The Supreme Court Shouldn’t Miss This Chance to Protect Donor Privacy

September 30, 2019
By Matt Miller

America is home to nearly 2 million nonprofit organizations and their supporters. Most of them don’t know it yet, but there is a war currently being fought on their behalf.

This war involves the extent to which the government is entitled to know the identities of people who support those nonprofits (and, in some cases, whether the government can publish those identities on the internet). Indeed, the battle has been taken all the way to the steps of the U.S. Supreme Court, where the Thomas More Law Center is asking the Court to decide whether the state of California is entitled to a list of the group’s top donors. Last week, the Goldwater Institute submitted an amicus brief urging the Court to take the case.

With ideological harassment and “cancel culture” on the rise, nonprofit donors have more reasons than ever to be concerned about being put on a government list. Consider these examples:

• In September 2019, San Francisco declared the National Rifle Association, which has 5.5 million members, to be a terrorist organization. Obviously, the NRA has never supported terrorism, nor any criminal activity. It does not advocate for the overthrow of the federal government. Instead, it promotes Second Amendment rights for its members and all Americans. Despite this, San Francisco’s declaration exposes the organization and its members to harassment and intimidation from its ideological opponents.

• In August 2019, Texas Representative Joaquin Castro published the names of 44 private citizens in his district who donated to the reelection campaign of President Donald Trump. Some were almost immediately subjected to harassing and threatening phone calls. 

• In October 2017, the Internal Revenue Service “expresse[d] its sincere apology” to conservative groups, and reached a substantial monetary settlement, after the IRS targeted conservative groups for intense scrutiny based on their ideological positions.

• In 2016, several senators gave speeches on the Senate floor characterizing free-market organizations such as the Heritage Foundation and Americans for Tax Reform as obstructing worthy environmental legislation at the behest of wealthy private citizens—whom the senators repeatedly named on the Senate floor. When the organizations wrote back to object to what they called “bully[ing] and singl[ing] out groups to blame rather than ideas to debate,” the senators responded by demanding to know “who pays your bills.”

• In 2014, Brendan Eich, the CEO of the Mozilla Corporation, was forced to resign after opponents publicized the fact that he donated $1,000 to support California’s now-overturned 2008 gay marriage ban. Even though Eich was widely recognized as a well-qualified and successful CEO, his ideological opponents called for—and got—his resignation from the company.

• In 2012, Senator Chuck Schumer replied to concerns that mandatory disclosure might lead to retaliation by saying “It’s good to have a deterrent effect.” 

• In 2013, Illinois Senator Dick Durbin sent letters to several free-market organizations, including the Goldwater Institute, demanding to know whether they contributed money to the American Legislative Exchange Council (ALEC)—in retaliation for ALEC’s adoption of model legislation relating to the right to self-defense. (The Institute refused to answer.)

As the Institute points out in our amicus brief, “Not only does the trend of forcing organizations to disclose confidential donor information chill the free speech rights of both these individuals and these organizations, but it also exacerbates the dangerously undemocratic tendency to short-circuit debate over the merits of public policy proposals, and to focus instead on personal animosities and personal demonization rather than persuasion.”

This is not a road America wants to go down. 501(c)(3) nonprofits are different from groups that support and oppose political candidates because 501(c)(3) groups are prohibited by law from having anything to do with candidate elections. As a result, the interests the government usually asserts in campaign finance cases—preventing corruption and the appearance of corruption—do not apply. Instead, the government claims an inchoate “right to know” who is supporting nonprofit groups. But there is no “right to know” in the Constitution. Instead, there is a right to speak and to associate freely. By collecting—and often publishing—the names of nonprofit donors, the government infringes on those rights.

Matt Miller is a Senior Attorney at the Goldwater Institute.