No more doxxing small donors? SCOTUS ruling for pro-life groups could boost political donations

When the Supreme Court unanimously rebuked New Jersey for trying to unmask donors to pro-life pregnancy centers without facing scrutiny in federal court, saying such demands unambiguously "burden the exercise of First Amendment rights," it may have opened the floodgates to small-dollar donations for political candidates.

Federal Election Commission regulations that require "conduit platforms" for political donations, such as Democrats' ActBlue and Republicans' WinRed, to report the name, address and employment of all donors, regardless of contribution size, look more vulnerable in light of Wednesday's 9-0 ruling for First Choice Women's Resource Centers.

Lawyers for a Republican Party official in Texas challenging the regulations, which contrast with the FEC's $200 threshold for reporting direct contributions to political committees, filed supplemental authorities Friday with the full 5th U.S. Circuit Court of Appeals, arguing the First Choice ruling obliterated a three-judge panel's March ruling against him.

Tarrant County GOP General Counsel Tony McDonald donated $1 to Marianne Williamson for president in 2019 through ActBlue to help her qualify for Democratic primary debates, but "unbeknownst" to McDonald, his $50 donation to an unnamed candidate in 2023 was routed through WinRed, unwillingly identifying him to the public, he told the panel last fall.

McDonald cannot sue because "public disclosure of donor information is not in itself a cognizable injury," the panel ruled March 2.

His "speculative" concern that disclosure of his donations may "adversely impact" his future giving, and imply the county party itself supports a candidate, is far from the "manifestations of public hostility" that NAACP members faced when SCOTUS struck down Alabama's demand that the civil rights group disclose its in-state members, the panel said.

The New Orleans-based federal appellate court has "consistently excluded" such "subjective" chilling effects as grounds for First Amendment legal standing, it said.

"The panel’s requirement that McDonald identify 'some other, more concrete harm such as threats or harassment'" is explicitly nullified by First Choice, Institute for Free Speech senior attorney Charles Miller told the 5th Circuit on behalf of McDonald, quoting the opinion on the "deterrent effect" from any "official demand for private donor information."

"First Choice also directly contradicted the panel’s holding [...] that McDonald wasn’t injured because an alternative donation channel existed," Miller said, quoting the opinion's anatomical aphorism that a "government that takes three limbs but spares the last imposes an injury all the same," as when it restricts how an organization "may interact privately with its donors."

McDonald filed his petition for rehearing by the full court April 16. It approved a friend-of-the-court brief by People United for Privacy Foundation on April 27, two days before SCOTUS ruled in First Choice. 

The foundation brief is notable for its counsel: Erin Hawley, wife of Missouri GOP Sen. Josh Hawley, who won First Choice with the Alliance Defending Freedom but filed the foundation brief with Lex Politica, whose SCOTUS and appellate practice she chairs. Politico called her a "workhorse" relative to her "show pony" husband.

Through ADF, Hawley accused New Jersey Attorney General Jennifer Davenport of wasting no time skirting SCOTUS by asking Essex County Superior Judge Lisa Adubato to "resolve the enforceability" of her predecessor's 2023 subpoena now that SCOTUS has greenlit the pregnancy center's First Amendment lawsuit but not decided its merits.

"There is no basis for this Court to stay its hand while the federal-court litigation proceeds simultaneously," since even First Choice conceded before SCOTUS that staying state proceedings "would be of no help," Davenport told the judge. 

State courts are "equally competent to resolve federal constitutional arguments" and Adubato adjudicating the subpoena "is the most efficient path forward, since this Court, unlike the federal court, can resolve all pending issues," including under state law, Davenport said.

The AG is trying to "fast-track its enforcement proceedings to preempt the federal court’s review," which "disregards" SCOTUS "and underscores the stark reality of this case," that the Garden State has targeted her client solely for "dislike" of its views, Hawley said.

Davenport's office did not answer a query from Just the News for its response to Hawley's claim.

SCOTUS liberals wanted proof of harm to be required, and lost 

The FEC disclosure regulations for conduit platforms are one of the few ways it can currently exercise authority, with President Trump's two nominees still waiting for Senate confirmation to give the commission a four-member quorum.

Its founding statute "requires at least four agreeing votes from commissioners to take various policymaking, regulatory, and enforcement actions," conditions that haven't been met since last fall, according to a Congressional Research Service report in March.

ActBlue could particularly benefit from a block on the FEC regulations, given it set a new record for off-cycle political donations with $1.8 billion facilitated by its platform last year and $568 million in the first quarter, averaging $38 per donation, while facing a congressional investigation into its donor-verification policies and procedures.

Three GOP-led committees accused the platform last month of obstructing their investigation into its reported vulnerability to being used for illegal foreign-national donations, with five top legal personnel invoking their Fifth Amendment right against self-incrimination.

"Should a donation to a candidate of just five dollars – or even less – result in your personal information being posted online for anyone to find?" the Institute for Free Speech asks rhetorically on its page for McDonald's challenge.

Its petition for rehearing, which predated First Choice by 13 days, argues the 5th Circuit panel contradicted the SCOTUS precedent against California's compelled disclosure of Americans for Prosperity Foundation's donors, also cited prominently in First Choice.

It said the FEC legally injures McDonald "each time" his personal information "is revealed to a new person" from its public database, which chills him "from making additional donations."

Beyond not wanting to confuse the public into thinking the Tarrant County GOP supports candidates McDonald financially supported, he "does not want to justify" contributions made for reasons other than supporting candidates, "or have his support presumed because of these small donations," the petition says.

The panel inserted its own condition into the NAACP precedent, which in reality "affords standing to sue" as long as McDonald alleges his "right to associate with others to engage in political speech has been or will be infringed or chilled," McDonald argues. 

It also botched AFP by "merely assumed standing existed in donor privacy cases without so deciding," relegated to a footnote, which "ignores the seriousness with which the Supreme Court takes standing in all First Amendment cases." 

The petition notes Justice Sonia Sotomayor's AFP dissent, joined by liberal Justices Stephen Breyer and Elena Kagan, objected to the high court removing its "decades-long requirement" that "plaintiffs must plead and prove that disclosure will likely expose them to objective harms, such as threats, harassment, or reprisals."

Hawley's brief for People United for Privacy Foundation, which lobbies states for speech-related privacy legislation and also filed in First Choice, emphasized the group's interest in the FEC's "compelled disclosure of minor political contributors" being "subject to meaningful judicial review and held to an appropriately exacting standard of constitutional scrutiny."

The foundation also highlighted Sotomayor's AFP dissent, contrasting its claims with precedents dating to the civil rights era, since which "federal courts have struggled to meaningfully protect the right of Americans to join together and engage in 'effective advocacy.'" 

The 1960 Bates precedent deemed both "subtle government interference" and "heavy-handed frontal attack" as unconstitutional actions, and the court has never required plaintiffs to demonstrate "follow-on harms" resulting from their resistance to a "state demand for constitutionally protected information," the brief says. 

The AFP majority emphasized chilling effects are particularly acute "in the 21st century and seem to grow with each passing year, as anyone with access to a computer can compile a wealth of information about anyone else," even "the school attended by his children," the foundation said.