Arguments against disclosing nonprofit donor information to the public

	Donor privacy and disclosure policy
Taxonomy of arguments
	• Disclosure of nonprofit donor information to governments; • Disclosure of nonprofit donor information to the public; • Disclosure and political polarization
Donor privacy and disclosure policy by state
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This article is one of 10 that described arguments about donor privacy and disclosure policy between 2019 and 2023. This article may not reflect subsequent developments in arguments about donor privacy and disclosure policy. For more on Ballotpedia's past donor privacy and disclosure policy coverage, click here.

Opponents of donor disclosure to governments argue that mandatory donor disclosure violates free speech rights, violates donors' rights to free association and privacy, stifles public debate and discussion, and can lead to donor harassment, backlash, or retaliation.

Click on the arguments below to see statements from opponents of disclosing nonprofit donor information to governments:

Nonprofit donor disclosure to the public violates free speech rights
Disclosure violates rights to free association and privacy
Disclosure subjects donors to potential harassment, retaliation, and danger
Disclosure inhibits charitable giving, harming the viability of nonprofits
Disclosure harms the public by creating selective enforcement and suppression of controversial or politically unpopular ideas and groups

Argument: Nonprofit donor disclosure to the public violates free speech rights[edit]

Cleta Mitchell, writing in the Minnesota Law Review in 2012, made an analogy between donor disclosure as a neutral tool that can be re-purposed into a dangerous political weapon: “Box cutters are handy household tools, unless and until they are used as weapons to threaten pilots and flight attendants so jumbo jets can be crashed into the Pentagon and the Twin Towers. When disclosure is used as a means to chill and freeze protected First Amendment rights, it is simply a box cutter shredding the Constitution.”^[1]

Argument: Disclosure violates rights to free association and privacy[edit]

In the 1958 case NAACP v. Alabama, the NAACP sought protection from the courts from being required by the state to provide names and addresses its members in Alabama. In that case, the Supreme Court “[concluded] that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have.” The court’s majority opinion continued: “Compelled disclosure of affiliation with groups engaged in advocacy [could be an] “effective … restraint on freedom of association … particularly where a group espouses dissident beliefs.” In its 2015 lawsuit against the state of California, the Americans for Prosperity Foundation (a nonprofit) argued that “confidential disclosure [of the organization’s Schedule B form] to [the Attorney General’s] office itself chills protected conduct or would lead to persecution and harassment of their donors by the state or the public.”^[2]^[3]

In the majority opinion in Americans For Prosperity Foundation v. Bonta, Chief Justice John Roberts argues that California donor disclosure requirements are too broad to match the policy’s objectives and prevent corruption and fraud by nonprofit organizations. The opinion states: “California’s disclosure requirement imposes a widespread burden on donors’ associational rights, and this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important."^[4]

In its summary of Americans for Prosperity v. Rodriquez (2021), the Legal Information Institute—a nonprofit legal information clearinghouse sponsored by Cornell University—said: “a line of cases dealing with compulsory disclosure of private associational membership lists—beginning with NAACP v. Alabama—serves as clear precedent for why compelled disclosure rules that potentially impinge on free association should be subjected to the most stringent form of judicial review.”^[5]

In a 2018 amicus brief on Americans for Prosperity v. Becerra, the American Legislative Exchange Council, a nonprofit that describes itself as a "membership organization of state legislators dedicated to the principles of limited government, free markets, and federalism," argued the right to privacy is intrinsic to both constitutional rights and philanthropic giving. ALEC wrote that the “first, fourth, fifth and fourteenth amendments of the United States Constitution have been interpreted by the U.S. Supreme Court to respect that an individual has an inferred right to privacy under many circumstances. . .violating the privacy of individuals who choose to donate to nonprofit tax-exempt organizations has the potential to pose a serious threat to an individual’s safety and well-being, chill free speech for fear of retribution and stifle subsequent participation in the political system. . .American Legislative Exchange Council asserts government transparency coupled with individual privacy is essential to keeping government accountable to the people and the people free from excessive government intrusion."^[6]

Argument: Disclosure subjects donors to potential harassment, retaliation, and danger[edit]

Some claims in the arguments about donors’ right to privacy and free association highlight the potential for donor information to be used for harassment and threats. In NAACP v. Alabama on whether the NAACP should be allowed to keep donor and member lists confidential, witnesses testified that “between 100 and 150 members declined to renew their NAACP membership, citing disclosure concerns.”^[7]

Brad Smith, a former member of the Federal Election Commission and chairman of the Institute for Free Speech whose mission is to "promote and defend the First Amendment rights to freely speak, assemble, publish, and petition the government," said in a 2019 interview: "We have documented evidence of people [whose donations become public] being fired from their jobs, or companies not really wanting to fire them but feeling they had to because they were being boycotted or harassed. We have evidence of people being in some cases physically attacked.”^[8]

The 2021 Supreme Court opinion in Americans for Prosperity v. Bonta argued the regulatory requirement to disclose donor information, even if the information is kept confidential, creates a chilling effect on potential donors: “California’s demand for Schedule Bs cannot be saved by the fact that donor information is already disclosed to the IRS as a condition of federal tax-exempt status. For one thing, each governmental demand for disclosure brings with it an additional risk of chill.”^[4]

Writing for the majority in Americans for Prosperity v. Bonta, Chief Justice Roberts identified the potential for public harassment as a threat to the freedom of association: “When it comes to the freedom of association, the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough.”^[4]

John Bursch, senior counsel and vice president at Alliance Defending Freedom, a legal organization that describes itself as dedicated to protecting religious freedom, said at the 2021 Supreme Court hearing on Americans for Prosperity v. Becerra: "Potential givers to charities have good reason to fear being doxed — that is, having their public information spread for malicious purposes. Too many are quick to ostracize, lambast, and threaten people who they disagree with politically or morally. This tendency — often described as ‘cancel culture’ — shouldn’t be codified or aided by the force of law.”^[9]

Argument: Disclosure inhibits charitable giving, harming the viability of nonprofits[edit]

In an amicus brief in Americans for Prosperity v. Becerra (2021), Philanthropy Roundtable, a nonprofit organization with a mission to “foster excellence in philanthropy, protect philanthropic freedom, and help donors advance liberty, opportunity, and personal responsibility," wrote: “Donor privacy is crucial. Many donors will choose not to give if they cannot keep their donations confidential. This desire for privacy may stem from religious conviction. The Americans for Prosperity Foundation’s petitioner’s brief quotes The Philanthropy Roundtable’s previous brief on the long-standing religious tradition of anonymous giving. Donors may also wish to remain private in order to avoid unwanted solicitations or concerns that their donation may spur harassment and retaliation. Forcing such disclosure against the wishes of donor will lead to less giving and will undermine the ability of charitable organizations to fulfill their missions.”^[10]

The Cato Institute, a nonprofit which describes its mission as "to create free, open, and civil societies founded on libertarian principles,” contended that the Ninth Circuit’s decision on Americans for Prosperity v. Becerra (2015), “if left to stand, chills charitable giving nationwide because charitable organizations would be forced to choose between forgoing nearly 40 million potential donors or disclose the Schedule B forms.”^[11]

Argument: Disclosure harms the public by creating selective enforcement and suppression of controversial or politically unpopular ideas and groups[edit]

Michael Macleod-Ball and Gabe Rottman, writing for the American Civil Liberties Union (ACLU), said: "Giving the government too much power to limit political speech will inevitably result in selective enforcement against unpopular groups. A senior official at the IRS admitted that IRS staff who were reviewing applicants for tax-exempt status took a harder look at applications with ‘tea party’ or ‘patriot’ in their names. She stressed that the added scrutiny was done as a ‘shortcut,’ not out of ‘political bias.’”^[12]

The Institute for Free Speech—a nonprofit that describes itself as “the nation’s largest organization dedicated solely to protecting First Amendment political speech rights”—makes a distinction between donors to political campaigns (who are appropriately identified in public records) and donors to organizations involved in public policy debates. “Proponents of greater regulation of political speech often argue more disclosure will lead to a more transparent and better-managed government. However, stringent reporting requirements actually chill speech and limit the breadth of voices that can or are willing to speak out on issues. . .Groups primarily interested in speaking on policy rather than elections should be free to participate in that debate without having to worry about filing a litany of campaign finance reports and without being forced to turn over the private information of their members and supporters. Only groups with a primary purpose of influencing elections can properly be required to report the private information of their supporters to the government.”^[13]

The Goldwater Institute, a nonprofit which describes itself as a “conservative and libertarian public policy think tank," argued in its "The Victims of 'Dark Money' Disclosure" (2015): “Troublingly, disclosure mandates are sweeping the country in the form of vague and overbroad regulations reaching the activities of 501(c)(3) nonprofit organizations – groups that operate in nearly every sector and industry in the United States and represent views across the political and philosophical spectrum. These mandates have diluted political dialogue, invited harassment and retaliation against speakers, and chilled speech and association."^[14]

Writing for the Cato Institute, a libertarian advocacy organization, Timothy Sandefur wrote in 2021 that “Anti‐privacy mandates encourage the insidious ‘chilling effect’ whereby people refrain from donating to groups or causes they believe in for fear of retaliation. Measuring a chilling effect can be hard because it is impossible to determine how many people are frightened into silence. When people choose not to speak out, there are fewer instances of overt retaliation against speakers — just because there are fewer speakers. Or, as the D.C. Circuit Court of Appeals put it, the fact that one cannot point to specific examples of people being harmed for expressing themselves ‘can be viewed as much as proof of the success of the chill as of evidence of the absence of any need for concern.’ When told that they must risk exposure and retribution for donating to causes they believe in, many people simply prefer to keep their heads down.”^[15]

Overview of arguments taxonomy[edit]

See also: Taxonomy of arguments about donor disclosure and privacy

Ballotpedia broke down the debate over donor disclosure and privacy according to the following three subject areas that each had supporting and opposing arguments:

Arguments about disclosure of nonprofit donor information to governments