The Supreme Court on Monday takes up an appeal from two conservative groups that don’t want to tell state regulators the names of their biggest donors.
Americans for Prosperity, supported by billionaire industrialist Charles Koch and his late brother, David, along with the Thomas More Law Center, a conservative Christian legal organization, are asking the justices to rule that a California disclosure requirement violates their First Amendment rights and exposes top donors to intimidation or attack, making them reluctant to contribute.
The two groups are challenging a law requiring charities to file reports every year, including a copy of an IRS document listing the names and addresses of their top contributors. The state gathers the information to help detect the use of charities to commit financial fraud.
The filings are supposed to be kept confidential, but some of them ended up being posted online —inadvertently, according to the state.
“The specter of harmful publicity chills charitable donors from contributing to private charities in the first place, potentially drying up charities’ most important sources of support and further inhibiting the freedom of association,” Americans for Prosperity told the court in its legal brief.
Two other states, New York and New Jersey, have similar requirements.
The Supreme Court has confronted this issue before. In 1958, it struck down an Alabama law requiring the NAACP to disclose the names of its members in the state. The court said the measure would expose them “to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”
Those concerns outweighed the state’s interest in enforcing its corporate designation laws, the ruling said.
In the current case, California said the reporting requirement is an important tool in detecting fraud. And it said the claims of a chilling effect on donors largely amount to speculation, noting that many charities in the state “engage in activities that arouse little public debate or passion.”
The two conservative groups have attracted a wide range of supporters for their position. The Chamber of Commerce and the National Taxpayers Union Foundation are among those filing friend-of-court briefs on their side. But so are the American Civil Liberties Union, the Electronic Frontier Foundation and the Committee on American-Islamic Relations.
Advocates of controls on the money spent in political campaigns urged the court not to use this case to tamper with the separate federal disclosure requirements for campaign contributors. In the past, the court has said any concern about exposing political contributors is outweighed by the government’s interest in enforcing campaign finance laws.
Three Democrats urged the court’s newest member, Amy Coney Barrett, to take herself out of making any decisions about the case, given that the Americans for Prosperity Foundation funded a public campaign in support of her nomination.
“Statute, constitutional case law, and common sense would seem to require your recusal,” said a letter signed by Sens. Richard Blumenthal of Connecticut and Sheldon Whitehouse of Rhode Island and Rep. Hank Johnson of Georgia.
The groups involved in the cases have not formally asked her to recuse. The court will decide the case by late June.