The coronavirus pandemic has been hard on us all. The good news is that Montana is recovering as the economy safely reopens. Not only is this good for businesses, but it relieves some of the pressure on nonprofit organizations that have been serving the needs of workers and their families.
Montana’s nonprofit community is part of the economic engine driving the state’s economic comeback. Nearly 7,500 nonprofit organizations are located in the state. They employ 11.4% of the state’s workforce and pay more than $2.1 billion in wages.
An unprecedented bill is headed to the governor’s desk that would devastate the charitable sector by drying up resources for some nonprofits. Gov. Greg Gianforte should consider whether signing it would undermine his commitment to supporting Montana’s comeback.
A last-minute amendment to Senate Bill 278 penalizes any nonprofit charity that takes a stand for or against a “government action” by taxing the costs associated with challenging or defending such action. The amendment also forces any charitable organization that challenges a “government action” in court to expose to the state the names and addresses of hard-working Montanans—and Americans living elsewhere—who gave more than $50 to the organization in the past 12 months. In other words, freedom of speech and association in Montana will come with a steep price tag if the governor signs this bill.
What would this mean for Montanans? There would also be fewer advocates ready to stand with the government when it takes positive actions for Montanans that are opposed by entrenched defenders of the status quo.
Montanans, who wish to give anonymously, would simply not donate to any group challenging the federal government for fear of public disclosure on a state list and potential violent reprisal resulting from their private beliefs becoming public.
Most importantly, this provision is unconstitutional. The First Amendment to the Constitution grants all Americans freedom of speech and association, including the right to associate privately if so desired. State disclosure laws should not infringe on this right. Over 60 years ago, the Supreme Court held that the state of Alabama could not force the National Association for the Advancement of Colored People (NAACP) to turn over its membership lists to the government. A unanimous decision held that releasing this information would expose the group’s members to “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility” and, thus, restrain “their right to freedom of association.” Today, philanthropic donors, like members of the NAACP in the 1950s, have reason to fear reprisal if their association becomes public. As a result, forcing any nonprofit that speaks up against a government action to turn over their donor lists to the government would discourage giving.
The amendment to SB 278 would affect more than just those nonprofits who work primarily in the public policy space. Many universities and direct social service organizations take positions on “government actions” that impact their work. Nonprofits cannot afford to lose donors or give up their tax-exempt status. When organizations lose their financial support, our civil society and the citizens those charities help will suffer.
If enacted, any nonprofit working to change or challenge public policy would be cut off at the knees. And we will all be worse off for it.