America is celebrating a major anniversary this week—well, actually two. Beyond America 250, this week also marks the Fifth Anniversary of Americans for Prosperity v. Bonta (AFPF), a watershed case in protecting donor privacy. Drawing from the Civil Rights cases of the 1950s and 60s, the Supreme Court reaffirmed “exacting scrutiny” judicial review for donor lists. The AFPF decision helped reaffirm the right of privacy of association and the ability of nonprofits to protect their donor lists. NTUF filed an amicus curiae (“friend of the Court”) brief in AFPF, as we detail in this blog post from 2021.
Exacting scrutiny “requires that there be a substantial relation between the disclosure requirement and a sufficiently important governmental interest” and that “the disclosure requirement be narrowly tailored to the interest it promotes.”
Why have this strict test? It’s because, as the Supreme Court recognized in NAACP v. Alabama, “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” and that there is a “vital relationship between freedom to associate and privacy in one’s associations.” Thus, under the case law, the First Amendment protects two rights: (1) to engage in debate concerning public policies and issues and (2) to effectuate that right, to associational privacy. All Americans have the right “to pursue their lawful private interests privately and to associate freely with others in so doing.” The Court in Bates v. Little Rock recognized that the freedom of association must be protected “not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference,” such as registration and disclosure requirements and the attendant sanctions for failing to disclose.
But these hard-won organizational rights began to degrade as governments increasingly demanded information and disclosures as part of campaign finance regulations, charity registration regulations, and the like. But the AFPF decision reaffirmed that there is a “vital relationship between freedom to associate and privacy in one’s associations” via financial support. Just last term, the Supreme Court further recognized that AFPF and its foundation on the Civil Rights cases is the norm, not a one-off decision.
The Supreme Court in First Choice Women’s Resource Centers, Inc. v. Davenport applied AFPF to a subpoena demand for a donor list from the New Jersey Attorney General to a pro-life women’s center. The unanimous decision recognized the danger of donor disclosure: “Strip away the ability of individuals to work together free from governmental oversight and intrusion, and the freedom to associate may become no freedom at all—individuals deterred, groups diminished, and their protected advocacy suppressed.” (Our amicus curiae brief was recognized by the unanimous First Choice Court as a key advocate for protecting donor lists from government demands.) AFPF is therefore not limited to its facts, but is a general rule that applies to all government demands for a donor list.
Our work in protecting and applying AFPF has attracted attention from nonprofit experts like Darryl K. Jones. But the work continues. We, with People United for Privacy Foundation, worked for months to warn the courts that broad donor disclosure was a bad idea for amicus curiae briefs, based on the Supreme Court’s AFPF decision. Ultimately that rulemaking was abandoned. We further highlighted the applicability of AFPF to courts across the country as well, including in fighting the IRS collection of Form 990 Schedule B (a nonprofit’s list of donors) which is filed with the IRS every year.
All of this is made possible by AFPF. So raise a toast to America 250 and also the Fifth Anniversary of Americans for Prosperity v. Bonta!