine the government said, “If you cash that $1,000 crisis-relief check we’re sending you, you agree that any nonprofit giving you do for the rest of your life must be reported to us, and then placed on the internet for everyone to see.”

If that sounds unconstitutional, that is because it is. And it does not matter whether such a rule is applied to individuals, or to a businesses, which are just groups of individuals. The government cannot force you to publicly disclose the nonprofits that you choose to support. (Note that this is different from requirements that such donations be confidentially disclosed to the IRS in order to claim a deduction.)

America is going to need some rebuilding once this crisis has passed. And almost none of that rebuilding will be done by the government—it will be done by private citizens, private businesses, and the charitable organizations they support. When we emerge on the other side of the crisis, the world will feel quite different. The way we see our friends, coworkers, and neighbors will be altered. And what we will need, more than anything, is the ability to band together—probably in some new ways—to fix the things that this crisis has broken. 

Why, then, would we enact a measure that makes businesses less likely to support and cooperate with the nonprofit community? We’re going to need one another. And a law that requires businesses to make public every nonprofit group they support will impede those efforts. The Constitution protects our right to freely associate precisely so that we can some together without government-imposed barriers. So that we can help one another in any way we see fit. Now is the time to support those efforts, not chill them with these unconstitutional requirements.

Matt Miller is a Senior Attorney at the Goldwater Institute.