Earlier this month, over 40 organizations filed “friend-of-the-court” briefs at the U.S. Supreme Court in support of Alliance Defending Freedom’s client, Thomas More Law Center (TMLC). TMLC is challenging a California mandate that requires charities, to hand over the names and addresses of their major donors to the state government every year.
Among those that filed the 40 briefs were some unusual allies:
- American Civil Liberties Union (ACLU), NAACP Legal Defense and Educational Fund, and the Human Rights Campaign
- People for Ethical Treatment of Animals (PETA) and 125 other nonprofit organizations
- The U.S. Chamber of Commerce, which directly represents around 300,000 members and indirectly represents more than 3 million companies and professional organizations
- 22 states
- 24 Family Policy Organizations
- The United States government
With such a diverse list of groups from across the country and across the ideological spectrum, it’s clear that donor privacy is not a partisan issue. And as the recently filed briefs explain, there are a lot of reasons to oppose California’s demand for private donor information—regardless of your political leanings.
- California’s mandate threatens our constitutional freedoms.
As the ACLU and others wrote in their brief: California’s mandate “risks undermining the freedom to associate for expressive purposes. That freedom, in turn, is fundamental to our democracy, and has long been protected by the First and Fourteenth Amendments…. [T]he compelled disclosure of an expressive association’s members or supporters threatens to chill free association, because people may refrain from exercising those freedoms rather than expose themselves to government reprisal or private retaliation.”
Keeping donations private is a way to protect our constitutional freedoms, advance the common good, and allow the diversity of ideas. And it’s one reason why Americans are considered some of the most generous givers in the world.
- The U.S. has historically protected private speech and association.
“The ‘right to remain anonymous” is a core First Amendment freedom, recognized since the Founding … when ‘Founding-era Americans opposed attempts to require that anonymous authors reveal their identities,’” pointed out the U.S. Chamber of Commerce in its brief. In fact, “[a] large part of the debate among the founding generation regarding the ratification of the Constitution took place anonymously.”
Supreme Court precedent protects these rights as well. In NAACP v. Alabama, the Supreme Court blocked the State of Alabama from demanding that the NAACP turn over its membership lists to the state. Releasing those names could have compromised their safety and willingness to express their views in the Jim Crow South.
- There’s no need for states to collect information regarding private financial giving.
A brief filed by 22 states explains: “As sister states with virtually indistinguishable law-enforcement and anti-fraud interests, our collective experience is uniform and unequivocal: we don’t need this sort of compelled collection of donor information for legitimate law enforcement purposes, and its stockpiling is unlikely to lead to any outcome other than mischief and chilling of speech. We therefore do not seek to collect it.”
The California Attorney General’s office admitted that it hardly ever uses supporter information for any purpose. So, it’s hardly a surprise that so many agree: Charities like TMLC shouldn’t be forced to put themselves and their supporters at risk by disclosing information about private financial giving.
- California has historically failed to take proper precautions with this sensitive information.
As PETA, along with 125 other nonprofit organizations wrote: “the Attorney General admitted that its registry ‘is underfunded, understaffed, and underequipped when it comes to the policy surrounding Schedule Bs.’ …. ‘Underfunded, understaffed, and underequipped’ are hardly three adjectives synonymous with effective protection of confidential information.”
At one point, anyone could use a web browser to access confidential documents in the Attorney General’s database. While not technically classified as “public,” anyone could view these documents by simply altering a single digit at the end of a URL. Additionally, nearly 1,800 of these confidential documents were accidentally mislabeled as “public”—making them generally accessible.
- Protecting donor privacy advances the common good.
A brief filed by 24 Family Policy Organizations notes that nonprofits “provide a unique and vital public service to their communities by effectively identifying and meeting local needs with expertise and combined resources…This critical social role benefits from donor anonymity… allowing nonprofits to focus their time and resources on the mission of the organization.”
The services provided by nonprofits help countless individuals and benefit entire neighborhoods. If nonprofits are required to disclose donor information, they could lose revenue. With fewer resources, they wouldn’t be able to serve communities in the same capacity. When we maintain donor privacy, that ultimately benefits the common good.
- Collecting the private, confidential information of donors puts them in danger.
The nonprofit group ChinaAid has a unique perspective on this, noting in its brief that “[t]he risks posed by California’s blunderbuss mandate are felt acutely by nonprofits, like ChinaAid, that face down powerful nation-states for human-rights violations. Increasingly, such nation-states surveil and attack their opponents across borders—in what has become known as ‘transnational repression.’” For example, ChinaAid’s president has received public death threats from China.
If the government requires nonprofits to reveal their donors’ personal information, Americans will have to live in constant fear that they will be harassed, intimidated, or worse because of the causes they support.
PETA agrees. The ACLU agrees. Twenty-two states and the U.S. government agree.
Every American should be free to support causes they believe in without fear of harassment or intimidation. This principle is especially important during this time of increased polarization in our country. There aren’t many current issues that receive a broad range of support from across the ideological spectrum, so it’s refreshing to see such unity on this issue.
We can all do our part to uphold donor privacy. Visit thegivingcase.com for additional information. You’ll find resources created specifically for church and ministry leaders, videos, and more.