It is rare these days to find anything that unites liberal and conservative groups in common cause, but a Supreme Court case may have done just that.
The justices heard oral arguments Monday in a case that’s been winding its way through the court system for years.
The story began when the California attorney general’s office asked nonprofit charities to provide names and addresses of top donors — and the amount of their contributions — upon registering with the state.
The state attorney general at the time, Xavier Becerra — who is now President Joe Biden’s secretary of health and human services — argued that the state needed the information to aid in charitable fraud cases, should they arise. The Americans for Prosperity Foundation and the Thomas More Law Center are now challenging the rule with the support of dozens of other nonprofits that have filed amicus briefs with the court.
To clarify, the AFPF is not the same as its more well known sister organization, Americans for Prosperity, though both were created by billionaire libertarians Charles Koch and his late brother, David — peddlers of kryptonite to people on the left.
The foundation isn’t a political entity — it doesn’t pay for political ads and donations are tax deductible — but was established as a 501(c)(3) and “has been educating and training citizens to be advocates for freedom” for more than 20 years.
Americans for Prosperity, on the other hand, is organized as a 501(c)(4) “social welfare” organization and can pay for political advertisements — and does with gusto.
The crux of the case is whether California’s demand for charities’ donors’ names — even when held confidentially by the state — violates the First Amendment’s free speech and association rights. The AFPF’s position is that donating to a cause is akin to gathering with like-minded citizens to have a conversation or stage a protest, and so cannot be limited.
What makes this case so interesting is that a number of liberal organizations that also rely on donors known and unknown — the NAACP Legal Defense and Educational Fund, the ACLU and the Human Rights Campaign among them — have filed amicus briefs supporting the AFPF.
In a joint brief, the NAACP and the ACLU wrote that the right to join together is “fundamental to our democracy,” and if “the State could categorically demand disclosure of associational information, the ability of citizens to organize to defend values out of favor with the majority would be seriously diminished.”
There is good reason to think so. The NAACP cut its teeth on a similar case decades ago, when Alabama demanded the organization’s membership list in hopes of shutting down the group’s activities. The civil rights group turned over its business records but refused to disclose its members’ identities to avoid violent repercussions. The fight for the group’s donors went to the Supreme Court in 1958.
Ruling unanimously in the NAACP’s favor, Justice John M. Harlan II explained that the First Amendment’s protection of the right of association and assembly is “an inseparable aspect of the ‘liberty’ “ that is protected by the due process clause of the 14th Amendment.
In so doing, the court expanded the scope of the rights of association. The NAACP had every reason to expect reprisals in Alabama had its donors been named. But so does the AFPF, which catalogues in its legal brief incidents of bomb threats, cyberattacks, violent protests, boycotts, and other harassment and reprisals via phone, email and social media.
During oral arguments, Justice Samuel A. Alito Jr. noted this week that the plaintiffs in the California case had also “been subjected to threats, harassment or economic reprisals in the past.”
It’s little wonder that conservative charities aren’t the only groups quaking at the prospect of having to surrender donors’ identities. But they also worry that naming donors will stifle charity.
California argued that donor confidentiality can be protected even after the donors’ names are disclosed to the state. Unfortunately, this hasn’t been the case. The state agency that had collected the AFPF’s donors’ information in the past bungled the task, resulting in some names being briefly published online. Innocent citizens participating in a legal activity were harassed as a consequence. The AFPF’s case seeks to make certain it never happens again.
Philanthropic reports consistently show that Americans are the most charitable people in the world. In the United States, charity has been key to civic engagement and countless strides forward; anonymity, in many cases, makes people more likely to give. This seems to be something the right and left agree on.
Why would we want to “fix” that?