On Thursday, July 20, the U.S. Senate Judiciary Committee assembled for an executive business meeting to discuss S. 359, Sen. Sheldon Whitehouse’s (D-RI) “Supreme Court Ethics, Recusal and Transparency Act of 2023.” While the bill is largely presented as an attempt to make the Supreme Court more transparent, a particularly dangerous provision would require nonprofits that file a federal amicus brief to disclose their major donors, encroaching upon the First Amendment rights of nonprofit organizations and their donors.
This is not Whitehouse’s first assault on free speech or donor privacy. A frequent critic of what he misleadingly calls “dark money,” the Rhode Island senator backed a bill in the last Congress that would have restricted donor privacy. Similarly, he has called for the IRS to put more regulations on nonprofits, requiring charitable organizations to expose their largest contributors – thus, chilling the ability of donors to give where and how they choose.
Despite a shift in tactics, his goal remains the same. Whitehouse has veiled his problematic position on donor disclosure through this so-called ethics act. But he and his colleagues who support the bill are still threatening the First Amendment right to give anonymously.
As a reminder, there are many valid reasons a donor might value privacy in his or her giving. Jack Salmon, the Roundtable’s director of policy research, has detailed some of them:
In modern society, the choice to remain anonymous as a donor is driven by various factors. Some individuals exercise modesty, while others are guided by religious beliefs that encourage humility in their acts of giving. Additionally, many people wish to avoid uninvited solicitations, preserving their autonomy in supporting the causes that resonate with them. In our highly polarized society, another crucial reason for donor privacy is the fear of backlash and harassment due to associations with certain organizations or causes.
Moreover, donor privacy stimulates the philanthropic sector. The government ought not influence the flow of charitable dollars, especially by infringing upon a core tenet of the First Amendment. S. 359 would chill giving by forcing disclosure of major donors to nonprofits that may seek to weigh in on issues before the Supreme Court.
To illustrate the potential impact of this provision, one only has to look at the roughly 300 organizations that filed amicus briefs two years ago when the Supreme Court took up the Americans for Prosperity Foundation v. Bonta case. Groups from Philanthropy Roundtable to the American Civil Liberties Union and the NAACP Legal Defense and Education Fund expressed concerns with forced donor disclosure regimes. Arguably, this bill would silence the free and important speech of these groups and others – groups that deserve the right to tell the Supreme Court how they feel about important issues of the day.
Philanthropy Roundtable actively supports donor privacy and the integrity of our nation’s institutions. We do this by partnering with organizations and donors who prioritize safeguarding individual freedoms and upholding America’s founding principles. We also believe America’s thriving charitable sector is essential to a functioning, vibrant society. As the proposed donor disclosure rules in S. 359 would hinder the work of nonprofits nationwide, we urge opposition to this legislation.