On April 27, People United for Privacy Foundation (PUFPF) filed an amicus brief urging the U.S. Court of Appeals for the Fifth Circuit to review McDonald v. Federal Election Commission (FEC), arguing that the panel’s decision contradicts key U.S. Supreme Court precedents protecting donor privacy rights. PUFPF is the only organization that has filed an amicus brief in the case.

“For nearly three quarters of a century, the Supreme Court and this Court have recognized the right to maintain the confidentiality of one’s associations from undue government intrusion. The panel’s decision guts those protections. Its two holdings dramatically limit individuals’ ability to challenge compelled disclosure regimes—even where disclosure chills donor associational rights,” PUFPF’s brief explains.

McDonald v. FEC challenges federal campaign finance regulations that expose the personal information of small-dollar donors who give through certain online donation platforms, known formally as conduits, such as ActBlue and WinRed. While courts have generally upheld disclosure requirements for campaign donations, Congress has expressly exempted from disclosure donors who contribute $200 or less. Under FEC regulations, however, the identities of small-dollar donors who give through conduits at any level are disclosed.

Disclosure of a donor’s identity and home address can – and increasingly does – facilitate politically motivated harassment, threats, and even violence. As the Supreme Court just reaffirmed in First Choice v. Davenport, disclosure also has an inevitable “chilling” effect; it deters people from giving to campaigns and associating with candidates.

To mitigate these harms, PUFPF has encouraged Congress and the states to update their laws to remove individual donors’ home addresses and employers from publicly available political contributor data. So far this year, West Virginia and Utah have passed reforms to redact home addresses from their campaign finance databases, joining California, Texas, and Wyoming in providing these protections to their residents. Yet, as Congress has recognized, some donations are so small that they should not be disclosed at all.

Moreover, the panel’s ruling in McDonald v. FEC, which dismissed the challenge, is damaging to donor privacy even outside of the campaign context. The decision severely limits the ability of all donors to defend their privacy in court, PUFPF’s amicus brief explains.

“The First Amendment’s delicate freedoms need breathing space to survive. In NAACP v. Alabama, the Supreme Court held ‘that compelled disclosure … may constitute as effective a restraint on freedom of association as [other] forms of governmental action.’ But the panel obliterated the ability of most donors to bring their First Amendment claims in federal court by holding that compelled disclosure is not itself an Article III injury and by limiting chilling injuries to the preenforcement context,” explains PUFPF’s brief, which was authored by Erin M. Hawley and Anne Marie Mackin of Lex Politica PLLC.

Small-dollar donors deserve the same privacy protections when giving online through a conduit that they have long received when contributing directly to a candidate or committee. The Fifth Circuit should grant en banc review of McDonald v. FEC not only to revive a worthy challenge to an unconstitutional regulation, but also to ensure the First Amendment freedom that undergirds every donor’s right to privacy in association is not damaged.