The legal battle to protect the anonymity of campaign donors found a new, unlikely ally earlier this year when the American Civil Liberties Union jumped into the issue of whether nonprofit organizations should be required to disclose personal information about their donors.
In September, the ACLU filed a lawsuit challenging the constitutionality of a New Jersey law that would require all social welfare organizations to disclose personal information about donors, as well as details about nonpartisan voter education and advocacy initiatives.
“This law discourages people from donating to non-profit organizations that advocate for causes that they believe make people’s lives better,” said ACLU-NJ Legal Director Jeanne LoCicero. “The law sweeps up hundreds of advocacy organizations, including those that don’t take sides in elections, and even some that don’t directly engage in lobbying the government.”
The legislation, passed by the New Jersey legislature and signed by Gov. Phil Murphy, would require disclosure of information including name, address, occupation, and employer of any donor who contributes $10,000 or more to any social welfare organization — even if it’s not political.
Unlikely Allies
Conservative groups like the Heritage Foundation and the Goldwater Institute have long held that disclosing donor information is a violation of the First Amendment’s right to free speech. This thinking was the basis for the 2010 Supreme Court ruling in Citizens United v. FEC.
Opponents to Citizens United say that failure to disclose donor information leads to the rise of “dark money” in politics and a lack of transparency that is essential to a healthy democracy.
The ACLU is typically a left-leaning organization, but also maintains a strong commitment to free speech apart from political ideology. This commitment, it seems, is at the heart of the group’s lawsuit challenging the New Jersey bill’s extension of disclosure requirements to nonpolitical organizations.
“Nonprofit advocacy organizations are uniquely equipped to provide a check on government and to mobilize concerned people who may have no other option for speaking truth to power – and, unfortunately, this law would silence those voices,” said ACLU-NJ Executive Director Amol Sinha. “The law punishes people for participating in collective action and undermines the basic notion of free speech and association.”
Looking to the Past
Laws similar to the New Jersey bill are also in effect in Denver, Santa Fe, and Phoenix. The Goldwater Institute, a libertarian think tank, is challenging these laws in court.
In a paper on the relationship between advocacy and privacy, Goldwater Institute Senior Attorney Matt Miller compared the present series of legislation to a push in the 1950s to require the NAACP to turn over the names of its supports to government inspectors. He argued that disclosure would have had a chilling effect on the fight against segregation in the South at the time.
In the 1958 case National Association for the Advancement of Colored People v. Alabama, the U.S. Supreme Court ruled that the organization did not have to disclose its donors, saying anonymity and privacy are vital because they allow people to support causes they believe in without fear of reprisal by people who disagree with their beliefs.
Miller argued that today’s media landscape makes donor and supporter privacy more necessary than ever.
“This need for privacy is all the more vital today, where the internet makes it easy to publish lists of donors—and easy to harass and intimidate them,” Miller wrote.
As of November 2019, these cases are still pending in court. The Goldwater Institute filed a brief urging the Supreme Court to address this issue.
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