Donor privacy is essential to a thriving charitable sector. It empowers Americans to support causes they value without fear of harassment, exposure or retaliation for their beliefs.
That is why Philanthropy Roundtable—joined by People United for Privacy Foundation, Manhattan Institute and Kansas Justice Institute—recently filed an amicus brief supporting the Buckeye Institute’s challenge of an IRS rule requiring donor disclosure in Buckeye v. IRS. This case is now on interlocutory appeal from the U.S. District Court for the Southern District of Ohio before the U.S. Court of Appeals for the Sixth Circuit.
In this brief, we argue that requiring organizations to share lists of their donors is “undeniably dangerous” and violates the First Amendment by creating a chilling effect on free association. We also say that the government must show that compelled disclosure is narrowly tailored to a sufficiently important government interest.
The importance of this standard, known as “exacting scrutiny,” was a difficult lesson borne out of the Civil Rights Era when Alabama demanded the NAACP’s membership list as part of a strategy chill their ability to operate in the state and guard their segregationist policies. The necessity of exacting scrutiny in Buckeye v. IRS was recognized by the district court, and the brief asks the appeals court to affirm that finding.
“This case matters because it speaks to both principle and practice. America’s vibrant civil society is a direct result of our national commitment to First Amendment liberties, including donor privacy. Reaffirming that right to private association is essential to a culture where donors can give freely without fear of retaliation,” said Allen Dickerson, one of the nation’s leading First Amendment litigators, former Federal Election Commission chairman, and partner at BakerHostetler. He authored this amicus brief with Caleb Acker, associate at BakerHostetler and Ilya Shapiro, director of constitutional studies at Manhattan Institute.
Background
This case began in 2013 after an IRS audit of the Buckeye Institute after the organization publicly opposing the Obama administration’s proposed Medicaid expansion. The timing of the audit raised concerns among supporters that it could be retaliatory.
Donors also feared that if their personal information were ever made public—whether inadvertently or through a breach—they could face politically motivated scrutiny. Many reduced or halted their giving in response, chilling Buckeye’s ability to fulfill its mission.
The question before the Sixth Circuit is clear and consequential: Does the IRS’s donor-disclosure mandate unlawfully burden nonprofits’ and donors’ First Amendment right to free association?
The Supreme Court addressed a similar question in the 2021 case Americans for Prosperity Foundation v. Bonta, which Philanthropy Roundtable filed two amicus briefs on. They struck down California’s requirement for charities to disclose their major donors, applying exacting scrutiny when they held that broad donor-disclosure requirements violate the First Amendment when they are not narrowly tailored and when less intrusive tools are available.
The interlocutory appeal provides the Sixth Circuit with an opportunity to clarify the constitutional standard governing compelled donor disclosure before the case proceeds further. Filing our amicus brief now ensures the court has the proper First Amendment framework as it evaluates the IRS’s Schedule B requirement that nonprofits disclose the names and addresses of major donors.
Our amicus brief develops three core points:
- The IRS’s Schedule B requirement fails exacting scrutiny.
It is not narrowly tailored, and the IRS has not shown that disclosure of donor identities is essential to its compliance efforts. Furthermore, the agency already has effective, less intrusive investigative and enforcement tools.
- Compelled disclosure imposes real-world harms.
Buckeye’s donors reduced giving after the audit, underscoring the chilling effects that occur when individuals fear exposure or retaliation for their charitable associations.
- The First Amendment protects private association.
Donor privacy is a constitutional safeguard that enables Americans to support diverse causes without public pressure, harassment or fear of reprisal.
Donor privacy protects more than individual contributors. It safeguards nonprofits and the communities they serve. Giving thrives where trust exists—where donors know their generosity will be met with discretion, not unnecessary scrutiny. Buckeye v. IRS is a reminder that being free to give also means being free to give privately, confidently and consistent with one’s values.
