California as Big Brother? The Supreme Court Isn't Having It.

April 27, 2021

California has decided to be Big Brother to anyone who wants to... donate to a charity? The state is requiring charities and nonprofits operating within California to share the names and addresses of their largest donors with the attorney general's office. Conservative groups have fought back, stating that this policy violates the First Amendment because it would discourage donors' freedom of association and speech.

This donor disclosure requirement originated with Vice President Kamala Harris, back when she was California's attorney general. The policy wasn't an act of the California legislature -- it was a unilateral action by Harris. Her successors as state attorney general, Xavier Becerra (now serving as secretary of the U.S. Department of Health and Human Services) and Rob Bonta, continued Harris' policy.

Thomas More Law Center is one of the non-profits currently challenging the donor disclosure requirement in the U.S. Supreme Court. John Bursch, an ADF attorney representing the Law Center, recently joined Tony Perkins on Washington Watch to discuss the case. Bursch remarked, "[T]here was never a legislative judgment. There wasn't even an act of the governor. It was simply bureaucratic nonsense by folks who had all kinds of other things that they could be doing rather than harassing charities for their private donor information."

Bursch pointed out that the case of Americans for Prosperity Foundation v. Bonta isn't a conservative versus liberal issue. Many people across the political spectrum are concerned by what is happening in California. Even the liberal American Civil Liberties Union has filed briefs in support of the non-profits challenging the donor disclosure requirement. During oral arguments, both the liberal and conservative justices seemed sympathetic to the plaintiffs. An amicus joined by 27 states supported the conservative non-profits, noting that only four other states require reporting large donors to the government.

Data collection isn't the only problem with California's policy. The policy has proven to pose significant security risks as well. California receives all the donor information in their databanks, which were mistakenly put online and routinely hacked. Justice Alito pointed out that the district court found California's security lapses to be "shocking." Justice Sotomayor added that reasonable donors might no longer have faith in California to safeguard their privacy and keep their information private. This lack of faith chills diversity in charitable giving, as apprehensive donors might opt out of giving altogether or else lower their giving below a threshold that would trigger a notice to the government. Bursch explained, "The Thomas More Law Center, for instance, had testimony from clients and from employees who had been [intimidated] in all kinds of ways. They had been threatened; they had gotten harassed. They had, in one instance, even had an assassination attempt against them because of their religious ideology."

Bursch noted that some donors choose to remain anonymous out of religious conviction, so that they won't receive earthly credit for giving. Other donors simply want their religious or political beliefs to stay confidential. Regardless of their reasons, donors should never be reported to the government for their charitable contributions. Thankfully, it looks as though the U.S. Supreme Court will recognize that and deliver a win for the Thomas More Law Center and all other nonprofits.