House Judiciary, Oversight Committees Take a Stand for Donor Privacy

November 9, 2023 | Luke Wachob

The First Amendment protects the right to privately support social causes, but that doesn’t stop government officials from trying to undermine this freedom any way they can. Sometimes they propose new laws or regulations to expose Americans’ membership or donations to nonprofit groups. Other times they launch politically motivated investigations targeting specific organizations and their members based on their speech or beliefs.

Last decade, we saw multiple major scandals arise from investigations of this kind. During the Obama administration, the IRS targeted conservative groups at the height of the Tea Party movement. IRS officials slow walked their applications for nonprofit status and subjected them to intensive and unnecessary questioning about their members, volunteers, and internal communications. In the states, a sprawling “John Doe” investigation in Wisconsin swept up nonprofit groups that supported then-Governor Scott Walker’s policy agenda. The state supreme court eventually stepped in and shut the investigation down for rampant violations of the law.

Fast forward to today, where we’ve seen then-California Attorney General Kamala Harris’s abuse of nonprofit donor records become the catalyst for a landmark pro-privacy decision at the Supreme Court in Americans for Prosperity Foundation v. Bonta, and we’ve witnessed the New York Attorney General’s Office leak the donor records of a nonprofit organization affiliated with Nikki Haley in a case that’s still unresolved.

Now, House Judiciary Committee Chairman Jim Jordan and House Oversight and Accountability Committee Chairman James Comer are concerned something similar may be happening in Washington, D.C. with nonprofits associated with Leonard Leo. In a letter to D.C. Attorney General Brian Schwalb, the Chairmen write:

“The Committees on Judiciary and Oversight and Accountability are conducting oversight of the District of Columbia Office of Attorney General’s reported effort to investigate Leonard Leo and certain nonprofit organizations with which he is affiliated. Given prior attempts by state attorneys general to target conservative nonprofits and their donors—and your apparent political motivations for investigating Mr. Leo—the Committees are concerned about potential infringement on free association and donor privacy. To ensure that these vital constitutional protections are being respected, the Committees are seeking additional information about your efforts and would appreciate your full cooperation with our inquiry.”

The letter continues by citing Supreme Court precedent in explaining why threats to donor privacy are so dangerous:

“Worse yet, the Committees are troubled that your investigation could infringe upon the fundamental rights of donor privacy and free association. The U.S. Supreme Court has repeatedly affirmed the associational and privacy rights of donors—including the right of Americans to donate anonymously—especially when these rights are threatened by attorneys general who target nonprofit organizations for political reasons. As Justice Harlan made clear in the seminal case on this issue:

‘Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.’”

It is heartening to see leaders in Congress stand up for fundamental liberties like privacy and freedom of speech at a time when they are increasingly under attack. The privacy rights of nonprofit supporters, in particular, are often derided by opportunistic politicians on both sides of the aisle and the partisan press as “dark money.” In reality, the freedom to privately donate to a cause is important to Americans of all beliefs and constitutes a core component of our First Amendment. Freedom of speech, assembly, and petition wouldn’t mean much if Americans who exercise these rights could be targeted and retaliated against by disapproving government officials. Regardless of who is in power, the temptation to damage one’s opponents is great. This is precisely why privacy protections are paramount.

As questions swirl about the D.C. Attorney General’s investigation, Chairmen Jordan and Comer are right to point out that the liberties at stake here are critical, and the danger of politically motivated investigations must be carefully guarded against.