Protecting Donor Privacy in Arizona (H.B. 2153)

by Matt Miller
January 22, 2018

Arizonans want a strong non-profit sector, robust debate about important public issues, and uniformity of laws across the state.  House Bill 2153 provides all of these benefits while protecting the First Amendment rights to freedom of speech and freedom of association of local charities and their supporters.

Sixty years ago, in the landmark case of NAACP v. Alabama, the Supreme Court held that everyone has the right to support the causes they believe in, free from fear of retaliation and intimidation.  In other words, under the First Amendment, people have a right to support non-profits anonymously.  And that means the government cannot demand a charity’s donor list just because that group supports or opposes a ballot proposition.

Fortunately, the State of Arizona passed a law protecting donor privacy in 2015.  But since then, a nationwide movement has been underway in cities to require non-profits to disclose their donors to the government.  Santa Fe, New Mexico, passed such a law in 2015 and used it to demand the donor list of a non-profit group that opposed a municipal soda tax.  Denver, Colorado, passed such a law in 2017.  The Goldwater Institute represents local non-profits in legal challenges to both of those laws.

Now, these municipal donor-disclosure requirements are spreading to Arizona, where Tempe is poised to become the first Arizona city to adopt such a law.

House Bill 2153 addresses this problem in three ways:

First, the bill strengthens the Arizona non-profit community by maintaining donor privacy statewide.  People have various reasons for wanting to maintain their privacy—from simple modesty, to religious convictions, to fear of intimidation and harassment from people who oppose the causes they support.  Studies show that people are less likely to give to charity if they fear their name will be put on a government list and publicized on the internet.

Second, the bill ensures that Arizona non-profits will be able to continue to speak about important public issues.  These groups should be free to share their expertise about municipal ballot measures.  It is unconstitutional to force non-profits to choose between remaining silent and protecting the privacy of their donors.  Individual listeners—and not the government—should choose which voices to listen to in the marketplace of ideas.

Finally, the bill takes existing state-law rules and applies them to cities by pre-empting cities from demanding lists of non-profit donors.  This creates a uniform set of rules and expectations for all non-profits in the state.  Of course, they must continue to comply with all federal and state laws governing their tax-exempt status.  But, with House Bill 2153, those groups can rest assured that their donors’ privacy will be respected throughout Arizona.

Read Matt Miller’s new report, Privacy and the Right to Advocate: Remembering NAACP v. Alabama and its First Amendment Legacy on the 60^th Anniversary of the Case.

Matt Miller is Senior Attorney in the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.