Supreme Court Deals Victory for Donor Privacy

COMMENTARY: In one of its last opinions for this year’s term, the court determined that California’s disclosure rule threatens nonprofits ‘across the ideological spectrum’ and struck it down.

The Supreme Court struck down a California rule that requires charities to hand over forms containing the names and addresses of major donors among tax-return information.
The Supreme Court struck down a California rule that requires charities to hand over forms containing the names and addresses of major donors among tax-return information. (photo: Ariya J/Shutterstock)

Issuing the last of its opinions for this year’s term, the Supreme Court on Thursday morning struck down a California rule that requires charities operating in the state to hand over their federal tax returns, including a copy of Schedule B, a form containing the names and addresses of major donors nationwide. 

The rule was put in place by one California attorney general and enforced by her successor. Their names were Kamala Harris and Xavier Becerra. They are now, respectively, the vice president of the United States and the secretary of the Department of Health and Human Services. That does not bode well — but, nonetheless, the court’s decision is an important victory for the right to associate free from the prying eyes of public officials and a culture that cancels anyone who supports unfashionable views.

In a 6-3 decision, the Supreme Court held that California’s disclosure requirement is facially invalid (meaning unconstitutional in every application) because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest. The court’s majority opinion was written by Chief Justice John Roberts.  

Two groups had objected to California’s donor-disclosure requirement. The Thomas More Law Center, a Catholic nonprofit law firm that defends religious freedom, family values and the sanctity of life, and Americans for Prosperity Foundation, a libertarian conservative  advocacy group, argued that the disclosure rule violates the First Amendment’s guarantee of free association by discouraging their donors from making donations. 

Interestingly, liberal and progressive organizations such as the American Civil Liberties Union, the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund and the Human Rights Campaign filed amicus briefs in their support. These groups may be well disposed to the Biden administration, but they understand that the state’s disclosure rule threatens advocacy across all ideologies. The court picked up on this, with Roberts observing that the “gravity of the privacy concerns in this context is further underscored by the filings of hundreds of organizations as amici curiae in support of the” nonprofits. “Far from representing uniquely sensitive causes, these organizations span the ideological spectrum,” he wrote.

Most nonprofits are required to disclose donors of more than $5,000 to the Internal Revenue Service. Federal employees, or anyone who accesses the information illegally, however, face civil and criminal charges if they expose confidential information in these notices. 

State employees in California, by contrast, aren’t held to such a high standard. At one point, more than 1,800 Schedule B forms listing the names and addresses of charitable donors mysteriously appeared on a public website. California claims that it has since put in place additional protections to ensure that confidential documents are not made accessible to the public. We shall see. 

“We do not doubt that California has an important interest in preventing wrongdoing by charitable organizations,” wrote Roberts in his majority opinion. But, he continued, there “is a dramatic mismatch ... between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end.”

He also pointed out that there “was not a single concrete instance in which pre-investigation collection of [information] did anything to advance the Attorney General’s investigative, regulatory, or enforcement efforts. ... In reality, then, California's interest is less in investigating fraud and more in ease of administration. This interest, however, cannot justify the disclosure requirement.”

Everyone, conservative or liberal, should be concerned about the release of IRS information protected by law. It smacks of political “black ops.” That’s why it is very worrying that one group of senators, led by Sen. Sheldon Whitehouse, D-R.I., filed an amicus brief in support of California. The effort to strike down the disclosure rule, they argued, is part of a broader strategy of “powerful influencers” to control “our politics and policymaking, possibly forever.” Note the scaremongering language. 

Earlier this month, ProPublica, a website of journalism that promotes progressive causes, published what it said were 15 years of tax returns of several wealthy Americans it received from “an anonymous source.” The data dump, observed the editorial board of The Wall Street Journal, “arrives amid the Biden Administration’s effort to pass the largest tax increase as a share of the economy since 1968.” Regardless of where you stand on tax policy, the Journal’s editors rightly point to scandal: “Someone at the IRS — or someone who hacked the IRS — leaked the documents to influence the debate in Congress.” 

Thursday’s decision is consistent with long-standing precedent protecting free association from government bullies. In the late 1950s, for example, the Supreme Court struck down an Alabama rule requiring the disclosure of the names of the NAACP’s supporters. Two years later, the court ruled that the names of donors in Arkansas were protected by its prior decision from similar demands. 

Becket, the religious freedom law firm that successfully represented the Archdiocese of Philadelphia in its fight to continue its foster-care ministry free from city officials’ demands that all private agencies endorse same-sex married couples as foster parents, argue that safeguarding donor information is particularly important for protecting religious freedom — especially religious minorities and those who hold and support unpopular religious views. 

In its amicus brief with the court, Becket explained that “the assembly right has always included the ability of a group’s members to not reveal their identities to outsiders, particularly the government.” Cancel culture, aided by technological developments, “has significant negative effects for minority dissenting groups, and religious assemblies and institutions in particular,” warned Becket. Justice Clarence Thomas agreed, writing in his concurring opinion that “[t]he text and history of the Assembly Clause suggest that the right to assemble includes the right to associate anonymously.” Thomas cited Becket’s amicus brief in support of this assertion.  

The Thomas More Law Center soundly asserts that “everybody should be free to peacefully support causes they believe in without fear of harassment or intimidation.” After Thursday’s decision, the Supreme Court made clear that this includes harassment from the progressive politicians from the Golden State and elsewhere. 

Andrea Picciotti-Bayer is the director of the Conscience Project.