A conservative political group asked a federal appeals court on Monday to strike down a Delaware law requiring the disclosure of donors for groups that campaign in the state, hoping it becomes the latest donor disclosure and campaign finance law to be struck down as a violation of the First Amendment.
A three-judge panel on the U.S. Court of Appeals for the 3rd Circuit heard arguments in a case brought by the Americans for Prosperity Foundation against Delaware officials over a law requiring nonprofit groups that spend more than $500 in campaigning ahead of an election to disclose all donors who contributed at least $100 in the past four years. AFPF urged a federal district court to halt enforcement of the law, arguing it violates the First Amendment, but the group was denied the injunction it sought.
“Two federal circuits have already noticed that the Supreme Court, in recent cases, has strengthened the First Amendment’s protections for donor privacy,” Allen Dickerson, a lawyer for AFPF, argued to the panel. “This court should join the 1st and 10th Circuits in requiring governments, when they request donor information, to show that their demand is narrowly tailored to an appropriate interest. And under that standard, Delaware has no prospect of success in this case.”
The three-judge panel appeared skeptical of AFPF’s request for a preliminary injunction, asking why the law, which has been effective since 2012, must be immediately halted before full arguments on its constitutionality. Dickerson stressed that allowing the law to remain enforceable puts an “unconstitutional condition” on their right to speak in elections, which he argued should be enough to get an injunction against the law.
He also cited the Supreme Court’s 2021 ruling in Americans for Prosperity Foundation v. Bonta, which found that governments must narrowly tailor laws that seek to disclose the donors of nonprofit groups, and the 2026 ruling in First Choice Women’s Resource Centers, Inc. v. Platkin, which dealt with an attempt to secure broad disclosure of donors for a crisis pregnancy center, as examples of the Supreme Court siding with their free speech stance. One of the judges questioned why AFPF did not challenge Delaware law after the 2021 Supreme Court ruling, and Dickerson said the group filed the lawsuit when it wanted to campaign in Delaware after previously not doing so.
When the panel’s questioning shifted to Delaware officials, the judges appeared concerned over the broad scope of the donor disclosure required under the law.
“Tell us how your statute is narrow, because it doesn’t seem to be. It seems to be very broad. You’re casting a wide net,” one of the judges said, expressing concern that donors from across the country who may not have specifically set their donations for a campaign in Delaware would have their names disclosed under this law.
The three-judge panel included U.S. Circuit Judges Thomas Hardiman, an appointee of former President George W. Bush; Stephanos Bibas, an appointee of President Donald Trump; and Marjorie Rendell, an appointee of former President Bill Clinton. The appeals court did not indicate how it would rule in the case or when a ruling would be issued.
The Supreme Court in recent years has handed down rulings in both campaign finance law cases and donor disclosure law cases, quashing restrictions as violations of the First Amendment. In the high court’s June ruling in NRSC v. FEC, the Supreme Court struck down coordinated spending limits between political parties and candidates, while in the high court’s April ruling in First Choice, Justice Neil Gorsuch reaffirmed that heightened scrutiny is needed to get donor lists.
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“An official demand for private donor information is enough to discourage reasonable individuals from associating with a group,” Gorsuch’s opinion for the unanimous Supreme Court said. “It is enough to discourage groups from expressing dissident views. A government that chooses to make private donor information public may make the damage worse.”
The lawsuit by AFPF comes months before various hotly contested midterm elections across the country in November, which will determine control of state legislatures, governors’ mansions, and Congress.