Sometimes, who you know matters more than what you know. But must you share with the federal government who you know or wish to support financially?
On April 29, the U.S. 6th Circuit Court of Appeals heard oral arguments in Buckeye Institute v. IRS, challenging the IRS’s requirements that certain non-profit organizations disclose personal information about their “substantial donors.” On the very same day, the Supreme Court issued a unanimous ruling defending freedom of association and donor privacy. The court should use Buckeye as an opportunity to further reaffirm the First Amendment’s protection of the right to anonymous association, which has been central to the American experiment.
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The IRS requires many 501(c)(3) nonprofit organizations to disclose the total number of contributions received every year as well as the names and addresses of all “substantial contributors.” Substantial contributors are those who contribute “an aggregate total of $5,000 per tax year, if the contributed amount is more than two percent of the total contributions the organization receives in a tax year.”
Although the IRS is required to keep this donor information confidential, time and again, “secure” government databases have been hacked, exposing the sensitive information of millions of Americans. In December 2024, Chinese state-sponsored hackers overrode the U.S. Treasury Department’s cybersecurity systems and stole unclassified documents in what the Treasury called a “major incident.”
As well as inviting threats from sinister actors, the IRS itself has repeatedly leaked the sensitive donor information of non-profit organizations. In 2022, the IRS accidentally posted taxpayer information for 501(c)(3)s reported on Form 990-T.
Even worse, in 2014, an IRS employee disclosed an unredacted Form 990 for the National Organization for Marriage, a group advocating laws to define marriage as between a man and a woman, to a person claiming to be a reporter. The alleged reporter then sent the form to the Human Rights Campaign, a group advocating same-sex marriage, and the information was used to attack Mitt Romney for his donations to the National Organization for Marriage.
In 2012, the IRS leaked information relating to applications for tax-exempt status of several conservative organizations to ProPublica. Similarly, the agency disclosed information about 31 other groups in 2013. Again in 2021, ProPublica obtained personal tax information from the IRS for thousands of the nation’s wealthiest people, which they referred to as “The Secret IRS Files” and the “Trove of Never-Before-Seen Records.”
Perhaps these records had never been seen because they contain highly sensitive information that should only be disclosed at the discretion of their owners. That the government finds having this information convenient is not a sufficient justification to invade the liberty of the American people.
In fact, the American tradition of association is older than the nation itself. Early colonists left Europe for the New World, hoping to establish societies where they could worship freely without registering with the government. Over a century and a half later, the American people dissociated from the English crown while retaining some of its institutions that best protected their liberties.
Accordingly, the Supreme Court has long recognized the right to associate freely as among the fundamental rights protected by the First Amendment. On April 29, the Supreme Court unanimously said so in First Choice Women’s Resource Center v. Davenport, a case where New Jersey’s Attorney General issued a subpoena to a pro-life pregnancy center demanding that it turn over a massive amount of information, including personal information of the donors behind 5,000 donations: “Our cases have long recognized that demands for a charity’s private member or donor information … burden’s a plaintiff’s constitutional rights.”
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For Davenport, the Supreme Court relied on precedent during the struggle against Jim Crow. In NAACP v. Alabama, the state sought to access the NAACP’s donor records, the disclosure of which, given the racial strife and persecution of the 1950s, would have facilitated harassment or worse. There, too, the court found that a forced disclosure of the NAACP’s donor list would violate the First Amendment protections to free speech and association.
Similarly, when Buckeye Institute and other non-profit organizations are forced to disclose their donor lists to the IRS, they have repeatedly suffered breaches, hacking efforts, and internal leaks. With Buckeye, the 6th Circuit should uphold the district court’s decision and reinforce the right to association, including anonymous association, which has been essential to the American experiment.
Marc Wheat is the legal counsel at Advancing American Freedom Foundation.
