The Supreme Court’s Chance to Rule for Donor Privacy

The Supreme Court’s Chance to Rule for Donor Privacy

Mar 03, 2021 Elizabeth McGuigan

This week, The Philanthropy Roundtable filed an amicus brief with the U.S. Supreme Court in the case Americans for Prosperity Foundation v. Becerra. Drafted by the legal team at firm Morgan, Lewis & Bockius LLP, the brief supports Americans for Prosperity Foundation and the Thomas More Law Center in their consolidated fight against California’s unconstitutional demand for nonprofit donor names, addresses and contribution amounts.   

The Roundtable has closely followed this case through the court system following the Americans for Prosperity Foundation’s complaint against California’s then-state Attorney General Kamala Harris for demanding nonprofit organizations file their confidential IRS Schedule B forms, including the names of major donors, with the state. 

The Roundtable last weighed in on the case in September of 2019 with an amicus brief filed in support of AFP et al.’s petition for writs of certiorari. In this brief, which has been cited by Americans for Prosperity Foundation in its February 22, 2021 brief, The Philanthropy Roundtable outlined the long-standing importance of donor privacy as an indispensable feature of American philanthropy.

The lack of confidentiality, and the resulting threat to the safety and privacy of donors is the crux of the complaint.  Due to both intentional posting of some forms, and to website vulnerabilities exposing about 350,000 documents, Americans for Prosperity Foundation donors have faced significant harassment, including death threats against themselves, their children and grandchildren. With so much at stake for nonprofit organizations and their donors, The Philanthropy Roundtable supports the call for the Supreme Court to overturn the Ninth Circuit Court’s Ruling in favor of California’s unconstitutional requirement.

As outlined in The Philanthropy Roundtable’s brief, donor privacy is crucial. Many donors will choose not to give if they cannot keep their donations confidential. This desire for privacy may stem from religious conviction. The Americans for Prosperity Foundation’s petitioner’s brief quotes The Philanthropy Roundtable’s previous brief on the long-standing religious tradition of anonymous giving. Donors may also wish to remain private out in order to avoid unwanted solicitations or concerns that their donation may spur harassment and retaliation. Forcing such disclosure against the wishes of donor will lead to less giving and will undermine the ability of charitable organizations to fulfill their missions.

The Supreme Court has the opportunity to confirm once again the right of Americans to choose how and where to spend their charitable dollars. Donor privacy is essential to a vibrant civil society, and unwarranted state incursions into private charitable giving will chill the exercise of First Amendment freedoms which ensure that donors may give to any philanthropic causes without fear of harassment and retaliation.