Donor Info Under Assault

October 5, 2015       The NonProfit Times      

It’s a case to define the role of the sector

Charity solicitation regulators have been defeated four times since 1980 in the Supreme Court of the United States but — a bit like Freddie Krueger — they keep coming back.

Recently 58 nonprofit and for-profit organizations filed a friend-of-the-court brief asking the justices to hear a challenge against a regulator who is demanding that charities and advocacy nonprofits file their Form 990 Schedule B showing names and addresses of top donors as a condition to obtain charitable solicitation licenses. The case is Center for Competitive Politics v. Kamala Harris, Attorney General of California.

Federal law protects the confidentiality of tax return information with criminal penalties for violations and sets the express and very limited conditions under which states may obtain Schedule B donor information on a case-by-case basis. Arbitrary, dragnet charitable licensing affecting all charities is not one of those conditions. To obtain this federally-protected information, Ms. Harris is now issuing extortionate threats worse than what was prohibited in the landmark case NAACP v. Alabama protecting private association with nonprofit organizations.

This case is about more than confidential tax return information. The Supreme Court has never fully articulated the comprehensive First Amendment rights involved in charitable soli­citation. Charity communications are participatory, and involve people in causes affecting our local, state, national and global communities or interests. They are the embodiment of Toquevillian, non-governmental democracy in American society. Ms. Harris has no business in those private relationships absent “individualized suspicion” of some lawbreaking.

The amicus brief asks the court to recognize these unique and other vital First Amendment interests of nonprofit missions, communications, and relationships. What we in the independent sector do is too important to be left to just lawyers, politicians — and certainly regulators — to define.  Here’s a clip from the brief:
“Attorney General Harris (“Respondent”) is doing through the annual licensing process, in a dragnet fashion, and for many registrants, reaching individuals with no jurisdictional contacts with California, what this Court prohibited being done by the State of Alabama in NAACP v. Alabama, which sought to ‘compel petitioner to reveal to the State’s Attorney General the names and addresses of all its Alabama members and agents.’ Respondent is violating the freedom of association protected by the First Amendment, and for many organizations that raise money nationally, infringing on rights of individual donors not even subject to California’s jurisdiction.  These violations are compounded by Respondent’s extortionate use of a prior restraint licensing requirement, whereby nonprofit organizations and their principals are subject to fines, censorship and loss of tax-exempt status for operating in contradiction of Respondent’s recent demands that are not required by the California Code for the licensing process.”

Nonprofit speech made with solicitations for funds involves issues far more comprehensive than speech advocating for the election or defeat of candidates for public office. While campaign appeals have one central (and important) purpose — election or defeat of candidates — nonprofit appeals have far more varied purposes. They inform, advocate, and foster debates about many issues — controversial and not — such as medicine and science, religion and politics, social welfare, public policy and private actions, cures for diseases, feeding the poor, housing the homeless, caring for wounded veterans and their families, providing care for abused and abandoned animals, and promoting safety in our communities.
Cumulatively, they touch on every major aspect of society. Some inform citizens about civil liberties, the Constitution, and the law. Many criticize actions taken by the legislative, executive and judicial branches of government, and are independent checks on government. Some even hold law enforcement officials such as the respondent accountable. They are used to criticize large private institutions and even other nonprofit entities. Nonprofits are independent of the government’s officious views, and collectively are commonly referred to as the “independent sector.”

The speech and publications of nonprofit organizations are used specifically to interact with, and obtain the involvement of, citizens in matters of our local, state, national, or global communities or interests. This involvement and interaction may be done through communications broadcasted or published to the public, but it is also done through private and direct channels such as conversations, the United States mail, or email.

When citizens perceive that the missions of nonprofits are worthy, donations resulting from solicitations are a means by which they may adhere to, and associate with, organizations that might be in their local communities or in locations far away. Private donations are the means by which small organizations may grow into larger ones, and sustain them.

Donations to nonprofits are a valuable and irreplaceable means of private association integral to non-governmental, Tocquevillian democracy in American society, and for the benefit of people, animals, and the environment.

The respondent has no officious business in the private relationships between donors and nonprofits absent individualized suspicion of cause of some illegal conduct.

Mark J. Fitzgibbons is president of corporate affairs at American Target Advertising in Manasses, Va., which is one of the organizations to sign on to the friend of the court brief.