Senator Sheldon Whitehouse (D., R.I.) questions judicial nominees during a hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., December 4, 2019. (Joshua Roberts/Reuters)

The American Civil Liberties Union and other progressive groups have filed a brief in support of a Supreme Court challenge to California’s donor disclosure rule over First Amendment concerns, positioning themselves in opposition to Senator Sheldon Whitehouse (D., R.I.) and other Democrats who have decried “dark money” political activity.

The rule in question requires all charities that raise money in California to disclose donors to the state attorney general, which opponents argue will deter prospective donors and members.

Whitehouse has called on the Justice Department to reverse course and support the rule in the Supreme Court, though a number of progressive groups with which the senator usually aligns have argued that donor anonymity is key to their fundraising efforts.

The NAACP Legal Defense and Education Fund, the Knight First Amendment Institute at Columbia University, the Human Rights Campaign, and PEN America have joined the ACLU in filing the brief in support of a case brought by the Americans for Prosperity Foundation, a Koch-backed advocacy group, against California’s rule, which is over two decades old.

“The First Amendment protects associational privacy for a reason,” said Brian Hauss, staff attorney with the ACLU Speech, Privacy and Technology Project in a statement. “People who fear that they will be subject to threats, harassment, and reprisals if their associations are publicly revealed by the government, whether intentionally or by mistake, will be chilled from exercising their First Amendment rights.”

“If California is allowed to continue sweeping up nonprofits’ sensitive donor information, despite its demonstrated inability to keep that information confidential, civil society will end up paying the price for the government’s failures,” he added.

While California claims it keeps donor information confidential, representatives of then-California attorney general Kamala Harris in 2016 acknowledged numerous privacy breaches had occurred. AFPF uncovered nearly 1,800 examples of information charities had disclosed to the state ending up online. It also found that the digital database where contributor information is stored is vulnerable to cyberattacks.

The ACLU brief says the case shows a “disturbing pattern of failures to keep the forms confidential.”

“California’s assurances that previous mistakes will not be repeated is unlikely to persuade donors that their information, once handed over to the state, will remain confidential,” it says. “The resulting chill to First Amendment interests harms donors, nonprofit organizations, and civil society writ large.”

“The Court should be careful to avoid overbroad pronouncements that might call into question the viability of disclosure requirements in appropriate contexts,” the brief adds. “For instance, public-disclosure requirements serve especially compelling interests in the context of electoral campaigns, where transparency furthers the interest in ‘curbing the evils of campaign ignorance and corruption.’”

However, Whitehouse argues in a letter to the Justice Department that the state keeps donor information “entirely confidential, and there is no evidence to suggest that California’s regime could lead to public harassment or other negative consequences.”

The letter, which was signed by all eleven Democrats on the Senate Judiciary Committee, differentiates between groups such as the NAACP, which has a great need for donor anonymity, and “industry-funded ‘charitable’ front groups like plaintiff Americans for Prosperity Foundation,” which face “no comparable threat of reprisal.” 

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