by Tyler Arnold
An Ohio-based free market nonprofit has filed an amicus brief that called on the U.S. Supreme Court to protect the anonymity of donors to nonprofit organizations as a First Amendment right.
The Buckeye Institute’s amicus filing, which is a legal document written to provide support for one side of the argument in a legal case, was filed with the Supreme Court in the lawsuit Americans for Prosperity Foundation (AFP) v. Becerra.
The lawsuit by AFP, a nonprofit libertarian group, was filed against California Attorney General Xavier Becerra over a state policy that requires charities and tax-exempt organizations to provide the government with names and addresses of significant donors.
“California’s attorney general claims this case is about ‘investigative efficiency’ in its oversight of charities and other nonprofit groups,” Robert Alt, president of The Buckeye Institute, said in a news release.
“In fact, it is an alarming violation of the First Amendment right of free association and would have a chilling effect on free speech,” Alt said. “The Buckeye Institute calls on the U.S. Supreme Court to protect the right to free association as it most notably did in the 1958 landmark case, NAACP v. Alabama.”
According to the brief, courts have consistently held that forced disclosures can threaten freedom of association since the ruling in the NAACP case. In that case, the court ruled that government agencies must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest” if it is to force the entity to disclose the information.
The brief argues that freedom of association is threatened because of potential retaliation and additional scrutiny from the government if certain officials disagree with the mission of the non-profit. AFP and its donors could be a potential target of retaliation because the non-profit often takes stances against government action, the brief stated.
This is not just a hypothetical, the brief argued, because The Buckeye Institute fell victim to government retaliation in 2013.
“The Buckeye Institute has experienced this chilling effect firsthand,” the brief states. “In 2013, shortly after the Ohio General Assembly relied upon Buckeye’s arguments in rejecting Medicaid expansion, Buckeye learned that it would be audited by the Cincinnati office of the IRS. The audit notification came on the heels of widespread reporting and congressional investigations of wrongdoing by that IRS office.”
“Against that notorious backdrop, Buckeye’s donors feared that this audit was politically motivated retaliation against Buckeye,” the brief continued. “These donors expressed concern that, if their names appeared on Buckeye’s Schedule B or other Buckeye records subject to disclosure in the audit, they too would be subjected to retaliatory audits. Numerous individuals therefore opted to make smaller, anonymous, cash donations – foregoing a donation receipt – in order to avoid any potential retribution based on their contributions.”
According to the news release, most states do not require the disclosure of these names, yet they are still able to provide oversight of charities and other non-profit organizations. .
Becerra’s office did not respond to a request for comment from The Center Square.
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Tyler Arnold reports on Virginia and Ohio for The Center Square. He previously worked for the Cause of Action Institute and has been published in Business Insider, USA TODAY College, National Review Online and the Washington Free Beacon.