On Thursday, May 16, the U.S. House Committee on House Administration held a hearing titled, “American Confidence in Elections: Preventing Noncitizen Voting and Other Foreign Interference.” People United for Privacy (PUFP) Vice President Matt Nese sent a letter to the Committee expressing strong support for one portion of the American Confidence in Elections Act, the Speech Privacy Protection Act of 2023, while noting serious concerns for nonprofit advocacy and donor privacy raised by other measures aimed at policing allegations of foreign electoral interference in the nonprofit sector.

“Nonprofits are the backbone of civil society in America and play an essential role in our democracy. Increased regulation of the nonprofit sector risks a panoply of unintended consequences that will dampen civic engagement and threaten Americans’ First Amendment rights. Legislative or regulatory action aimed at exposing the names and addresses of nonprofit members and supporters poses a particular threat to nonprofits’ willingness to engage on issues core to their mission and risks violating free speech and privacy protections guaranteed by the U.S. Constitution. Our pervasive cancel culture coupled with attacks on nonprofit donor privacy represent one of the most serious threats to free speech and democracy today,” the letter explains.

PUFP strongly supports the Speech Privacy Act of 2023, introduced by Congressman Kelly Armstrong as H.R. 4471 and also included in the American Confidence in Elections Act (H.R. 4563) and several additional bills proposed in Congress. Subject to limited exceptions, the Speech Privacy Act prohibits federal agencies from arbitrarily collecting or releasing Americans’ confidential nonprofit donor and membership information. The legislation safeguards the First Amendment right to privately associate with fellow citizens in support of nonprofit causes. It was inspired, in part, by a rash of privacy violations in state agencies over the last decade and the subsequent 2021 Supreme Court ruling reaffirming nonprofit donor privacy protections, Americans for Prosperity Foundation v. Bonta. Similar policies have been enacted into law, frequently on a bipartisan basis, in 19 states to date.

“Individuals may legitimately fear any number of damaging consequences from disclosure, including harassment, adverse governmental action, and reprisals by an employer, neighbor, or community member. Or they may simply prefer not to have their affiliations disclosed publicly – or subjected to the possibility of disclosure – for a variety of reasons rooted in religious practice, modesty, or a desire to avoid unwanted solicitations. For nonprofits, privacy is especially important for organizations that challenge the practices and policies of the very government officials that seek the identities of their members and supporters. The Speech Privacy Act of 2023 responds to and resolves these concerns,” Nese writes.

Yet, other measures under consideration in Congress suggest a more dangerous path for nonprofits and their supporters. In response to fears of foreign electoral interference, some Members of Congress in both parties have expressed interest in directing government agencies to collect information about foreign donors to U.S.-based nonprofits. To enforce such a requirement, the government necessarily must be able to demand information on nonprofit donor lists for verification purposes. This new power would create opportunities for corrupt officials to abuse and chill Americans’ First Amendment rights. The history of disclosure demands is replete with examples of government officials targeting their critics and ideological opponents.

“Given the partisan animations frequently underlying disclosure crusades, it is not a stretch to envision enforcement of such laws occurring on an uneven basis, heavily dependent on the whims of the party in power. Would reproductive rights activists be comforted by enforcement of such laws under a conservative administration? Are pro-life advocates likely to be treated fairly by a liberal administration empowered to assess the veracity of nonprofit filings about an organization’s sources of foreign support?” the letter asks.

The risk to nonprofits’ ability to protect their supporters’ privacy does not end there. If the law includes a complaint process allowing third parties to initiate enforcement proceedings, it could empower a nonprofit’s ideological opponents to paralyze the organization in legal costs and smear its reputation with baseless complaints. There are also substantial administrative concerns with forcing nonprofits to verify the citizenship status of every individual donor.

The letter offers several guidelines for lawmakers to minimize these potential harms:

• Proposals targeting foreign donors to nonprofits must avoid generalized donor reporting.
• The mere existence of a foreign donor to a nonprofit should not result in an organization being prohibited from engaging in protected speech.
• Compliance with regulations surrounding the existence of foreign donors cannot be so extensive or inflexible as to make adherence to the law impossible.
• Policies must be included that prohibit a weaponized enforcement process.

The full letter can be accessed here or as a PDF here. More information about the House Administration Committee hearing and a link to watch the proceedings are available here.