Donor disclosure laws threaten constitutional rights, attorney says

The freedoms of speech and association are under attack according to sixty-two percent of Americans who are afraid to reveal their opinions on matters of public importance. Nearly one-third believe they will lose their job or miss out on career opportunities should there be a disclosure of their donations, according to a Cato Institute poll.

“Out of fear of harassment or social banishment, many donors to certain causes prefer to make their gifts anonymously,” Jennifer C. Braceras, director of the Independent Women’s Law Center, wrote in a “USA Today” op-ed piece. “Unfortunately, some politicians today want to require charities to turn over their donor lists to the state. Democratic politicians in California, News York and New Jersey have been particularly aggressive in their attempts to force non-profits to reveal the names and addresses of their top donors — in some cases for publication on the Internet.”

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And it is not just donations to causes. Would donations to a church or ministry be exposed? What about your local Christian school? Disclosure of donors could be a slippery slope.

Although proponents of donor disclosure laws claim they are needed to combat fraud, state officials already possess the power to subpoena donor information in conjunction with specific investigations, making bulk collection unnecessary. Politicians may be seeking donor information to expose those who oppose their pet causes or to create informal enemy lists. And in the Internet era, can there be any doubt that even well-intentioned donor disclosure laws will be compromised by hackers, leakers, or sheer incompetence?

The Arkansas Project referred to a paper by Matt Miller, Senior Attorney for the Goldwater Institute, explaining why exposing donor lists is not just flawed, but dangerous. In that paper, Miller noted that the Supreme Court held in 1958 that “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

This term, the Supreme Court has an opportunity to clarify that such laws violate the First Amendment right of free association. The court agreed to take up two cases that challenge California’s donor disclosure policy.

Miller writes that the 1958 Supreme Court case NAACP vs. Alabama “recognized that anonymity and privacy are vital because they allow people to support causes they believe in without fear of reprisal by people who disagree with their beliefs. This need for privacy is all the more vital today, where the internet makes it easy to publish lists of donors—and easy to harass and intimidate them. The stakes may be different today than they were in the 1950s, but those stakes are still real for people who have been harassed online and in person, and even lost their jobs, just because they held unpopular beliefs. As cities and states across the country continue to adopt laws requiring non-profits to disclose the identities of their supporters, the question of donor privacy will eventually return to the Supreme Court. When it does, NAACP v. Alabama will be front and center as the Court decides whether to uphold—or ignore—its legacy.”

“Like the fight for American independence, the abolitionist movement, the quest for women’s suffrage and the American civil rights movement, most causes or social movements today (on the right and the left) depend, in part, on the support of anonymous donations,” Braceras said. “In the era of cancel culture, doxxing, computer hacking and cyber-bullying, the Supreme Court must protect our right to join and support unpopular groups anonymously. American civic life depends on it.”

–Dwight Widaman | Metro Voice