Year in review: A recap of donor disclosure and privacy policy in 2021

By

Ballotpedia staff

Welcome to the monthly edition of The Disclosure Digest! Keep an out for our weekly edition coming Jan. 12, 2022.

Year in review: A recap of donor disclosure and privacy policy in 2021

State legislators have introduced at least 50 bills that deal in some way with donor disclosure and privacy policy this year. These bills dealt with the disclosure of information about nonprofit donors, which included their names and other information like addresses and the amount donated. Some of these bills required the disclosure of donor information, while others prohibited certain types of disclosure and expanded donor privacy. Of the 50 bills tracked this year, Republicans sponsored 18,  Democrats sponsored 21, and bipartisan groups or committees sponsored the rest. 

Ballotpedia also covered two court cases that could affect disclosure and privacy policy, Americans for Prosperity Foundation v. Bonta and Gaspee Project v. Mederos

Enacted legislation 

Of the eight bills on donor disclosure enacted this year, four failed in their respective state legislatures, and one was vetoed. Six bills were passed in Republican trifecta states while two were in Democratic trifectas. 

  • Arkansas SB535 prohibits a public agency from disclosing identifying information about a nonprofit’s donors.
  • California SB686 requires nonprofits that qualify as a committee or a sponsor of a committee under the state’s campaign finance laws to file a statement of its members with the Secretary of State. The statement must include a list of everyone with a 10% interest in the committee, or who contributed at least $1,000 to the committee.
  • Idaho H0245 would prohibit foreign contributions, independent expenditures, and electioneering in Idaho election campaigns, and Illinois SB0536 bars judicial campaign committees from receiving funds from out-of-state sources, forbids people from making or accepting contributions made on behalf of someone else, and raises the threshold for itemized contributions from $500 to $1,000.
  • Illinois SB0536 bars judicial campaign committees from receiving funds from out-of-state sources, forbids people from making or accepting contributions made on behalf of someone else, and raises the threshold for itemized contributions from $500 to $1,000.
  • Iowa HF309 prohibits a public agency from disclosing identifying information about a nonprofit’s donors.
  • South Dakota SB103 prohibits public agencies from requiring any person or nonprofit to provide identifying information about a nonprofit’s donors. It also prohibits the disclosure of any such information currently in the possession of a public agency.
  • South Dakota HB1079 prevents executive agencies and officials from requiring nonprofits to make disclosures beyond those already required under state and federal law. 
  • Tennessee HB0159 prohibits a public agency from disclosing identifying information about a nonprofit’s donors.

Court activity 

On July 1, the U.S. Supreme Court voted 6-3 in Americans for Prosperity Foundation v. Bonta to strike down a California policy that required nonprofits to disclose their donors’ identities to the state’s attorney general. The policy also required nonprofits to file copies of their IRS 990 forms with the state. Form 990 includes Schedule B, which contains the names and addresses of all individuals who donated more than $5,000 to the nonprofit in a given tax year. Although the policy did not allow the public access to Schedule B information, court documents show that inadvertent disclosures had occurred. 

Chief Justice John Roberts, a George W. Bush (R) appointee,  wrote the majority opinion. Roberts said, “California has an important interest in preventing wrongdoing by charitable organizations.” But, Roberts said, there was “a dramatic mismatch” between that interest and California’s donor disclosure requirements. Roberts wrote: “The upshot is that California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though the information will become relevant in only a small number of cases involving filed complaints.” Roberts added, “In reality, then, California’s interest is less in investigating fraud and more in ease of administration.” Roberts said that interest did not “reflect the seriousness of the actual burden that the demand for Schedule Bs imposes on donors’ association rights.” 

In another case, Gaspee Project v. Mederos, the United States Court of Appeals for the First Circuit upheld a 2012 Rhode Island donor disclosure law. The law requires organizations that spend more than $1,000 per year on independent expenditures or electioneering communications to file a report with the Board of Elections disclosing all donors who contribute more than $1,000. Affected organizations must also register with the Board, provide the name and address of the person or group responsible for the expenditure, and list the names of their five largest donors from the previous year. In 2019, two nonprofit organizations challenged the law. The case was dismissed in 2020 before being appealed to the higher court.

The court rejected the plaintiff’s arguments. Writing for the court, Judge Selya said: “ The Act’s disclosure requirements are narrowly tailored enough to avoid any First Amendment infirmity.” Selya also said “we hold that the challenged provisions of the Act bear a substantial relation to a sufficiently important governmental interest and are narrowly tailored enough to withstand exacting scrutiny.”

The big picture

Number of relevant bills by state: We’re currently tracking 50 pieces of legislation dealing with donor disclosure and privacy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status: 

Number of relevant bills by partisan status of sponsor(s): 

Recent legislative actions

For complete information on all of the bills we are tracking, click here. 

  • Maine LD1754: This bill amends the law requiring contributors giving more than $100,000 to a political action committee or ballot question committee to file a statement with the Commission on Governmental Ethics and Election Practices. The bill would exempt political action committees and ballot question committees already registered with the commission from filing the major contributor report, permit a major contributor to request a modification of the requirement to disclose its five largest sources of income in the previous six months, clarify the enforcement provisions regarding potential violations and the factors the commission must consider for each potential violation. 
    • Primary emphasis: Disclosure
    • Democratic sponsorship
    • The bill was referred to committee on Nov. 30, 2021.
  • Missouri HB1505: This bill would require non-committee entities that spend $500 or more in an election, or on an issue before the legislature to file quarterly reports disclosing information on donors who gave $50 or more.
    • Primary emphasis: Disclosure
    • Democratic sponsorship
    • This bill was introduced on Dec. 1, 2021.
  • Missouri HB1511: This bill requires committees involved in inaugural activities on behalf of a statewide office holder to file disclosure reports with the ethics commission that itemize the committee’s receipts, expenditures, and debts. Subsequent reports must include a list of each person who donated $25 or more to the committee including their name, address, and employer.The bill would bar committees from accepting donations from entities that do not provide this information.
    • Primary emphasis: Disclosure
    • Democratic sponsorship
    • This bill was introduced on Dec. 1, 2021.
  • Florida H0617 and S0294: These bills would allow donors or prospective donors to the direct-support organization of the Statewide Council on Human Trafficking s to remain anonymous and provide an exemption from notice requirements for specified meetings. They provide for future legislative review and repeal of the exemption under the Open Government Sunset Review Act.
    • Primary emphasis: Privacy
    • Republican sponsorship
    • These bills were referred to committee on Nov. 30 (S0294) and Dec. 6 (H0617), 2021.
  • Michigan HB5614 and SB0788: These bills would require campaign committees to report contributions from an individual acting on a committee’s behalf no later than five days before the closing date of any campaign statement the committee is required to file. An independent committee or political committee must include in its name the name of the committee’s sponsor(s), if any, or the committee’s affiliation.
    • Primary emphasis: Disclosure
    • Republic sponsorship
    • These bills were referred to committee on Dec. 8 (HB5614) and 9 (SB0788), 2021.