Law & Principles
Donor privacy protections gain bipartisan support
March 3, 2020
The personal information of donors to nonprofit organizations would be protected under legislation that passed without opposition in the Oklahoma Senate.
Senate Bill 1491, by Sen. Julie Daniels, creates the “Personal Privacy Protection Act.” The legislation would prohibit a state agency from compelling “the release of personal affiliation information” for those who donate to various entities, including issue-advocacy groups. The bill does not change state law requiring public reporting of donors to political candidates.
“This bill proposes to prevent the forced disclosure of personal giving history, which has a chilling effect on freedom of speech and freedom of association, and it has become a problem across the United States for public agencies to try to get hold of or disclose this information,” said Daniels, R-Bartlesville. “This bill will not allow public agencies to require that you give any personal affiliation information to them.”
Under the bill, agencies would also be prevented from requiring that contractors report any organizations a contractor financially supports as a condition of employment.
If an agency or government employee illegally discloses nonprofit donor information, the bill provides for a $2,500 fine to be levied for every person whose personal information is illegally released, along with other potential fines and penalties.
Donor privacy rights have long been enshrined by the U.S. Supreme Court, but that has not stopped politicians’ efforts to publicly identify non-profit donors and potentially expose them to retaliation.
The most infamous example in which government officials sought to publicly identify nonprofit donors occurred in the 1950s when the state of Alabama tried to compel the National Association for the Advancement of Colored People (NAACP) to make public its membership lists. The NAACP was actively advocating for the civil rights of blacks at that time.
In 1959, the U.S. Supreme Court sided with the NAACP and declared the state could not compel donor or membership disclosure, ruling, “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
In 2017, Sean Parnell, vice president for public policy at The Philanthropy Roundtable, wrote of the importance of donor privacy and noted that a wide range of groups have been targeted. For example, in 2014 Parnell noted that anonymous donors contributed nearly $580,000 to preserve the Peachtree-Pine homeless shelter in Atlanta, Georgia, at a time when city officials were trying to seize the facility’s land via eminent domain. When the shelter’s director was asked why the donors wanted to remain anonymous, he replied, “Anytime a donor appears and is public with us, that donor gets attacked.”
“The desire of Peachtree-Pine’s benefactors to remain anonymous is illustrative not only of the longstanding freedom for philanthropists to choose whether or not to keep their giving private, but also of the need today to preserve and even expand vital protections for anonymous charitable giving,” Parnell wrote. “The freedom to keep philanthropic contributions anonymous isn’t just about the religious, cultural, and practical reasons that motivate many donors’ desire to keep their giving private. The rights to associate privately and contribute to organizations anonymously are also intrinsic to effective exercise of the First Amendment.”
At the state level, politicians across the country have tried to seize donor information from issue-advocacy groups. In 2006, then-New York Attorney General Eric Schneiderman demanded that charities submit the names, addresses, and total contributions of major donors. In 2010 Kamala Harris, who was then California’s attorney general and today serves in the U.S. Senate, demanded the same information from charities and nonprofits in that state.
Americans for Prosperity (AFP) was among the organizations that opposed those efforts in court. AFP’s mission statement says it works to “take an active role in building a culture of mutual benefit, where people succeed by helping one another.” The resulting court proceedings highlighted the extreme threats donors can face in today’s hyper partisan political environment.
In a 2016 ruling, U.S. District Court Judge Manuel Real wrote that the court had “heard ample evidence establishing that AFP, its employees, supporters and donors face public threats, harassment, intimidation, and retaliation once their support for and affiliation with the organization becomes publicly known.”
Among other things, the judge noted that a technology contractor working inside AFP headquarters had posted online that he “could easily walk into” an AFP official’s office “and slit his throat.” That same contractor was found taking pictures of license places on AFP employees’ cars. Real also noted evidence was presented showing death threats had been made against AFP officials’ families, “including their grandchildren.”
Real noted that the state officials demanding non-profit donor disclosure argued that “such abuses are not as violent or pervasive as those encountered” by the NAACP in Alabama during the civil-rights era, but Real added that “this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”
Similarly, Parnell noted a later-repealed state referendum in South Dakota “could have forced charities to reveal their donors for such acts as hosting a forum on agricultural issues where elected officials are invited speakers, or notifying supporters that an elected official has introduced legislation relevant to their interests.”
The Institute for Free Speech has noted, “Across the country, those who wish to silence dissent are seeking to force nonprofit groups to reveal the private information—names, home addresses, occupations, and employers—of their supporters to the government. This strategy, which is being employed in states across the ideological spectrum, and by officials of both parties, is intended to dry up organizations’ resources.”
As a result, donor privacy protections have gained support from groups on both the political left and right. In 2017, the New York Civil Liberties Union (NYCLU) and American Civil Liberties Union (ACLU) filed a lawsuit challenging a New York disclosure law as a violation of First Amendment rights.
In a release, the NYCLU and ACLU said the New York law established “a sweeping, complex and vague regulatory scheme for organizations that conduct a wide range of speech on the policy issues of the day that have nothing to do with electoral politics.”
“All nonprofits should be able to speak out on the urgent issues of the day without a fear of being subject to disclosure rules that go beyond the bounds of what the Constitution allows,” said ACLU general counsel Terence Dougherty.
SB 1491 passed the Oklahoma Senate on a bipartisan 45-0 vote.