California Forum

Another View: Demand for nonprofits’ donor lists violates First Amendment

California State Attorney General Kamala Harris is seeking the donor lists of nonprofits.
California State Attorney General Kamala Harris is seeking the donor lists of nonprofits. The Associated Press

A state may demand private membership and donor lists from charities and other nonprofit organizations – without even explaining why. That’s the position The Sacramento Bee defended in its May 23 editorial, “Nonprofits take privacy claims ever further.”

By claiming the right to the donor lists of all 501(c)(3) organizations that seek public support from Californians, Attorney General Kamala Harris can build a government database of donors to nearly every charity and nonpolitical nonprofit in the country; from the Salvation Army to the Heritage Foundation and the Sierra Club Foundation, without explaining how this will help her regulate charitable solicitation. Such a wide sweeping demand, unauthorized by California law, infringes on our First Amendment rights.

Under the Constitution, we do not permit governments to obtain our library reading lists, our telephone contacts, newspaper subscriber lists, the contents of our communications, or which groups we financially support, unless the government provides a compelling reason. Would a newspaper like The Bee simply have us take officials at their word that they need our private information?

The recent demand is not a “long-standing law” as claimed in the editorial. California began selectively asking groups for donor lists around 2010. The Center for Competitive Politics, registered since 2008, received its first demand letter in February 2014. Other groups report similar experiences.

The editorial frets that “the super-rich will have an outsized voice in the 2016 election.” But the Center for Competitive Politics, the plaintiff in the case discussed, is organized under section 501(c)(3) of the federal tax law. As such, it is prohibited from intervening in any campaign for office. The center’s case has nothing to do with campaign finance law.

The Supreme Court has – for nearly 60 years – protected nonprofits from being forced to hand the private information of their supporters over to state governments. In the landmark civil rights era case, NAACP v. Alabama, the court affirmed that the constitutional right of all Americans “to pursue their lawful private interests privately and to associate freely with others” free from “state scrutiny” is a long-standing and essential liberty.

If we are going to say that there is no privacy in our associations from curious governments, we ought to at least plainly consider what that means. Reversal of associational freedom would not merely apply to Harris, but to her successors, and to officials of every ideological persuasion in every state in the union.

David Keating is the president of the Center for Competitive Politics, a Virginia-based nonprofit.