The most significant litigation to protect donor privacy comes from a string of cases challenging the California Attorney General’s office requirement that nonprofits include a full and unredacted Schedule B with their annual state registration filings. This new policy was introduced in 2010 under former Attorney General Kamala Harris, and has been continued by her successor, Xavier Becerra. Several lawsuits have been filed challenging this new policy, including those from 501(c)3 charitable organizations like the Americans for Prosperity Foundation, the Thomas More Law Center, and the Center for Competitive Politics (now the Institute for Free Speech). In all these cases, nonprofit organizations challenged the California attorney general’s authority to require donor information, citing the U.S. Supreme Court’s 1958 ruling that Alabama could not compel the NAACP to release its membership list and later decisions to include donor lists as well. If the California attorney general’s policy is allowed to stand, it will mean the government must only assert a plausible reason for obtaining donor lists—effectively eviscerating donors’ right to privacy. 

The United States Supreme Court currently is considering whether to hear Americans for Prosperity Foundation v. Becerra, a case challenging the California attorney general’s demand for that group’s donor list. The Americans for Prosperity Foundation won at the district court level after Judge Manuel Real agreed that the documented history of violent threats against the group’s members, donors, and leadership meant it should not be forced to turn over its list. That decision was overturned by the U.S. Court of Appeals for the Ninth Circuit. The U.S. Supreme Court requested in late February 2020 that the U.S. Solicitor General “file a brief in this case expressing the views of the United States,” suggesting the Court is giving serious consideration to hearing it. Normally, the decision whether to hear oral arguments would already have been made, but the COVID-19 pandemic has postponed the Court’s schedule. If the Court accepts the case, it likely will not be heard until Fall 2020 at the earliest, and possibly not until Spring 2021. Should the Court eventually rule in favor of charitable donor privacy, it could effectively shut down many of the current attacks on a donor’s right to give anonymously.

Another major donor-privacy case was resolved in September 2019 when U.S. District Judge Denise Cote struck down portions of a New York state law passed in 2016 that required 501(c)4 organizations to disclose all their donors when they spend over $10,000 in a calendar year on communications about the position of any elected official on potential or pending legislation, and also required charitable 501(c)3 organizations to reveal donors who gave to 501(c)4 “social welfare” arms that engaged in lobbying. Citizens Union of the City of New York, a progressive advocacy organization, challenged the provisions as a violation of its freedom of speech and freedom of association, noting that it appeared to be nothing more than a political response to the Citizens United decision. In its ruling to invalidate the disclosure mandates, the District Court concluded that the state had no authority to “regulate issue advocacy untethered to any electioneering communication” and that the connection between donors to 501(c)3 organizations and lobbying communications by 501(c)4 organizations was “too attenuated to effectively advance any informational interest” the state might have.

Most recently, the Rio Grande Foundation (a free-market think tank in New Mexico, organized as a 501(c)3 charity) filed a lawsuit in December 2019 challenging a law that would force it and other nonprofits to disclose donors if they engage in issue advocacy mentioning anyone who is a candidate for office. As noted in the complaint, the Rio Grande Foundation wants to disseminate a legislator scorecard to thousands of New Mexico voters in advance of the November 2020 election. These mailings will be made within 60 days of the election and will include names and pictures of incumbent legislators, along with information on their voting records while in office. At the time of this report, no further actions had occurred in this case.