This week, the U.S. Supreme Court heard oral argument in two consolidated cases that ask it to determine if the First Amendment protects associations and their donors from blanket disclosure requirements. At issue in Americans for Prosperity v. Bonta and Thomas More Law Center v. Bonta is California’s mandate that charitable organizations periodically report to its Attorney General the names and addresses of all their major donors.
The Ninth Circuit upheld California’s blanket disclosure regime without requiring the state to show that it is narrowly tailored to the state’s asserted law-enforcement interest. The petitioners argue that in doing so, the Ninth Circuit watered down the “exacting scrutiny” that the Supreme Court—beginning in NAACP v. Alabama ex rel. Patterson—has applied to laws that burden the freedom of association outside the election context.
While the cases put at issue the rubric for evaluating mandatory disclosure regimes, it is beyond debate that such regimes burden the freedom of association. As the Supreme Court has explained, disclosure of a group’s members or donors can lead to their public exposure, causing them to endure “harassment or retaliation,” “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.” Such consequences, in turn, may “induce members to withdraw from the [group] and dissuade others from joining it,” and may “deter some individuals who otherwise might contribute” from making donations.
Indeed, in its seminal case on associational freedom, the Court likened the chilling effect of mandatory disclosure regimes to the chilling effect of “‘[a] requirement that adherents of particular religious faiths or political wear identifying arm-bands.’”
The petitioners have garnered significant amicus support from across the ideological spectrum. Many of their amici have highlighted their vulnerability—especially in today’s “cancel culture” climate—to the kinds of domestic hostility set forth above.
But a brief by one group of Chinese dissidents has directed the Court’s attention to the unique, international harms that donor disclosures can impose on organizations that hold foreign governments accountable for their misdeeds.
Citizen Power Initiatives for China advocates for a peaceful transition to democracy in China, draws attention to the Chinese Communist Party’s human-rights abuses, and advocates for the release of Chinese political prisoners. Most recently, the group has documented the Chinese government’s abuse of the Uighur people and its mismanagement of the COVID-19 pandemic. Founded by a former communist party member who narrowly escaped the Tiananmen Square massacre and was imprisoned upon his return to China, the group and its leadership are regular targets of Chinese disinformation campaigns, hacking, and other reprisals. China has imprisoned at least one of its major donors, and another stopped his support when he learned that the communist party had discovered his donations.
Because all of Citizen Power Initiatives’ supporters have significant ties to China—whether by their own citizenship, residency, or business activities, or those of their families—they are uniquely vulnerable to extreme forms of coercion by the communist party. By donating to the group, they put their lives and livelihoods on the line.
To be sure, California’s mandatory disclosure regime and the Ninth Circuit’s lenient approach are cause for concern for all organizations that engage in advocacy on controversial issues. That much is clear from the factual record in the cases. Notwithstanding the California Attorney General’s assurances of confidentiality, following a bench trial, the district court found a “pervasive, recurring pattern of uncontained” leaks of donor information that “has persisted even during [the] trial.” That pattern included the exposure “of around 1,800” donor lists.
Moreover, the trial also revealed “substantial evidence” that California’s registry was “an open door for hackers,” with “every confidential document in the registry—more than 350,000 confidential documents”—hackable “merely by changing a single digit at the end of the website’s URL.”
Debate over the Ninth Circuit’s ruling understandably has centered on liberal states’ mishandling of conservative groups’ private donor information, the modern rise of “cancel culture,” and public hostility to conservative causes. But Citizen Power Initiatives has provided an additional, more international perspective that may prove useful as the Supreme Court clarifies the legal test that governs mandatory, blanket donor disclosures.