As I discussed last week on Philanthropy Daily, there is a national and growing trend aimed at requiring the disclosure of donors to nonprofit organizations. This assault on charitable giving is not only bad policy; it is also unconstitutional, particularly as applied to traditional, 501(c)(3) nonprofit organizations.
There are nearly one million 501(c)(3) nonprofit organizations in the United States. They range in activities from churches to legal aid clinics. Some engage in political dialogue, or issue advocacy, and produce research and analysis on some of the most pressing political issues of our day.
These organizations, and in fact any nonprofit organization that engages in political discourse, have been the primary focus of partisan regulators and lawmakers seeking to silence their activities through donor disclosure mandates. This attempt to silence nonprofit speech, unfortunately, is not new.
In 1956, for example, the Alabama Attorney General sought to compel the National Association for the Advancement of Colored People (“NAACP”) to turn over its member list to the state. The Attorney General’s efforts were a not-so-subtle attempt to harass, intimidate, and ultimately repress the politically active group from Alabama. When the group refused to turn over its member list, the case made its way up to the United States Supreme Court. Recognizing the “vital relationship between freedom to associate and privacy in one’s associations,” a unanimous Supreme Court struck down the State of Alabama’s attempt to compel the NAACP to turn over its member list to the government. In so doing, the Court reiterated a fundamental principle under the First Amendment—the right to privately associate and speak freely without the fear of harassment or retaliation.
Twenty-five years later, in Brown v. Socialist Workers '74 Campaign Comm., the Court reiterated this concept: “The Constitution protects against the compelled disclosure of political associations and beliefs.” In other words, the government cannot compel you to identify yourself because you choose to speak on or associate with others regarding political ideas and causes. And only in certain narrow circumstances will this right to association yield to a countervailing and sufficiently significant governmental interests.
None of those narrow government interests applies in the context of 501(c)(3) nonprofits.
As a threshold matter, 501(c)(3) nonprofits are prohibited by law from participating in campaign advocacy by virtue of their 501(c)(3) designation. Government justifications for requiring donor disclosure often only apply in the context of candidate campaign finance cases.
For example, the government may have an interest in requiring donor disclosure in order to prevent quid pro quo, political corruption. That is, exchanging political favors for money. Incidentally, this is also known as bribery, and is already prohibited by numerous state and federal criminal laws. Even still, that interest, and others the Supreme Court has articulated, simply do not apply to issue advocacy groups that do not and cannot engage in campaign-related speech. Therefore, to the extent donor disclosure mandates extend to the activities of 501(c)(3) nonprofits, courts should strike those mandates down as violating the First Amendment rights of nonprofits and their donors.
At the same time, because government agencies are trying to regulate activities that are so clearly protected by the First Amendment, donor disclosure mandates often result in clumsy laws that are so vague and confusing that no one knows what speech is permissible and what speech is prohibited. As a result, those laws are often unconstitutionally vague or overbroad.
As the Supreme Court has set out, “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Because individuals must know how to “steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”
Laws that require disclosure in order to speak commonly do not meet this test.
This is precisely what happened to Dina Galassini. Dina sent a note to 23 friends and neighbors to organize a protest against a local bond measure in Fountain Hills, Arizona. After she did so, local government personnel informed her that her communications made her a “political committee,” and she must immediately cease her activities, or register with the state. Registration with the state involved disclosure requirements. The federal district judge who heard the case ultimately struck down Arizona’s 183-word definition of “political committee” as unconstitutionally vague and overbroad, writing that “it is not clear that even a campaign finance attorney would be able to ascertain how to interpret the definition of ‘political committee.’”
The same fate likely awaits similarly vague and overbroad laws seeking to extend the reach of campaign finance reporting requirements to the constitutionally protected activities of 501(c)(3) organizations.
Donor disclosure mandates are problematic as a matter of policy, and often unconstitutional when developed in practice. Our history is replete with examples of those seeking to silence opposing views by harassing or intimidating the speaker. That is why our Constitution protects that right of all of us to speak freely—individually, as an association, privately, and publically. For the sake of the nearly one million 501(c)(3) nonprofits in the United States—whose activities range from civil rights advocacy to service in soup kitchens—let’s hope that legislatures and courts remember this basic protection.
Jon Riches is the Director of National Litigation at the Goldwater Institute.