In an amicus brief filed on November 26 in Buckeye Institute v. IRS, People United for Privacy Foundation urged a federal court to apply heightened scrutiny to an IRS rule requiring charities and nonprofits to turn over their confidential donor lists. The law’s disclosure requirement imposes a “chilling effect” on the freedom of association protected by the First Amendment, the brief explains.

“Every year, the IRS violates the privacy and First Amendment rights of millions of Americans by warehousing records of our donations to nonprofit causes. This IRS policy blatantly contradicts a long line of Supreme Court cases emphasizing that Americans have a right to privacy in their support for nonprofits,” said Heather Lauer, CEO of People United for Privacy Foundation.

The need to protect nonprofit donor lists from government collection was a hard-learned lesson of the Civil Rights Movement. During the 1950s and 1960s, segregationist officials in multiple states targeted the donor lists of organizations like the NAACP in an effort to force them out of business and incentivize harm to their donors. In Alabama, the tactic succeeded for nearly a decade until repeated U.S. Supreme Court rulings finally put sufficient teeth in the law to stop the abuse. The Court’s protections for nonprofit donor privacy were reaffirmed as recently as 2021 in Americans for Prosperity Foundation (AFPF) v. Bonta.

Despite these and other precedents, the IRS requires nonprofits and charities to furnish the names and addresses of their major contributors in annual tax filings. This policy inevitably chills protected speech and association due to the government’s coercive power. Accordingly, the nonprofits asked the U.S. Court of Appeals for the Sixth Circuit to affirm a lower court’s finding that the IRS’s donor disclosure rule must be subjected to “exacting scrutiny” as defined by AFPF.

“The primary way to safeguard associational liberty is to ensure that exacting scrutiny places the burden of justification on the government, not on plaintiffs. Courts sometimes treat exacting scrutiny as a sliding scale whereby those subject to a demand for donor or membership lists must explain why complying will chill their particular associational rights. This approach improperly shifts the burden of persuasion away from the government. By its very nature, requiring organizations to demonstrate specific risk to their donors, rather than forcing the government to carry its burden, will chill civic participation. After all, no donor can predict the future, and a favored group today may be a dissident tomorrow,” the brief explains.

The harm to privacy in warehousing nonprofit donor lists is especially great in today’s world, the brief notes. Records that were previously kept on paper behind closed doors are now digitized and stored on servers. The risk of politically-motivated leaks, hacking, or government abuse of donor records is as high now as ever.

PUFPF’s amicus was authored by former Federal Election Commission Chair Allen Dickerson and Caleb Acker of BakerHostetler along with Ilya Shapiro of the Manhattan Institute. The brief was joined by Philanthropy Roundtable, Manhattan Institute, and Kansas Justice Institute. The case is Buckeye Institute v. Internal Revenue Service.