At a recent hearing, numerous attorneys and First Amendment scholars provided testimony on the IRS’s proposed change to eliminate the requirement that certain exempt organizations disclose the names and addresses of contributors. Former Federal Election Commission Commissioner Hans A. von Spakovsky, of the Heritage Foundation, highlighted the burden put on nonprofits as well as the First Amendment and privacy implications of disclosure in his testimony:
Not only does it needlessly increase compliance costs for nonprofits, but such disclosure to the IRS of donor information is not required to enforce Federal law . . . Compelled disclosure contributions made by Americans and nonprofit membership organizations also violates their privacy, and their First Amendment rights of free speech and association.
Mr. von Spakovsky grounded his comments in landmark Supreme Court decisions:
The U.S. Supreme Court first recognized [this principle] in 1958 in NAACP v. Patterson, but the Court emphasized it again in 1976 in the seminal campaign finance case Buckley v. Valeo when it said, "The compelled disclosure quote can seriously infringe on privacy of association and belief guaranteed by the First Amendment."
James Bopp of the James Madison Center for Free Speech echoed concerns of the adverse effects of disclosure:
The legal harm of publicly exposing contributors is that it deters their affiliation with the groups to which they contribute and thereby infringes on their First Amendment-protected right of political association.
Robert Alt, of the Buckeye Institute, clarified that past and potential actions taken by state and federal government officials are the core of what is at concern with these disclosures:
To be clear, the concern here on the part of the donors was not potential disclosure of their information to third parties but rather how governmental entities would use or rather misuse the information themselves. This concern about disclosure to a government agency, which could be used in facilitating government retaliation for protected activity, had a demonstrable chilling effect on the freedom to associate. The chilling effect arises in substantial measure from the legitimate concerns many Americans have about the politicization of governmental action . . . .
Arizona Attorney General Mark Brnovich summed up well the principles at stake here:
We, as a country, and our First Amendment embodies the importance of free speech and the importance of freedom of association. We recognize — the Supreme Court has recognized — that it requires vigilant protection, and the tradition of anonymity in one's exercise of their First Amendment rights goes back to the very founding of this country.