• by Wendy Davis  @wendyndavis, March 2, 2021

A California policy requiring charities to disclose donors' identities to the state attorney general will undermine fundraising efforts and charitable giving, the Association of National Advertisers says in a new Supreme Court filing.

“Would-be donors have many legitimate reasons to insist on anonymity, confidentiality, and privacy,” the ANA writes in a friend-of-the-court brief filed this week. “Forced disclosure of donor names to state authorities undermines donors’ reliance on anonymity and privacy and, in turn, threatens the ability of charitable organizations to rely on those donors.”

The organization is weighing in on a California policy that requires tax-exempt charities in the state to tell the attorney general the names and addresses of people and corporations giving more than $5,000.

The attorney general is required to keep that information confidential.

But the ANA argues in its filing that even confidential information can leak. What's more, the group says, donors can have valid reasons for wanting to keep their identities from state attorneys general.

“Corporate and individual donors will rightly be concerned that politically motivated individuals holding discretionary law enforcement power -- such as state attorneys general -- will use these disclosures to target them in some fashion,” the ANA writes.

The organization, which says members “are among the largest supporters of charitable activities in the United States,” adds that charitable donors value their privacy.

“What ANA knows firsthand ... is that private donors, corporate or individual, place great value on anonymity,” the group writes.

The dispute largely dates to 2010, when the California attorney general began demanding that charities provide the state with the same information about donors -- including their identities -- as is disclosed to the Internal Revenue Service.

By 2015, the state attorney general sent around 8,000 letters to different charities, telling them they had failed to provide that information, according to court papers.

Current attorney general Xavier Becerra, who took office in 2017, says the information about donors is necessary to prevent fraud.

Two groups -- the Americans for Prosperity Foundation (founded by the conservative Koch brothers) and the right-wing Thomas More Law Center -- challenged the attorney general's stance. The advocacy organizations say the policy violates the First Amendment for several reasons, including that it could discourage people from exercising their right to associate with charities.

In 2018, the 9th Circuit Court of Appeals upheld the state's policy, ruling that any burden on the “right to association” is modest.

“The plaintiffs have not demonstrated that compliance with the state’s disclosure requirement will meaningfully deter contributions. Nor, in light of the low risk of public disclosure, have the plaintiffs shown a reasonable probability of threats, harassment or reprisals,” the appellate judges wrote.

The advocacy groups sought review by the Supreme Court, which agreed in January to hear an appeal.

The case has drawn the interest of a large number of outside organizations -- including the ACLU, Electronic Frontier Foundation and other civil rights groups -- which also say the California policy is unconstitutional.

“The record in this case discloses a disturbing pattern of failures to keep the forms confidential,” the ACLU and other advocates write. “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. The resulting chill to First Amendment interests harms donors, nonprofit organizations, and civil society writ large.”