The following is a guest post submitted by People United for Privacy. Their vision is an America where all people can freely and privately support ideas and nonprofits they believe in so all sides of a debate will be heard, individuals won’t face retribution for supporting important causes and all organizations can advance their missions because the privacy of their donors is protected.
In early February, People United for Privacy (PUFP) published a memo forecasting legislative threats to nonprofit advocacy and donor privacy in states across the country in 2024. Alarmingly, we expect threats to arise in as many as 31 states, with some legislatures already considering bills that would chill nonprofit advocacy and expose nonprofit members and supporters to harassment and intimidation.
To find out if your state made the list and learn more about this year’s most prominent threats, we encourage all nonprofits and their supporters to review the full memo, available here. Below are five key takeaways as the 2024 legislative sessions intensify.
Both Parties Pose a Threat to Privacy
Of the 31 states featured in the memo, 14 have legislatures controlled by Democrats and 12 have Republican-controlled legislatures. The remaining five feature split control, whether between chambers or dividing the legislature and the governor.
The top 10 threat states identified in the memo also feature a mix of Republican and Democratic control. Particularly pronounced threats to nonprofit speech and privacy rights are present in the Republican-controlled states of Idaho, Ohio, Oklahoma and Wyoming as well as the Democratic-controlled states of California, Hawaii, Michigan, Minnesota and Oregon. Virginia, which has a Republican governor and a Democratic-controlled legislature, is also one of the 10 states most at risk of adopting legislation in 2024 that would curtail nonprofit advocacy and invade citizen privacy rights.
Election Year Threats Are Less Numerous but More Dangerous
Historically, legislative sessions in election years witness a lower volume of activity than their odd-year, post-election counterparts. Some of the explanation is structural. Four states – Montana, Nevada, North Dakota and Texas – don’t meet in regular session in even-numbered years. Other states have shorter sessions or focus primarily or exclusively on budget matters. From a policy standpoint, privacy opponents who intend to chill education and advocacy by the nonprofit community often discover that the complexity of their schemes means they cannot take effect in time to have an impact in an election year, so they punt their efforts to the next session.
That’s the good news. The bad news is threats which persist despite these factors are especially dangerous. While we’ll likely see fewer active legislative threats in 2024, those threats that are seriously considered are likely to be more intense, as lawmakers pushing such efforts are buoyed by a desire to chill nonprofit advocacy before their terms expire.
Failed Proposals from Prior Sessions Will Reappear
We know from experience that determined lawmakers will continue to reintroduce and refine their proposals until passage is secured. Just because a bill stalled or was rejected in a prior session does not mean it won’t return or gain majority support in the future.
For example, lawmakers in Virginia have already revived previously defeated efforts to force nonprofits to identify significant supporters within public communications about policy issues and ballot referenda. We also anticipate the re-emergence of failed anti-privacy proposals in California, Idaho, Minnesota, Ohio and Wyoming, among other states.
“Foreign Influence” Claims Mask Threats to Americans’ Privacy Rights
Legislation banning contributions and expenditures by so-called “foreign influenced corporations” may not sound like a concern for American donors to charities and nonprofits. Yet, these bills are a clear attempt to circumvent First Amendment protections recognized by the Supreme Court by defining “foreign influenced corporation” as any company with as little as 1% of its equity owned by a foreign investor.
In practice, this would strip First Amendment rights from many American businesses controlled and operated by American citizens, whose political engagement is in no way directed by foreign nationals. Importantly, such legislation is likely to impact the speech and privacy rights of nonprofits, particularly business associations, that receive contributions from corporations owned by a multitude of shareholders. Hawaii, Pennsylvania and Washington are three states facing such threats.
Another somewhat nebulous threat emerging from vague concerns over foreign influence is more directly aimed at nonprofit supporters. Governors, attorneys general and legislators in multiple states have announced plans to investigate or otherwise take action in response to allegations of foreign contributions to nonprofits. This emerging threat, also unfolding in Congress, is being tied to prominent concerns over election integrity. While there seems to be little consensus on legislation, the rhetoric alone is enough to place the nonprofit community on high alert. PUFP is on guard for proposals of this nature in Georgia, Missouri, Ohio, Oklahoma and Virginia.
Arizona’s Anti-Privacy Law Could Be Coming to Your State Next
Arizona voters approved Proposition 211 in 2022 after a misleading campaign in which proponents argued the initiative would require the disclosure of “campaign” donors. The measure’s true impact is the forced disclosure of donors – and their donors’ donors, what the initiative terms “original monies” – to nonprofit organizations that voice opinions on public policy debates and legislative matters in Arizona. The end result will be many nonprofits choosing to self-censor and many Arizonans ceasing to give to causes they believe in, further entrenching the power of elected officials and the media while silencing the voices of everyday Arizonans.
While multiple legal challenges to Prop 211 are ongoing, the text of the law is already spreading to states around the country. In addition to efforts in Hawaii, Maine and Oregon, an Oklahoma lawmaker recently filed a rulemaking petition with the state Ethics Commission that copies word-for-word the draconian Arizona statute.
For more detailed information, the full memo from People United For Privacy discusses particular threats in the states and also includes links to bill text, analysis/commentary and news coverage that readers may find useful. Nonprofits of all types – and their supporters – should be on guard for harmful proposals in their state, as both parties increasingly view donor disclosure mandates as a tool for ruining their opposition and settling political scores.
