It’s a new year, and new legislatures around the country are being sworn in. There are a lot of big issues to be on the lookout for – from reining in the administrative state, to economic policy, and education.
However, a lesser-known policy fight is finding its way into statehouses around the country – donor disclosure. In its worst form, disclosure compels organizations (including nonprofit groups) to disclose the identities of those who donate to them.
These misguided policies are flawed. They infringe upon Americans’ First Amendment right to association and chill the free expression of speech.
The right to speech privacy is paramount. It creates conditions for a vibrant marketplace of ideas where every person can be heard regardless of the popularity of their ideas. It fuels a healthy social sector that relies on the charity of everyday Americans who give to social welfare organizations. It makes our society stronger.
But the attempt to silence speech isn’t a new issue. Since the founding of our country, politicos have been trying to kill dissent by chilling speech.
The movement to marginalize unpopular beliefs in America officially began with the passage of the Alien and Sedition Acts in 1798. The Federalist-led administration under President John Adams advocated for the law to put those who disagreed with the Federalists in jail.
And in 1860, the Mayor of Boston led a mob that included members of law enforcement to shut down Frederick Douglass from sharing his views against slavery.
Nearly 100 years later, in the 1958 landmark case NAACP vs. Alabama, the state of Alabama tried to force the National Association for the Advancement of Colored People (NAACP) to release the names of its members; the state argued they needed to investigate unlawful activities by the members, and the NAACP argued that releasing the names of its members would expose them to harassment or worse.
Fortunately, the Court ruled in favor of free association and against the state’s ability to subpoena member lists to intimidate members.
That case set up the basis for the successful protection of privacy rights in Americans for Prosperity Foundation vs. Bonta, a case again of a state wanting to petition members – which had the effect, intended or not, of eliciting intimidation upon AFPF members.
Again, the Court upheld Americans’ First Amendment rights in its decision. (Fun fact: Nearly 300 groups, representing a diversity of perspectives across a range of issues, from the ACLU and the NAACP to the Institute for Justice, joined alongside AFPF in AFPF vs. Bonta to protect Americans’ First Amendment rights.)
Or take a look at the most recent case in 2024 of NRA vs. Vullo, where a public official of the state of New York was coercing regulated entities to stop doing business with the National Rifle Association (NRA).
Once again, the Court protected the First Amendment, deciding that government officials cannot pressure organizations to terminate business relationships when doing so violates the First Amendment rights of the third party. Notable about the New York case is that it was a 9-0 ruling in favor of the NRA – and the opinion was written by Justice Sotomayor.
Supporters of donor disclosure argue that disclosure of personal member information for organizations that engage in political speech will allow transparency or accountability. But our Founders envisioned a nation where its citizens are protected by equal rights and where the government answers to the People, not the other way around.
Individuals should be free to advocate for what they believe without fear of retaliation – through word, action, or financial donations. Disclosure laws infringe upon free speech rights, when fear of reprisal leads Americans to stifle their speech.
We need to advocate the protection of individual privacy.
Even with protections in place to safeguard an individual’s information, we have seen rogue IRS agents release the tax records of private citizens and target center-right organizations. Imagine what the world would look like for American citizens to be targeted for their political views.
Privacy is growing ever scarcer in today’s world. It must be a priority to protect American citizens against those who would deliberately violate their privacy because of what they support or believe.
Comically, I’m reminded of the Seinfeld episode when Kramer refuses to wear the AIDS ribbon while walking to support the cause – causing two people to physically attack him because they felt he was being disrespectful. Imagine now being harassed because someone else feels that you aren’t doing enough or that you are supporting the “wrong side” of an issue. Donor disclosure will only lead to a China-esque “social score” rather than improving our society.
At AFP, we are taking this issue head on. It is imperative we don’t allow a threat to personal privacy to be threatened for any reason.
Some states have taken a proactive approach in passing the Personal Protection Privacy Act (PPPA) to assure their citizens that the government has no business asking nonprofits to disclose their membership lists.
As 2025 progresses, we hope to see more states pass these protections. Let’s put intimidation to bed in the coming years and protect and respect privacy of individuals!
— Daryn Iwicki
Regional Vice President, State Operations
Americans for Prosperity
A note from Casey: With many state legislatures returning to session, the cadence of this newsletter may change. AFP is fully focused on monitoring key developments and ensuring we’re protecting the rights of all Americans. But we remain committed to keeping you informed and will continue to share important updates!
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