Amicus Brief: Buckeye Institute v. IRS

The First Amendment rights to free speech and association are foundational to American freedom. Cases from the McCarthy and Civil Rights eras made it clear that compelled disclosure of speakers’ associations must survive exacting scrutiny.

Just three years ago, in Americans for Prosperity Foundation v. Bonta, the Supreme Court applied this standard and held that California’s request for donor information violates the First Amendment because the state failed to show a compelling reason for that request. The compelled disclosure of nonprofit-donor information to the IRS, through a federal tax form known as Schedule B, similarly infringes on these rights, so the Ohio-based Buckeye Institute sued to block that disclosure and moved for summary judgment. The Manhattan Institute has now joined 70 organizations on a brief supporting that lawsuit.

Despite its protestations, the IRS fails to demonstrate any need for the compelled up-front disclosure of Schedule B’s donor information to further its interest in revenue collection. Because the compelled disclosure is both under- and overinclusive in furthering any such interest, and cannot be justified based on administrative convenience, it fails exacting scrutiny. And just as California failed to ensure the confidentiality of donor information, the IRS’s history of mishandling confidential taxpayer information threatens to chill the speech and association rights of 501(c)(3) organizations and their donors.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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