Surveying the Landscape on Donor Privacy Two Years After AFPF v. Bonta

June 28, 2023 | Luke Wachob

The First Amendment scored a major victory two years ago this week when the Supreme Court issued its decision in Americans for Prosperity Foundation (AFPF) v. Bonta. The ruling, which was broadly supported by the nonprofit community, struck down a requirement from the California Attorney General that every nonprofit organization soliciting funds in the state report the names and addresses of their donors to state officials.

The case was a win for privacy and free speech because government surveillance of a group’s supporters is a classic tactic of would-be censors. When corrupt politicians wish to silence a group’s message but lack the power to do so directly, one course of action they can take is to target and harass the group’s members. That only works if they know who they are.

Once a group’s donors are identified, however, they can be subjected to intimidation and pressure campaigns to make them stop giving. Through these underhanded efforts, powerful politicians can effectively drain support from pesky watchdogs and advocacy groups that stand in the way of their agendas. Instead of a free exchange of ideas, dissenting views are bullied out of the mainstream.

That’s why, 65 years ago, the Supreme Court sided unanimously with the NAACP in a legal fight over the privacy of its membership list in Alabama. For decades afterwards, the Court carefully policed and rejected efforts by government to expose or monitor the members of advocacy groups and civic organizations. Sadly, in recent years, these rights began to erode in a climate of hysteria around so-called “dark money.”

AFPF v. Bonta put much-needed teeth back into the law protecting Americans’ right to give privately. So where do things stand two years later? Here are just some of the ripple effects of the Court’s ruling and the challenges that still remain.

17 states have passed new laws protecting nonprofit donors from having their personal information illegally collected or disclosed by state governments. These laws prohibit exactly the kinds of demands that the California Attorney General made in AFPF v. Bonta. The laws have passed in red states and blue states, with Democratic and Republican sponsors, and in some cases have even passed entire chambers or an entire state legislature unanimously.

At the federal level, Congress has proposed legislation called the Speech Privacy Act to codify AFPF v. Bonta. The bill was included in House Republicans’ election, ethics, and free speech reform package, known as the American Confidence in Elections (ACE) Act and introduced as H.R. 8528 in the previous Congress. This spring, the House Administration Committee held a hearing spotlighting the importance of the ACE Act’s provisions protecting nonprofit donor privacy on the 10th anniversary of the IRS targeting scandal.

Hawaii, New York, and New Jersey, which enforced similar donor disclosure demands as California, rescinded their requirements for nonprofits to report their members and supporters’ personal information to state officials. Questions remain, however, about the information these states collected in the years before AFPF v. Bonta was decided. After New York chose to maintain those records, two nonprofits based in the state – the Empire Center for Public Policy and New Yorker’s Family Research Foundation – sued Attorney General Letitia James for violating their First Amendment rights. That case is ongoing.

Threats to nonprofit donor lists continue to be a common tool for intimidating Americans and chilling free speech. In New York, James’ office has been accused of leaking the donor list of Nikki Haley’s nonprofit, Stand for America, to an activist group that then leaked it to Politico. In Congress, Senator Sheldon Whitehouse continues his crusade for the public exposure of nonprofits’ donor lists through legislation like the DISCLOSE Act and the AMICUS Act. State legislators across the country continue to propose bills that threaten nonprofit donor privacy as well. Some pass, but many more fail.

One state representative in North Dakota put his reasoning for wanting to expose Americans’ nonprofit donations in blunt terms: “I need to know who my enemies are.” But the Supreme Court had an answer to that claim two years ago: No, you don’t.

As we continue to watch the effects of AFPF v. Bonta unfold, and the line between the people’s right to privacy and the government’s power to compel disclosure is redrawn, what is clear is that the Court’s ruling is one of the most powerful shields Americans have today for their right to privately support their preferred social causes.

Here’s to two years of AFPF v. Bonta, and hopefully many more.