Does the Government Have a Right to Know What You Support?

Washington, DC (FEE) – Can freedom of association exist without confidentiality? That question hung over a federal courtroom in California in March, where the state tried to compel a charitable foundation to disclose the names of its donors — even the officially anonymous ones. The courtroom exchanges were heated, with the judge sometimes being “openly hostile” to the state’s argument, even accusing the state of “laziness.”

The state of California argued that its interest in rooting out fraud and abuse is important enough to require charitable organizations to provide the state with big donors’ names, saying that review of donor information helps investigators detect misuse of charities. The foundation — Americans for Prosperity (AFP), a conservative political advocacy group that supports limited government, lower taxation, and free market principles — argued that such disclosures would discourage would-be donors from giving money, out of fear of reprisals. The foundation had ample examples at its disposal of what gives rise to such fears, including witness testimony from several donors who have been harassed and threatened for supporting conservative movements. One witness described being spat on at a right-to-work event. Another testified that he received death threats.

The importance of confidentiality may seem clear if you value casting your ballot in secret. You don’t have to keep private who or what you support — but you should be able to. Otherwise, you may fear backlash for unpopular preferences and keep quiet instead of supporting your preferred cause or candidate. Such a change in behavior due to fear of reprisals is commonly referred to as a “chilling effect.” The awareness of chilling effects often influences constitutional law jurisprudence from the Supreme Court on down.

Whether there is a palpable threat of a chilling effect in the California case does not seem so clear-cut, at least not to the state government: the state attorney general says that California is simply enforcing a state law that has been on the books since the 1950s. Maybe. But how it is enforcing the law has changed, unleashing First Amendment concerns and court cases challenging the state’s actions, including the most recent, Americans for Prosperity Foundation v. Kamala Harris.

A Change of Course

California requires nonprofit organizations to register with the state’s Registry of Charitable Trusts. In the past, nonprofits could redact the names and addresses of their donors during the registration process. But now, California Attorney General Kamala Harris refuses to accept registrations with redacted names. In other words, if nonprofits wish to solicit further donations from California residents, the state now requires them to reveal the names and addresses of all their donors — regardless of whether those donors are located in California. Harris asserts she needs donor information to help determine whether charities are actually operating for a charitable purpose and to identify unfair business practices, such as misusing the nonprofit structure to improperly distribute funds. Moreover, according to the state, the process increases efficiency by reducing the need for audits.

The State’s Interest versus Individual Liberties

The attorney general’s change of course raises constitutional concerns. Although the California Registry of Charitable Trusts has promised to keep donors’ names confidential, Harris — the most powerful cop in the state — gets to see them. AFP and other nonprofits have argued that the disclosure requirement is, in and of itself, injurious to organizations’ and their supporters’ exercise of their First Amendment rights to freedom of association.

In a First Amendment challenge such as that presented by AFP, the state must justify its acts by demonstrating that they advance a government interest. The parties to the case hotly debate just how strong such an interest must be.

Is this enough: a new, more efficient mechanism to identify fraud, which could be otherwise detected through alternative means? The judge presiding over AFP’s case didn’t seem to think so.

"Spy" by Yuri Ribeiro Sucupira

“Spy” by Yuri Ribeiro Sucupira

The Chilly Winds That Blow

How much of a threat do the state’s actions need to be to raise constitutional concerns? In a 1976 case, Buckley v. Valeo, the US Supreme Court recognized that governmental intrusion can have an important chilling effect through disclosure requirements: “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Here, the disclosure requirement threatens to infringe on free association rights by casting a shadow over every donation. As the plaintiff in a prior challenge to the state’s actions (Center for Competitive Politics v. Harris) argued, “Individuals are not required to trust state officials with sensitive information about their private associations…. The First Amendment contains no ‘trust us’ exception for state officials wishing to pry into Americans’ choices of charitable beneficiaries and ideological companions.”

Fortunately, privacy concerns appeared to be front and center for the court at the AFP trial, where the judge questioned a state witness: “Are you telling me that the attorney general of the state of California has a right to the privacy of an individual?”

The Upshot and the Downstream Effects

There is hope that AFP’s case will succeed where previous legal challenges to the mandatory disclosure rule have not. While the judge’s opinion is pending, his tenor during trial and his concerns over individuals’ right to privacy suggest that he will reject the state’s position.

The judge would be right to do so. The more information is collected and shared, the more vulnerable that information becomes to exposure. Hackers may access it, people may share it, or technical errors may inadvertently lead to its publication. We see each type of data exposure occur with some frequency. As AFP pointed out at trial, there have been several instances where donor information was publicly disclosed at the California Registry of Charitable Trusts website, either by accident or through vulnerabilities in the state’s system.

Donors’ concerns alone are sufficient to raise constitutional red flags over the state’s actions. And where the state has reasonable alternatives to accomplish its goals, state efficiency should not trump individuals’ freedom of expression and association.

This report was prepared by Foundation for Economic Education. 

Joseph S. Diedrich

Joseph S. Diedrich is a Young Voices Advocate and a law student at the University of Wisconsin.

Nicole Kardell

Nicole Kardell is an attorney with Ifrah Law, a Washington, DC-based law firm. She represents clients in government enforcement actions and other regulatory compliance matters before federal and state agencies.