Michigan Nonprofits Relieved By Supreme Court’s Donor Privacy Ruling

The U.S. Supreme Court ruled 6-3 this week that the state of California may not force nonprofit groups to hand over the names and addresses of donors. The ruling on the Americans For Prosperity Foundation v. Bonta case ends a threat to donor privacy that also had been a source of recent controversy in Michigan.

A little more than a month after Dana Nessel was elected as Michigan’s attorney general in 2018, the state Legislature passed a bill to prohibit the government from seizing the names and addresses of donors to nonprofit organizations.

Many were surprised when on Dec. 28, 2018, outgoing Gov. Rick Snyder vetoed the bill, arguing donor privacy had not been an issue in Michigan. His veto message also pointed to the Supreme Court’s landmark 1958 ruling in NAACP v. Alabama, which appeared to have closed the door on government attempts to collect donor data.

Snyder vetoed the bill just days before he was replaced as governor by Gretchen Whitmer, and Democrats Dana Nessel and Jocelyn Benson replaced Republicans as Michigan’s new attorney general and secretary of state, respectively. Both Nessel and Benson were on the record opposing the bill Snyder vetoed and supporting the practice of government collecting donor information from nonprofit groups. Their election suggested that if protecting nonprofit donors’ privacy had not been an issue in Michigan before, it might become one in the very near future.

Threats to donor privacy were already a big issue in California, where Attorney General Kamala Harris – now vice president of the United States – had aggressively pursued donor lists from two conservative organizations, Americans for Prosperity Foundation and the Thomas More Law Center.

The groups sued and lost. They appealed and lost more than once before the U.S. Supreme Court decided to hear the case.

This outcome was far from certain in 2018 when Snyder vetoed a bill protecting donor privacy in Michigan. The 1958 NAACP case he cited had not kept Harris from demanding that some groups, widely seen to be her ideological opponents, turn over the names and addresses of their donors. 

That legal fight was still underway when the Michigan offices of governor, attorney general and secretary of state all flipped from Republican to Democratic control just three days after Snyder’s veto.

Nessel had already made clear her support for collecting donor data from nonprofit groups. In 2018, she called the donor protection bill approved by the Legislature “shameful,” according to the Detroit Free Press. Michigan’s mainstream media was largely aligned with that view; reports often said the bill could hamper investigations into fraudulent organizations.

Concerns that Nessel may follow California’s lead grew when her office said it would use the Southern Poverty Law Center’s list of hate groups as a basis for investigations. Some conservative groups and Republican politicians consider that list to be driven by ideology.

In a 2019 email, Nessel’s spokesman Dan Olsen wrote, “While the SPLC is a good place to start when investigating these issues, we will rely on our independent research and not just the SPLC designation.”

This statement revealed that Nessel’s office was aware that relying on SPLC accusations was problematic. One example of a conservative group that landed on the SPLC list is the Family Research Council, which describes its mission as “articulating and advancing a family-centered philosophy of public life.”

The Family Research Center and its donors had good reason to fear seeing their information posted in an internet-accessible government database. Not even two years after it had been designated a hate group by the Southern Poverty Law Center, a man entered the FRC office in 2012 with a gun and 15 Chick-fil-A sandwiches, intending to shoot and kill staffers and smear their faces with sandwiches, according to CNN. The gunman fired three shots and hit one person before being subdued. (The Chick-fil-A restaurant chain was identified with support of a traditional definition of marriage.)

Nessel had also been endorsed by by an organization called End Citizens United, a Political Action Committee. The PAC, which also opposes donor privacy, issued a press release this week on the Supreme Court ruling. It said the ruling was a “gut punch” and “an open door to corruption.”

In its own press release, the Thomas More Law Center praised the Supreme Court’s ruling:

“In the Internet Age, where doxing one’s opponents has led to job loss, boycotts, ostracization, and violence, the fear of such repercussions should one’s charitable contributions become public could be enough to stymy giving, leaving the personal beliefs of many Americans to go unrepresented in the public square.”

The Mackinac Center for Public Policy, the publisher of Michigan Capitol Confidential, is another group with good reasons for wanting to protect information about its donors. In 2011 the Mackinac Center received a death threat related to a Freedom of Information Act request it had made to several state universities.