A New Mexico law that compels donor disclosure from issue advocacy organizations recently survived a nonprofit’s challenge in the U.S. Court of Appeals for the Tenth Circuit. In response, the group appealed to the U.S. Supreme Court. People United for Privacy Foundation (PUFPF) partnered with National Taxpayers Union Foundation (NTUF) to file an amicus brief urging the Court to take the case.

“The reach of the decision below is sweeping. It breaks with Tenth Circuit precedent and creates a circuit split. And it mangled the application of this Court’s exacting scrutiny test for donor list demands. Combined, these reasons suggest that this case is a good vehicle for this Court to clarify the line between freedom of speech and regulation of speech through donor disclosure,” the NTUF-PUFPF brief explains.

The Rio Grande Foundation (RGF), represented by attorneys from the Liberty Justice Center, brought the lawsuit shortly after the disclosure law was enacted in 2019. Like many nonprofits across the country, RGF publishes summaries of legislators’ voting records on issues of importance to RGF’s mission. These ballot guides do not advocate for or against any candidate or ballot measure, yet under New Mexico’s 2019 law, they still trigger disclosure mandates.

That’s because New Mexico redefined “independent expenditures” to include communications that merely mention a candidate or ballot measure within 30 days of a primary election or 60 days of a general election. Nonprofits that exceed minimum spending thresholds on these communications ($3,000 for statewide races, $1,000 for non-statewide races) are required to publicly report the names and addresses of their donors over a two-year election cycle.

Exposing donors’ personal information and support for nonprofit causes creates a risk of retaliation and harassment. For this reason, state demands for nonprofit donor lists must survive “exacting scrutiny” under decisions like NAACP v. Alabama (1958) and Americans for Prosperity Foundation v. Bonta (2021). Today’s heated political climate and digitally connected world further heighten donor privacy concerns. 

Even the Tenth Circuit panel that upheld the law in a 1-1-1 decision was troubled by its implications. In a concurring opinion, Judge Harris Hartz described a mismatch between the ideals and the reality of disclosure under New Mexico’s law:

“It seems to me that the infringements on free speech imposed by disclosure requirements for expenditures in support of or opposed to ballot initiatives are not only unjustified but are harmful to the public interest. The ‘reason’ to require disclosure is presumably to inform the electorate of who supports or opposes the initiative so that voters can make a better choice. … But experience demonstrates that the most likely effect of disclosures is to facilitate ad hominem arguments. As the Supreme Court recognized 30 years ago when it protected anonymous leafleting regarding a proposed tax levy: ‘Anonymity . . . provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.’ Why else did the authors of the Federalist Papers publish anonymously?”

In a forceful dissent, Judge Alison Eid added that the law “unnecessarily burdens core political speech, ignores serious concerns of retaliation against donors, and disproportionately harms those who hold unpopular beliefs. This far exceeds the bounds of permissible First Amendment regulation…”

By regulating nonprofits that engage in issue speech like political committees, New Mexico’s law conflicts with a half century of Supreme Court precedent dating back to the landmark campaign finance decision Buckley v. Valeo (1976). In that ruling, the Court explained that campaign finance and disclosure requirements should only apply to organizations controlled by candidates or whose “major purpose” is political activity.

Educating voters about the issues and candidates on the ballot so they can make informed decisions is an important role nonprofits play in society. New Mexico’s law wrongly silences groups like RGF, National Taxpayers Union (NTUF’s sister organization), and PUFP (PUFPF’s sister organization) from speaking to voters during election season without exposing their supporters to potential retaliation. The Supreme Court should grant review in Rio Grande Foundation v. Oliver to vindicate RGF’s donor privacy and free speech rights and resolve the circuit split opened up by the Tenth Circuit’s wrongheaded decision.