President-elect Donald Trump recently nominated attorney Paul Atkins to chair the Securities and Exchange Commission (SEC). While ESG and cryptocurrencies are the headline issues on the SEC’s agenda, Atkins’ return to the commission – where he previously served from 2002 to 2008 – may also have positive reverberations for nonprofit donor privacy.

For many years, Democrat-appointed commissioners at the SEC have sought new regulations requiring publicly-traded companies to disclose their giving to nonprofit organizations. Outgoing SEC Chairman Gary Gensler has expressed his desire for new disclosure rules on corporate giving on numerous occasions. Gensler’s predecessor, Commissioner Allison Herren Lee, opined that “[a]nother significant ESG issue that deserves attention is political spending disclosure.”

This desire for new disclosure rules did not arise in a vacuum. Rather, it is the product of anti-privacy zealots who have espoused baseless allegations about nefarious political influence by nonprofits that advocate for certain policy perspectives. In this broader campaign, the SEC is merely one more avenue to weaponize the government against political opponents, similar to other schemes to expose donors and chill speech at the IRS, the Judicial Conference, and other agencies.

Fortunately, for almost ten years, Congress has passed a budget rider prohibiting the SEC from adopting regulations that police and chill nonprofit advocacy and violate citizen privacy. After the IRS’s brazen transgressions against constitutional rights in the Tea Party scandal exposed the risks of empowering nonexpert agencies to regulate First Amendment activities, Congress has repeatedly added budget provisions prohibiting the SEC from enacting rules or regulations that mandate the disclosure of donations to tax-exempt organizations or membership dues to trade associations.

While the congressional budget rider is a critical tool to prevent further weaponization of the SEC, Atkins’s prospective ascension to the chair of the agency has the potential to be another victory for free speech and citizen privacy. In a 2013 USA Today op-ed, Atkins urged the SEC to reject politicized disclosure rules: 

Although federal law already requires corporations to disclose their political contributions, as well as any activity conducted by corporate political action committees, partisan activists want more, seeking to force the disclosure of expenditures for public policy and government affairs activities. Activists hope to use this information to publicly browbeat their opponents and eliminate their participation in public policy debates.

Having failed to get Congress to require these disclosures in 2010, activists are now targeting the SEC. One problem: The SEC lacks the authority to require disclosure of information that is not material.

After free speech and government weaponization became major themes in the most recent election, it is reassuring to know that at least one agency is poised to resist partisan politicization. The congressional budget rider will keep the SEC focused on its core mission, while nominee Paul Atkins’ record suggests he will resist sending the agency on incursions to regulate political speech. Hopefully, forthcoming nominees across other agencies hold similarly positive promise for nonprofit donor privacy.