While in her role as attorney general of California, Kamala Harris did a lot of unsettling things — so many that the public has memory-holed a few of them. One of those was the time her office mandated charities turn over a list of their donors who’d contributed $5,000 or more to the state.
It was a blatant privacy violation that quickly turned into a matter of free speech. Between 2012 and 2021, over 1,700 Schedule B forms were inadvertently posted on a public website by the state, exposing donor information. Most of those leaks just “happened to” contain donors of conservative organizations in the state. Those leaks then led to harassment and threats of violence targeted at the funders of organizations such as Americans for Prosperity and the Thomas More Law Center.
The scandal resulted in a lawsuit, Americans for Prosperity Foundation v. Bonta, in which multiple plaintiffs argued that the disclosure requirement violated the First Amendment by deterring individuals from contributing to charitable organizations due to fear of public exposure and potential harassment. The U.S. Supreme Court ultimately agreed, ruling 6-3 that California’s donor disclosure requirement was unconstitutional, that the law burdened the First Amendment rights of donors, and that it was not narrowly tailored to serve a compelling government interest.
But that hasn’t stopped other states from trying to implement the same law. And unfortunately, the model legislation lists both Democrats and short-sighted Republicans among its ranks of supporters. Arizona passed a similar bill in 2022 (currently tied up in the courts), while states such as Hawaii and Arkansas have passed donor disclosure requirements around campaigns.
The ability to speak freely without fear of government persecution is a natural human right, and never is the need to guard that right more imperative than when it comes to political speech.
Not only does the government have an vested interest in squelching free speech, however, but many of our fellow citizens are also desperate to shut down dissent and silence their opposition on these matters. That means those who pursue activism through their words, time, and money are often targeted, harassed, and threatened by others who wish to shut them up. That is why anonymity is a tradition that dates all the way back to our Founding Fathers who used pen names to advance ideas that were too dangerous to say in public at the time.
For all of these reasons, the U.S. Supreme Court rightfully found in the Citizens United v. Federal Election Commission case that spending money to advance ideas is a form of protected free speech. That principle was reinforced in the Bonta decision, where the court affirmed that privacy in association is also protected under the First Amendment. Together, these rulings make clear that those who use their money to express their views are entitled to privacy protections. Privacy is for the people; transparency is for the government.
Due to the growing threat against these essential rights, some states are choosing to go on the offense — working to pass laws that protect donor privacy in state legislatures before these inevitable attacks rear their ugly heads. It’s a movement that should bring a large number of people together.
Donor disclosure laws don’t just affect politically active charities; they also pertain to churches, many of whom have a long history of their own oppression when it comes to their beliefs and free speech. It pertains to donors to LGBT groups who’ve faced marginalization and hate. Clearly donors to causes such as gun rights could anticipate angry mobs coming after their information. Both pro-life and pro-choice advocates have long experienced persecution and even violence. Civil rights organizations such as the ACLU and the NAACP will easily recall the Jim Crow era when their donors faced violence and being blacklisted (resulting in another important case, NAACP v. Alabama). Animal rights organizations, environmental activists, the list goes on and on. To safeguard our own rights, we have to defend the rights of our ideological opponents.
And while leftists love to cage these actions as merely “eating the rich” or “fighting the oligarchs,” the truth is these laws apply to all donors, big and small. And smaller donors have far less ability to protect themselves from blowback and violence should it come to that.
Since 2022 alone, seven states have passed laws strengthening their protections for donor privacy and free speech (Indiana, Kentucky, Georgia, Virginia, Kansas, New Hampshire, and West Virginia). Good ideas tend to catch fire, so it’s no surprise that both Nevada and North Carolina seem poised to join their ranks.
Nevada, which previously passed the legislation but saw a governor veto it, advanced the legislation through both chambers again this session. That means it is heading back to Gov. Joe Lombardo’s (R-NV) desk.
Lombardo has done a lot to stand up for privacy protections and free speech in other areas in the intervening time period. In 2024, he signed legislation that blocked unions from obtaining sensitive personal information via school districts. Another 2023 bill blocked GPS tracking devices from being placed in vehicles without the owners’ consent. And legislators seem to have worked hard to address his concerns with their previous bill, so there’s good reason to think the latest version will be signed into law by him this time around.
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Similarly, North Carolina has been advancing its own version of this legislation. Its bill passed out of the Senate with bipartisan support earlier this year and is headed to the House this summer.
Going on the offense is the right strategy here. We know what the end goal is for these donor disclosure laws, and they must be stopped.
Hannah Cox (@HannahDCox) is the president and co-founder of BASEDPolitics and a consultant for Americans for Prosperity.