When conservative and liberal advocacy groups agree that a statute violates the First Amendment of the United States Constitution, it probably does.

That’s exactly what’s happening in New Jersey, where the conservative Americans for Prosperity and the liberal ACLU are each suing to overturn a state law that requires advocacy groups to disclose their donors.

On Wednesday, U.S. District Judge Brian Martinotti granted a preliminary injunction in AFP’s case, Americans for Prosperity v. Grewal.  Judge Martinotti’s order bars New Jersey from implementing the disclosure law, which was set to take effect on October 15,  until the lawsuit is resolved.

The New Jersey statute requires party associations and grassroots advocacy groups to report donors of more than $10,000 when such groups spend at least $3,000 to influence legislation, regulations, or an election.  The act also requires covered groups to report all fundraising events and all contributions of $300 or more made at these events to the state Election Law Enforcement Commission (ELEC). These disclosure requirements do not apply to unions or trade associations. 

Proponents of the measure, signed last year by Democratic Governor Phil Murphy, say it is necessary to curb the influence of so-called dark-money in politics.  But the non-profits say it requires advocacy groups not directly involved in electioneering to expose their donors in violation of the First Amendment right of free association. AFP further argues that the potential criminal penalties for violating the law will make contributors think twice about giving money to advocacy groups in New Jersey.

Earlier this month, Independent Women’s Forum joined The Philanthropy Roundtable in filing an amicus brief urging the Supreme Court to take up a different donor privacy case, which also involves AFP.  

In that case, Americans for Prosperity Foundation v. Becerra (9th Cir. 2018), former California Attorney General Kamala Harris, now a U.S. Senator and candidate for the Democratic nomination for president, demanded that nonprofit organizations turn over the names and addresses of donors of more than $5,000 per year. AFP refused, citing First Amendment concerns. The Court of Appeals for the 9th Circuit rejected AFP’s argument stating that “the information is collected solely for nonpublic use, and the risk of inadvertent public disclosure is slight.”

IWF filed its brief in support of AFP out of concern that the California law has a chilling effect on philanthropic giving to organizations that take tough positions on controversial policy issues. 

Many groups and causes that today we regard as uncontroversial were, in fact, quite controversial in their time.  The Americans who financially supported the Sons of Liberty, the anti-slavery movement, the women’s sufferage movement, and the civil rights movement did so with some risk of social, political, and economic backlash. Thankfully, donors to these causes had the freedom to do so anonymously. 

In response to the ruling in the New Jersey case, Tony Howley, director of AFP’s New Jersey Chapter, said: “American should be free to advocate for causes they believe in without retaliation by elected officials.”

Jeanne LoCicero, legal director of ACLU’s New Jersey Chapter, also hailed the decision. “The donor disclosure law puts core constitutional rights at stake,” she said in a prepared statement. 

Let's hope that courts faced with challenges to similar disclosure laws agree.