Both political parties attempt to chill nonprofit advocacy by exposing donor records, memo finds

Privacy experts project as many as 31 states will consider legislation in 2024 that would expose Americans’ personal information when donating to a nonprofit organization. People United for Privacy (PUFP), a national privacy rights advocacy group, warns in a memo published February 12 that efforts to expose donors’ names and addresses are often politically motivated and used to retaliate against citizens for their giving and beliefs.

“No American should lose their job or face harassment at their home for supporting nonprofits that are doing important work in their communities. Yet, in legislatures around the country, bills are being introduced that would expose Americans’ giving preferences and subject them to possible retribution and pressure campaigns, solely for partisan gain,” said PUFP Vice President Matt Nese.

Key Takeaways:

• A majority of states may consider bills in 2024 that would strip Americans of their privacy and violate their First Amendment rights when supporting certain nonprofit organizations.
• Both Democrats and Republicans have targeted donors to nonprofit groups in an effort to chill advocacy around public policy issues.
• Legislative threats in an election year are less numerous, but more dangerous.
• Bills threatening Americans’ right to give privately are often disguised as measures to deter foreign influence in the U.S. nonprofit sector.
• Seventeen states have bucked the anti-privacy trend by adopting stronger privacy protections for Americans who donate to nonprofits.

Party control has no bearing on whether an anti-privacy proposal will receive consideration or become law. Of the 31 states expected to consider bills threatening donor privacy, 14 have legislatures controlled by Democrats while 12 are controlled by Republicans. The other 5 have split control. The top threat states identified in the memo are California, Hawaii, Idaho, Michigan, Minnesota, Ohio, Oklahoma, Oregon, Virginia, and Wyoming.

Many of the bills that would expose Americans’ donation records are promoted as measures to supposedly combat foreign actors attempting to gain influence through American nonprofits. Legislation in Georgia, Missouri, Ohio, Oklahoma, and Washington exemplifies this trend. Other bills aim to redefine and broaden terms in state campaign finance laws to increase the ways in which nonprofits can be forced to expose their supporters when speaking to the public about issues related to government or public policy.

As recently as 2021, the U.S. Supreme Court pushed back against threats like these by reaffirming the importance of nonprofit donor privacy. In Americans for Prosperity Foundation (AFPF) v. Bonta, the Court struck down the California Attorney General’s sweeping demand for nonprofit donor lists as a violation of the First Amendment’s protections for freedom of association. However, new threats to this right continue to arise in the states and cause uncertainty for both donors and nonprofits.

PUFP points to Arizona’s recently adopted ballot initiative, Proposition 211, as an example of how threats to these rights are evolving. Prop 211 passed in 2022 and forces many nonprofits to expose not only their donors, but their donors’ donors. In addition, Prop 211 gives state regulators unprecedented leeway to interpret and enforce the law aggressively.

Arizona is currently facing three separate legal challenges over Prop 211, including a federal lawsuit asserting that the law violates the Supreme Court’s ruling in AFPF. Nevertheless, language from the law has already been copied and proposed in other states like Oklahoma and Oregon.

State legislatures typically consider fewer bills during election years, as legislators turn their attention towards their re-election campaigns. PUFP’s team of policy experts notes that bills that gain momentum despite this trend should be regarded as particularly dangerous.

“While we are likely to see a lower volume of legislative threats in 2024, those threats that are seriously considered are likely to be more intense, buoyed by a desire to negatively impact nonprofit advocacy in the remainder of an election year,” the memo explains.

Threats to donor privacy are numerous, but there is also a competing bipartisan movement in the states to restore personal privacy for Americans who join and support nonprofits. Since 2018, 17 states have passed legislation to enhance privacy protections for 73 million Americans’ who support or join a nonprofit organization. The law, known as the Personal Privacy Protection Act, has been sponsored and supported by lawmakers from both parties in an effort to prevent American citizens from being targeted for their beliefs.

Nevertheless, PUFP warns that nonprofits must remain vigilant against efforts to invade their donors’ privacy.

“As both parties increasingly view donor disclosure mandates as a tool for ruining their opposition and settling political scores, the threat of anti-privacy proposals passing in states across the country is high. All nonprofits must be on guard for harmful proposals in their state,” the memo explains.