States need to ensure donor privacy

By Aaron Rice
April 10, 2019

Private citizens should not be subjected to government harassment for supporting causes they believe in, and charities should not have to worry about their funding drying up because donors fear reprisals.

Yet many policy pundits on the left, and even a few on the right, have been doing all they can to convince lawmakers across the country that the government has a compelling interest in knowing to whom you give your after-tax money. In using popular language such as “dark money” and “transparency,” the Left really means that it wants to know who funds its opposition, so it can bring pressure to bear and suppress its opponents’ speech with coercion and threats.

It’s no surprise that in blue states, including California, New York, Delaware, and New Mexico, the government is compelling 501(c) charities to disclose information about their donors. In recent years, some red states, too, including South Dakota, Utah, Alabama, and South Carolina, have also proposed legislation or regulation that would strip away donor privacy for charitable organizations, in the name of good government.

While transparency is what citizens require of their government, privacy is the constitutional right afforded to citizens. Conflating public requirements and private rights is clever but disingenuous. We should not allow proponents, from the Left or the Right, to get away with such sophistry.

In the Federalist Papers, a collection of 85 essays promoting the adoption of the United States Constitution, written by Alexander Hamilton, James Madison, and John Jay in 1787–88, the three founders used the pseudonym “Publius.” They did so because to advocate for something as radical and controversial as that revolutionary document was dangerous. Not everyone in power in 18th-century America agreed with these ideas.

The same was true of the supporters of the NAACP in the 1950s, when it was advocating for equal rights for every American. During those tumultuous times, many people of public influence and power were demanding to know the names of members or supporters of the NAACP. In NAACP v. Alabama (1958), Justice John Harlan II outlined the practical effects of compelling organizations to disclose their donor lists: It exposed them to “economic reprisals, loss of employment, threat of physical coercion, and other manifestations of physical hostilities.”

Now imagine a person today who loses his job when his climate-zealot boss finds out that he gives money to a charity that opposes the Green New Deal. Or imagine the symphony director in a major city who is publicly shamed and harassed because he dared give to a charity that supports requiring people to use the public restroom that corresponds with their biological sex. Or how about an actual case in California, where the director of the Los Angeles Film Festival was forced to resign because he supported Proposition 8, the controversial rejection of same-sex marriage. California has been a proponent of forced disclosure of donor information for years, claiming that the information would be safe in the state’s hands. Yet Kamala Harris, the former California attorney general and now a U.S. senator and presidential hopeful, “inadvertently” allowed the names of donors to roughly 1,700 non-profits to be posted on a government website.

Nadine Strossen, a New York University law professor and former president of the American Civil Liberties Union, is a strong advocate of donor privacy. “Individuals should be able to join and support organizations without having their names and other private information disclosed,” she argues. “These rights remain essential today for the ongoing advocacy of civil-society groups across the ideological spectrum.

Mississippi, where I live and work, has now become the second state, joining Arizona, to protect the privacy of non-profit donors. Governor Phil Bryant signed House Bill 1205 into law at the close of the legislative session last month. The bill codifies a long-standing practice of barring the government from demanding or releasing publicly the personal information of donors to 501(c) non-profits. At a time when partisanship seems to reign, the publication of personal information can expose citizens to intimidation and harassment from those who want to shut down speech with which they disagree. Fortunately, two states — and may others follow — have taken steps to ensure the fundamental American right of donor privacy.

“In recent years, charitable donations have been weaponized by certain groups against individuals to punish donors whose political beliefs differ from their own,” Governor Bryant said at the signing of the bill. “I was pleased to sign HB 1205, which protects free-speech rights of Mississippians who make charitable donations.” Let’s hope more governors and state legislatures follow suit.

This column appeared in National Review on April 9, 2019. 


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