Amicus Brief: Rio Grande Foundation v. Oliver

New Mexico requires donor disclosure, even for groups that publish communications that merely mention a candidate’s name too close in time to an election. The Rio Grande Foundation wanted to mail out its Freedom Index (an incumbent scorecard) to grade state legislators on their votes on issues important to the group. The mailing did not advocate for or against any candidate. But New Mexico's law would force the Foundation to disclose donors to its general fund, which the Foundation refused to do. The Foundation sued, arguing that the law violates the right to donor privacy. But it lost at the district court and the Tenth Circuit, and the case is now on petition for Supreme Court review.

The Manhattan Institute has joined the Americans for Prosperity Foundation (AFPF) on an amicus brief in support. We argue that the lower courts misapplied the important donor-privacy case of AFPF v. Bonta. When donor disclosure is mandated, the government needs to demonstrate a compelling reason that doesn’t unduly chill First Amendment protected activity.

Anonymous donations to support political speech are a core aspect of the First Amendment. Some people would not donate to organizations if their names became publicly available. For example, if someone was supporting the NAACP in southern states during the civil-rights era, they probably wouldn't want that to be publicized. Under the Supreme Court's AFPF decision, exacting scrutiny requires the government to explain why it needs this information from these people. Moreover, there is a trend of circuit courts misapplying the AFPF v. Bonta decision. The Court should take the case to clarify that donor privacy is an important part of the First Amendment.

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

Trevor Burrus is a legal policy fellow at the Manhattan Institute.