Written Testimony of Philip Hackney for the Hearing on Donor Disclosure and Campaign Finance Regulations: Reviewing Recent Legal Precedents (Pennsylvania House of Representatives, State Government Committee, February 7, 2022)

Abstract

The following is written testimony provided to the Pennsylvania House State Government Committee for a hearing entitled Donor Disclosure and Campaign Finance Regulations: Reviewing Recent Legal Precedents held on February 7, 2022. In 2021, the U.S. Supreme Court in Americans for Prosperity Foundation v. Bonta struck down as facially unconstitutional under the First Amendment a law in California requiring charities soliciting donations in the state of California to disclose substantial donors identified on Schedule B to the IRS Form 990. The Form 990 is the information tax return nonprofits must file annually to maintain their tax-exempt status. Schedule B collects from charities information about substantial donors. California argued it had a compelling interest in collecting the information in order to police fraud on charities. The Court, however, found that the law chilled the free association rights of donors without narrowly tailoring the law to the state of California’s governmental interest. Notably, this was neither a tax case, nor a campaign finance case. Nevertheless, the reasoning of the Court may impact the constitutionality of disclosure laws associated with both domains of law. I will first describe the reasoning of Americans for Prosperity Foundation, briefly discuss prior Court precedents on disclosure in the campaign finance regime, then describe the tax law obligations of the nonprofit organizations that tend to populate and dominate the space of the political in our country.

Keywords: 527, 501(c)(3), 501(c)(4), 501(c)(6), nonprofit, democracy, tax policy, dark money, charitable organization, social welfare organization, Donor Disclosure, campaign finance, nonprofit, Form 990, Schedule B, Americans for Prosperity, charitable contribution, Tax Exemption, Citizens United

JEL Classification: K23, K34