Law & the Courts

The Democrats’ Threat to Donor Privacy

(Vadym Petrochenko/Getty Images)
Legislation that scraps donor-privacy protection is an affront to our fundamental freedoms.

Imagine a circumstance in the United States in which a $10 donation to someone’s legal-defense fund would prompt a television news crew to show up on your doorstep, with a reporter demanding to know why you gave to that cause. Or imagine a separate circumstance in the U.S., in 2021 no less, in which a $25 donation to that same legal-defense fund would result in your losing your job.

It sounds crazy — especially for a nation that prides itself on holding the principles of free speech, free expression, and freedom of association so sacrosanct that they make up the key tenets of the First Amendment. Yet here we are, in America, in 2021, and both of those scenarios happened in the month of April alone. Two men who gave, privately, to the defense fund of Kyle Rittenhouse had their donations publicly disclosed because the crowdfunding site that they had donated through was illegally hacked, and the hacked information was then released to the press.

Both incidents underscore the enduring importance of donor privacy — and why this Congress’s H.R. 1, and the companion Senate bill, the DISCLOSE Act of 2021, are deeply troubling. In the name of greater “transparency,” both bills would force 501c(4) organizations (which the Left calls “dark money” organizations because of their ability to keep the names of their donors private, while still voicing opinions on public-policy issues) to publicly disclose their donors’ names. It is something that the Left has been after for years, mainly because they know that such disclosure can lead to the very kind of bullying mentioned above.

Indeed, this is hardly a new cause, and something that the Supreme Court warned about in a unanimous decision more than 60 years ago. As Justice John Harlan wrote in NAACP v. Alabama (1958):

Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.

In places such as Alabama in the 1950s, groups like the NAACP were using their powers of organizing, their political and legal expertise, and their sheer determination to bring people together to remake the landscape before them. And the powerful in Alabama, to put it mildly, did not like this.

These power-mongers in Alabama had a variety of tools at their disposal, but they knew that if they could isolate the NAACP, cut off their support, and make it dangerous for the NAACP’s supporters to publicly voice that support, then the group and their allies could potentially be silenced. And so they set out on a legal campaign to do just that — and it centered on forcing the NAACP to name their supporters — i.e., their donors — to government officials in Alabama.

Much like the advocates of this year’s DISCLOSE Act, the power-mongers in Alabama used the pretext of transparency to advance their goals — an added measure that was ostensibly needed to protect the citizenry of the state.

But the U.S. Supreme Court knew better and saw through this ruse. Indeed, it well understood that the only reason the state of Alabama wanted these names was so that they could bring that state power to bear against those people to essentially bully them into silence, in violation of both the First and the 14th Amendment. As the quotation from Justice Harlan above says, such privacy is indispensable to the preservation of freedom of association.

Justice Harlan went on, writing:

[The NAACP] has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.

In other words, the NAACP knows — and we, the Court, know — that the real reason the state of Alabama wants this power is to intimidate the NAACP’s supporters into no longer supporting them.

One would think that after 63 years, this issue would be settled. But you’d be mistaken. In fact not only is it a continued battle, it is the same kind of progressives who would have rightly supported the NAACP in 1958 who are now calling for federal legislation to compel the prohibition on donor privacy for such activities. Following on the backlash against supporters of California’s Proposition 8, and Senator Dick Durbin’s congressional pursuit of the American Legislative Exchange Council and its supporters on things like the right to keep and bear arms, it has now become an article of faith among Democratic politicians to support scrapping donor-privacy protection.

The underlying reasons are still the same — only it’s now these progressive power-mongers who want to be able to harass the donors to conservative, libertarian, free-market, or otherwise limited-government organizations.

Interestingly enough, this was tried via the regulatory process during the Obama administration. In 2014, the Obama-controlled IRS (coming on the heels of a scandal in which politically motivated IRS bureaucrats were caught harassing groups engaged in political opposition to the Obama agenda) tried doing this through a rulemaking. Yet they quickly received hundreds of thousands of comments in opposition — in fact, more than all the previous rulemakings of the prior seven years combined — including from such organizations as the NAACP and the NAACP Voter Fund. Speaking raw truth to power, the NAACP Voter Fund went so far as to call the proposed rules “extremely disturbing.”

Likewise, the language of H.R. 1 and the DISCLOSE Act, especially the language regarding donor privacy, is also “extremely disturbing.” Don’t believe me? Take the ACLU’s word for it, which has also raised concerns about the constitutionality of the language.

This is why this month’s story about a left-leaning group breaching the security of a Christian-based “crowdfunding” website is both vital and telling. Once again, cloaking themselves in the name of “transparency,” this group revealed the identities of individuals who had donated, legally, to the defense fund of Kyle Rittenhouse, the teenager facing criminal charges for a shooting that occurred during the Kenosha, Wis., riots last year.

Unsurprisingly, these donors are now facing harassment for their personal and completely legal choice to offer financial support to Rittenhouse’s defense — including both the Utah-based paramedic who found a television reporter on his doorstep asking questions about a $10 donation, and a police officer from Norfolk, Va., who lost his job over a $25 donation. (Terrifyingly, when criticized about his choice to show up on the doorstep of a first responder with a camera crew over a perfectly legal low-dollar donation, the reporter’s response was to say that he does the same thing for accused criminals, going to their house to get their “side of the story.”)

This was possible only because the crowdfunding website was illegally hacked. If legislation like the DISCLOSE Act becomes law, such instances of harassment of donors to free-market and limited-government groups will no longer be isolated exceptions — they will become the norm.

This is where we are in America in 2021: If you financially support a political viewpoint that differs from the power structure’s prevailing narrative, you will be harassed and treated like a criminal. It was rebuked in Alabama in the 1950s and it ought to be rebuked again now.

Donor privacy is an essential element of policy activism — an essential element of the freedom of speech, the freedom of association, and the right to due process. Those advocating H.R. 1 and the DISCLOSE Act stand foursquare against the hard work that those fighting for freedom in the South undertook during the civil-rights era, and they fundamentally undermine their sacrosanct legacy.

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