Donor privacy: A civil rights lesson Democrats should remember

No issue or accomplishment is more central to the contemporary Democratic Party’s self-identity than civil rights. It was President Lyndon Johnson, a southern Democrat, who pushed civil rights, voting rights and fair housing laws through Congress in the 1960s.

This makes it all the more difficult to understand why Democrats — who now control both chambers of Congress for the first time in six years — would make what they’re terming “democracy reform,” specifically H.R. 1, their agenda-setting legislation for the new Congress. In one provision of the bill, Democrats turn their backs on a key U.S. Supreme Court decision of the civil rights era: the right for charitable donors to avoid racial violence by not being forced to reveal their names.

This issue dates to Alabama in the mid-1950s — a time when the Ku Klux Klan was perpetrating heinous acts against American civil rights leaders as the movement gained strength in the Deep South. Rosa Parks had just earned national attention for her refusal to move to the back of a public bus in Montgomery, where Martin Luther King Jr. would soon lead a 13-month signal bus boycott. Klan violence against Blacks and their white supporters was very real: The 1963 bombing of the 16th Street Baptist Church in Birmingham claimed the lives of four young Black girls, and Viola Liuzzo, a white Detroit activist, was murdered for assisting the voting rights movement following the famous march across the Edmund Pettus Bridge in Selma.   

The NAACP was organizing direct and legal action in the South at the time, which meant its supporters were exposed to exactly this sort of deadly retribution. This imminent danger is what made the state of Alabama’s effort to force the NAACP to reveal its membership list so crucial. Members, of course, were likely to be financial supporters as well.   

After a judge ruled in the state’s favor, the NAACP Legal Defense Fund took the case to the U.S. Supreme Court. In the opinion for the majority, Justice John Harlan said: “Immunity from state scrutiny of petitioner’s membership lists is here so related to the right of petitioner’s members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment.” Further, the right to protect its memberships list was central to the NAACP’s right to the “advancement of beliefs and ideas.” This was vitally important at a time when Klan-style violence could mean death.  

Yet, today, with H.R. 1, we see Democrats abandoning the Alabama precedent by requiring the names of donors involved in political advocacy to be made public in the same fashion as direct campaign donors. The scope of the proposal appears to be narrow, focusing on political action committees and so-called “dark money,” but these donors need protection as much as anyone else. 

Issue advocacy groups inevitably use contested elections to make their views known. For example, imagine if the NAACP in Alabama chose to run ads about Klan violence in 1958 — at a time when the successful gubernatorial candidate was actually endorsed publicly by the Klan. Should the NAACP be forced to publish its list of donors? Under H.R. 1, they would have to.  

H.R. 1 does tip its cap to the possibility of threats against donors, saying donations could be private “if the inclusion of the information would subject the person to serious threats, harassment, or reprisals.” But as the Chicago law firm Wagenmaker and Oberly, which specializes in nonprofit law, has noted: “H.R. 1 contains no guidance or other language to determine how this exception should be interpreted or applied. For that reason, such exception may be defined based on experience of actual threats and reprisals. In other words … too late.”   

There is no doubt that the potential for threats and harassment has evolved dramatically — to the point that many citizens feel they must self-censor. One could attribute this to the chilling effect of “cancel culture,” which now extends from universities and businesses to political campaigns. It’s true that cultural conservatives — such as those who supported the 2008 California referendum barring gay marriage and faced personal backlash because political contributions are already public information — might be protected by donor privacy rules. But they would not be alone. Democrats would be blinkered if they ignore that donors to Planned Parenthood or the American Civil Liberties Union also could face serious threats. Planned Parenthood offices already have been targeted by murderous extremists in recent years.  

In fact, supporters of the NAACP Legal Defense Fund would seem to understand exactly that. The fund recently announced a $40 million scholarship program for future civil rights lawyers in the South, which was supported by a single gift from, yes, an “anonymous” — otherwise known as a “private” — donor. Even if donors do not fear retaliation, there are other traditional reasons for anonymous giving, such as religious reasons or simple humility. It was the 12th century Jewish scholar Maimonides who believed that anonymous giving constituted a good deed performed for its own sake.

Donors of all persuasions should take care not to support violent fringe groups. But there’s no need to do away with the privacy that anonymity affords charitable giving. If nonprofit groups go off the rails — with overt calls for violence, for example — the IRS has the tools it needs to investigate the legitimacy of their tax-exempt status. They should be judged by their work and not by attributing motives to their supporters. Democrats who want to go farther are forgetting the lessons of their own proud past.

Howard Husock is the executive senior fellow at The Philanthropy Roundtable and the author of “Who Killed Civil Society?”