Judge Amy Coney Barrett on Donor Privacy

Judge Amy Coney Barrett on Donor Privacy

Oct 26, 2020 Patrice Onwuka

Judge Amy Coney Barrett is on her way to being confirmed to the U.S. Supreme Court, only the fifth woman to join the highest court in the land.

Much has been speculated about how she would rule on cases involving health care and abortion rights. The philanthropic world may also be curious about how she might rule on issues of donor privacy, a topic that came up during her Senate confirmation hearing.

During Judge Barrett’s time on the Seventh Circuit Court of Appeals, she only provided opinions in a handful of free-speech cases that some groups such as the Institute for Free Speech suggest signal her willingness to expand free-speech rights for individuals in certain circumstances. Private giving to organizations and causes is protected under the First Amendment freedom of speech and assembly. The cases Judge Barrett heard dealt with different circumstances and may not provide much insight. More compelling, though, is her consistent pledge and adherence to precedent.

During her confirmation hearing, she reaffirmed her allegiance to precedent in her opening statement, noting that "courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people." She has a track record of applying well-established precedent to cases.

What is the well-established precedent in the case of donor privacy? The Supreme Court has historically upheld the right of donors to remain anonymous and the right of individuals to join together in groups to amplify their messages, even if they are controversial.

In the seminal case NAACP v. Alabama (1958), the Court unanimously ruled in favor of the National Association for the Advancement of Colored People (NAACP). The state of Alabama sought to compel this organization to disclose the names and addresses of supporters or cease doing business in the state. The NAACP feared that doing so would open its members up to harassment, threats, and assault by those who opposed civil rights for black people.

The Court sided with the NAACP, confirming that the “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause.” The Court also acknowledged the NAACP’s fears about retaliation:

“... on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, the threat of physical coercion, and other manifestations of public hostility.”

Although the state might have had a legitimate reason to regulate activities by organizations like the NAACP, the Court viewed Alabama’s disclosure law as too broad and infringing on important constitutional rights. Since then, there have been increased calls for greater donor disclosure at the federal level. Meanwhile, states have introduced legislation forcing charitable organizations to disclose who funds them.

On the bench, Judge Barrett very well might get to weigh in on the topic. Americans for Prosperity Foundation (AFPF) has challenged California’s disclosure law, which requires charitable and other nonprofit organizations to include with their state registrations the IRS form known as Schedule B, listing the names and addresses of top donors as well as the size of their gifts. AFPF fears that this disclosure would have “an irreparable chilling effect” and open its supporters up to threats, harassment, and violence if their affiliation is made public. The Philanthropy Roundtable filed an amicus brief in support of AFPF’s challenge to California’s donor disclosure law on the grounds that it violates donors’ constitutional rights and undermines philanthropic freedom.

We don’t know how Judge Barrett would rule, but NAACP v. Alabama has set a powerful precedent for the Court to uphold. And Judge Barrett has made her views on respecting and upholding precedent clear. In this hyper-partisan political environment, retaliation against donors who support controversial or unpopular causes is a real threat and one the Court should guard against. Donor privacy is not a partisan issue; it’s an issue of freedom and one that we hope a Justice Barrett would uphold.