The U.S. House Committee on House Administration continued its pursuit of new weaponry to police foreign donations to nonprofits at a May 23 full committee markup session of H.R. 8399, the “Preventing Foreign Interference in American Elections Act.” People United for Privacy (PUFP), which previously warned the Committee about lurking threats to First Amendment rights in such efforts, sent a letter to the Committee reiterating our concerns and providing guidelines for avoiding unconstitutional policies that harm donor privacy. The Committee ultimately passed H.R. 8399, sponsored by Chairman Bryan Steil (R-WI), in a 6-1, party-line vote at the conclusion of the markup with Republicans in support and Democrats in opposition. Several members were absent for the vote.

“Legislative proposals that seek to impose donor reporting or prohibitions on the political and issue-based engagement of nonprofits that receive foreign donations must be carefully considered and narrowly tailored to avoid unintended consequences and the trampling of vital speech and privacy rights. While PUFP does not endorse any such legislation, we believe [several] considerations are crucial to minimizing the harms such proposals are likely to invite,” PUFP’s letter states.

H.R. 8399 is part of a broader effort by Republicans in Congress, many of whom are increasingly interested in strengthening prohibitions on foreign involvement in U.S. elections. Foreign nationals have no right to vote in U.S. elections or to contribute to the campaigns of American candidates. However, foreign donations to American nonprofits are perfectly legal. Proposals that seek to impose new donor identity verification or reporting requirements on nonprofits, or to restrict the ability of nonprofits that receive foreign donations to advocate on public policy issues, would inevitably undermine the privacy and speech rights of American citizens who join and support these groups.

As House Democrats have been keen to point out, Republican proposals on these topics increasingly mirror Democratic bills that Republicans have long opposed as antithetical to free speech and donor privacy, such as the so-called DISCLOSE Act. To its credit, H.R. 8399 avoids the worst of these impulses and even includes important privacy-protective legislation, the Speech Privacy Act of 2023, that prohibits federal agencies from collecting or releasing nonprofit donor information. But the inclusion of pro-privacy measures alongside enhanced regulatory requirements impacting nonprofits does not negate concerns about the privacy implications of other aspects of the legislation or the irresponsible “dark money” rhetoric motivating it.

PUFP’s letter emphasizes four redlines that Congress must respect when attempting to police foreign donations to nonprofits:

• Proposals targeting foreign donors to nonprofits must avoid generalized donor reporting. While donors to candidates and political committees are required to be publicly disclosed, Americans generally possess strong First Amendment rights to keep their beliefs and affiliations private if they so choose.
• The mere existence of a foreign donor to a nonprofit should not result in an organization being prohibited from engaging in protected speech. This same theory underlies many of the most significant threats to donor privacy that have been proposed in Congress of late, such as the so-called “DISCLOSE Act.” Nonprofits cannot be forced to sacrifice their right to engage in First Amendment-protected activity as a condition of accepting an otherwise legal donation.
• Compliance with regulations surrounding the existence of foreign donors cannot be so extensive or inflexible as to make adherence to the law impossible. Nonprofits routinely receive donations without the ability or resources to verify the citizenship status of the donor. In many cases, it is not possible to obtain such information without consuming significant time and effort, and in some cases, attaining an answer may be impossible.
• Policies must be included that prohibit a weaponized enforcement process. The burden of proof must be on the actor lodging the complaint, not the accused, and cost-shifting penalties for frivolous complaints should be included in any such legislation.

“Associational privacy is an enduring First Amendment right that has been repeatedly affirmed by the U.S. Supreme Court for decades and shares widespread support among Americans regardless of their political leanings. We encourage Members of the Committee to proceed cautiously with respect to H.R. 8399 and any related legislation, always remaining vigilant, cognizant, and protective of constitutional protections for privacy in association and nonprofit advocacy,” the letter concludes.

As this bill advances, PUFP hopes all Members of Congress take these concerns seriously. The full markup session can be viewed online here.