No. 16-743 

================================================================ 

In The 

Supreme Court of the United States 

---------------------------------  --------------------------------- 

INDEPENDENCE INSTITUTE, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

---------------------------------  --------------------------------- 

On Appeal From The 

United States District Court 

For The District Of Columbia 

---------------------------------  --------------------------------- 

BRIEF OF THE PHILANTHROPY 

ROUNDTABLE AS AMICUS CURIAE

IN SUPPORT OF APPELLANT 

---------------------------------  --------------------------------- 

ALEXANDER L. REID

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue, 

 N.W. 

Washington, DC 20004 

T. 202.739.3000 

F. 202.739.3001 

ALLYSON N. HO

Counsel of Record

JOHN C. SULLIVAN

MORGAN, LEWIS &BOCKIUS LLP

1717 Main Street, Suite 3200

Dallas, Texas 75201 

T. 214.466.4000 

F. 214.466.4001 

allyson.ho@morganlewis.com

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 

WWW.COCKLELEGALBRIEFS.COM 
i 

QUESTION PRESENTED

 Whether Congress may require organizations engaged in the genuine discussion of policy issues, unconnected to any campaign for office, to report to the 

Federal Election Commission, and publicly disclose 

their donors, pursuant to the Bipartisan Campaign 

Reform Act of 2002. 
ii 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED ..................................... i 

TABLE OF CONTENTS ........................................ ii 

TABLE OF AUTHORITIES ................................... iii 

INTEREST OF AMICUS CURIAE ........................ 1 

INTRODUCTION AND SUMMARY OF ARGUMENT .................................................................. 2 

ARGUMENT ........................................................... 6 

 I. The Forced Disclosure Of Non-Profit Donor 

Names Implicates Serious Constitutional 

And Practical Concerns ............................... 6 

 II. Breaching Donor Anonymity For 501(c)(3) 

Organizations Is Unconstitutionally Overbroad ............................................................. 14 

CONCLUSION ....................................................... 16 
iii 

TABLE OF AUTHORITIES 

Page 

CASES

Buckley v. Valeo, 424 U.S. 1 (1976) ............................... 3 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 

(2007) ....................................................................... 15 

McConnell v. FEC, 540 U.S. 93 (2003) ........................ 15 

NAACP v. Alabama ex rel. Patterson, 357 U.S. 

449 (1958) .............................................. 4, 5, 7, 13, 14 

Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518 

(1819) ......................................................................... 7 

OTHER AUTHORITIES

Alexander Reid, Renegotiating the Charitable 

Deduction, 71 TAX ANALYSTS 21 (2013) ............... 8, 13 

ALEXIS DE TOCQUEVILLE, 3 DEMOCRACY IN AMERICA (1840) ................................................................. 12 

Ben Gose, Anonymous Giving Gains in Popularity 

as the Recession Deepens, THE CHRONICLE OF PHILANTHROPY (Apr. 30, 2009), https://philanthropy. 

com/article/Anonymous-Giving-Gains-in/162627 ....... 8, 9 

Claire Cain Miller, Laurene Powell Jobs and Anonymous Giving in Silicon Valley, NY TIMES, 

BITS (May 24, 2013, 8:05 AM), http://bits.blogs. 

nytimes.com/2013/05/24/laurene-powell-jobs-andanonymous-giving-in-silicon-valley/?_r=0 .................... 9 

CONOR O’CLERY, THE BILLIONAIRE WHO WASN’T

(2007) ................................................................... 9, 10 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

ELEANOR T. CICERCHI & AMY WESKEMA, SURVEY

ON ANONYMOUS GIVING, CENTER ON PHILANTHROPY, INDIANA UNIVERSITY—PURDUE UNIVERSITY AT INDIANAPOLIS (1991) ..................................... 10 

ERICA BORNSTEIN, DISQUIETING GIFTS: HUMANITARIANISM IN NEW DELHI (2012) ................................ 7 

Giving USA: 2015 Was America’s Most-Generous 

Year Ever, Giving USA (June 13, 2016), 

https://givingusa.org/giving-usa-2016/ ..................... 3 

GIVING WELL: THE ETHICS OF PHILANTHROPY

(Patricia Illingworth et al. eds., 2011) .................... 11 

Jennifer Rose Mercieca, The Culture of Honor: 

How Slaveholders Responded to the Abolitionist Mail Crisis of 1835, 10 RHETORIC & PUBLIC

AFFAIRS 51 (2007) ...................................................... 8 

John E. Tyler III, So Much More Than Money: 

How Pursuit of Happiness and Blessings of 

Liberty Enable and Connect Entrepreneurship 

and Philanthropy, 12 INT’L REV. OF ENTREPRENEURSHIP 51 (2014) .................................................. 13 

JULIE SALAMON, RAMBAM’S LADDER: A MEDITATION

ON GENEROSITY AND WHY IT IS NECESSARY TO

GIVE (2003) ................................................................ 6 

LILLY FAMILY SCHOOL OF PHILANTHROPY, INDIANA

UNIVERSITY—PURDUE UNIVERSITY AT INDIANAPOLIS, GIVING USA 2015: THE ANNUAL REPORT

ON PHILANTHROPY FOR THE YEAR 2015 (2016) ........... 3 

Matthew 6:2 .................................................................. 6 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Paul G. Schervish, The sound of one hand clapping: the case for and against anonymous 

giving, 5 VOLUNTAS: INT’L J. OF VOLUNTARY & 

NONPROFIT ORGS. 1 (1994) ....................................... 11 

Qur’an, Surat Al-Baqarah 2:271 .................................. 6 

Susan Hertog, Partners Against Misery, PHILANTHROPY (Fall 2016), http://www.philanthropy 

roundtable.org/file_uploads/PHIL_FALL16_ 

24.pdf ............................................................................. 10, 11 

U.S. TRUST & INDIANA UNIVERSITY LILLY FAMILY

SCHOOL OF PHILANTHROPY, 2016 U.S. TRUST

STUDY OF HIGH NET WORTH PHILANTHROPY

REPORT (Oct. 2016), http://www.ustrust.com/ 

publish/content/application/pdf/GWMOL/USTp_ 

ARMCGDN7_oct_2017.pdf ........................................ 10 

William D. Andrews, Personal Deductions in 

an Ideal Income Tax, 86 HARV. L. REV. 309 

(1972) ....................................................................... 13 
1 

INTEREST OF AMICUS CURIAE1

Amicus curiae The Philanthropy Roundtable is a 

leading network of charitable donors. Its 650 members 

include individual philanthropists, family foundations, 

and other private grantmaking institutions. Amicus’s 

mission is to foster excellence in philanthropy, to protect philanthropic freedom, to assist donors in achieving 

their philanthropic intent, and to help donors advance 

liberty, opportunity, and personal responsibility in the 

United States and abroad. 

Amicus seeks to advance the principles and preserve the rights of private giving, including the freedom 

of individuals and private organizations to determine 

how and where to direct charitable assets—while also 

seeking to reduce or eliminate government regulation 

that would diminish private giving or limit the diversity of charitable causes Americans support. 

 As an organization whose members include individual charitable donors and private grantmaking institutions, amicus has a substantial interest in the 

outcome of this case, which implicates not only donor 

privacy, but also donor freedom to choose which organizations and causes to support. 

1

 Pursuant to this Court’s Rule 37.6, amicus affirms that no 

counsel for a party authored this brief in whole or in part, that no 

such counsel or party made a monetary contribution intended to 

fund the preparation or submission of this brief, and that no person other than amicus and its counsel made such a monetary contribution. Pursuant to this Court’s Rule 37.2, counsel of record 

for appellant and appellee were timely notified of and consented 

to the filing of this amicus brief. 
2 

 While many donors are happy to see their contributions publicized, a sizable number will not give unless they can keep their donations confidential. Their 

reasons are many and varied. Some follow the teachings of the 12th-century Jewish theologian Maimonides, 

who believed that the second highest form of giving 

was “to give to the poor without knowing to whom one 

gives, and without the recipient knowing from whom 

he received.” Others take their lead from the Gospel of 

Matthew, where Jesus taught that “when you give to 

the needy, sound no trumpet before you” and “do not let 

your left hand know what your right hand is doing, so 

that your giving may be in secret.” Still others wish to 

shield their families or businesses from unwanted and 

potentially dangerous publicity, or to avoid being bombarded with unwelcome solicitations. And some want 

the freedom to support controversial issues without 

fear of reprisal or ostracism. Given these important 

concerns—each of which is implicated by the district 

court’s decision in this case—amicus respectfully requests that jurisdiction be noted and the judgment reversed. 

---------------------------------  ---------------------------------

INTRODUCTION AND 

SUMMARY OF ARGUMENT 

Privately funded efforts to solve social problems, 

enrich culture, and strengthen society are among the 

most significant American undertakings, and have 

been for hundreds of years. The United States is now 

among the most generous nations in the world when it 
3 

comes to charitable giving, with gifts by individuals 

(including bequests) totaling nearly $373 billion in 

2015—a record-breaking sum. Giving USA: 2015 Was 

America’s Most-Generous Year Ever, Giving USA (June 

13, 2016), https://givingusa.org/giving-usa-2016/ (citing LILLY FAMILY SCHOOL OF PHILANTHROPY, INDIANA

UNIVERSITY—PURDUE UNIVERSITY AT INDIANAPOLIS, GIVING USA 2015: THE ANNUAL REPORT ON PHILANTHROPY

FOR THE YEAR 2015 (2016)). Over one million nonprofit 

organizations benefited from those donations, including religious organizations, schools, hospitals, foundations, food pantries, and homeless shelters. Ibid.

 America’s culture of charitable giving has flourished because its legal framework—including the individual deduction for charitable donations and the 

income tax exemption for charitable organizations—

marks a critically important boundary between government and civil society. Traditionally included within 

the protection of this framework are non-profit groups 

whose purpose is to speak on issues of public importance. And even those charities that do not have issueadvocacy as a primary purpose may likely wish to 

speak from time to time on public policy concerns related to their mission—say, for example, a food bank 

that wishes to speak out on the subject of federal Supplemental Nutrition Assistance Program (SNAP) benefits. While this Court held in Buckley v. Valeo, 424 

U.S. 1, 44 (1976), that the government may demand information about an organization’s donors if the group 

exists for the primary purpose of electing or defeating 

candidates for public office, this expansion of state 
4 

power should not include groups that merely seek to 

inform or persuade the public on issues—the realm of 

many 501(c)(3) organizations. 

 This is true even if the 501(c)(3) mentions a particular public office holder or candidate in the course 

of highlighting its cause to the general public. After 

all, the organization—as a condition of its tax-deductible gifts—cannot engage in political advocacy for a particular candidate. The IRS can strip tax-exempt status 

from 501(c)(3)s that violate the prohibition on campaign activity. There is, therefore, no need to apply the 

disclosure requirement of the Bipartisan Campaign 

Reform Act (McCain-Feingold) to 501(c)(3)s, and doing 

so prevents those groups from engaging in speech that 

should be protected. To hold otherwise runs afoul of 

this Court’s precedent and contrary to the associational rights of organizations and the donors or members that comprise them. See NAACP v. Alabama ex 

rel. Patterson, 357 U.S. 449, 460 (1958). 

 In NAACP v. Alabama, this Court unanimously 

ruled that “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect 

of the ‘liberty’ assured by the Due Process Clause of 

the Fourteenth Amendment.” Ibid. The Court therefore held that the State of Alabama could not compel 

the NAACP to reveal the names and addresses of its 

members because doing so would expose its supporters 

“to economic reprisal, loss of employment, threat of 

physical coercion, and other manifestations of public 

hostility” and thereby restrain “their right to freedom 

of association.” Id. at 462. This case implicates the 
5 

same concerns—and the same vital interests are at 

stake. 

 Most important is that many donors will not give 

unless they can keep their donations confidential. 

Many donors, for example, give anonymously out of 

deeply held religious convictions. Some do so to live a 

more private life and avoid broadcasting their wealth 

to the world. Others do so for the same reasons articulated by this Court in NAACP v. Alabama—to 

avoid “economic reprisal, loss of employment, threat of 

physical coercion, and other manifestations of public 

hostility” associated with supporting unpopular or controversial causes. Ibid. And still more—the majority, 

in fact—do so to avoid unwanted solicitations by other 

organizations to which they would rather not contribute. Forced disclosure of donor names threatens serious unintended consequences for individual donors 

and non-profit organizations across the nation. 

 This Court should note probable jurisdiction to restore the critical boundary between government and 

non-profits, and to avoid the harmful consequences 

that are likely to flow if the district court’s decision is 

permitted to stand—i.e., chilling activity that is stringently protected by the Constitution and exceedingly 

important to American civil society. 

---------------------------------  ---------------------------------

 
6 

ARGUMENT 

I. The Forced Disclosure Of Non-Profit Donor 

Names Implicates Serious Constitutional And 

Practical Concerns. 

The disclosure of donor names compelled by the 

government here is not only contrary to this Court’s 

teaching on genuine “issue” speech, see Jur. Statement 

10-23, but also harmful to a significant component of 

charitable giving—donor anonymity. The intrusion 

into individuals’ charitable giving has both constitutional dimensions—by unnecessarily impinging on the 

freedom of religion, speech, and association—and serious practical implications. 

 Donors may have any number of legitimate reasons for desiring to remain anonymous—including motivations that implicate deeply held moral or religious 

beliefs. For example, Jewish donors may request anonymity according to Maimonides’s teaching that the 

second highest form of tzedakah (“charity” or “righteousness”) is to give anonymously to an unknown recipient, and the third highest is to give anonymously 

to a known recipient. See, e.g., JULIE SALAMON, RAMBAM’S

LADDER: A MEDITATION ON GENEROSITY AND WHY IT

IS NECESSARY TO GIVE 6-7, 109-26, 127-46 (2003). 

Christian donors may request anonymity consistent 

with Matthew’s admonition that “when you give to the 

needy, do not announce it with trumpets” and “do not 

let your left hand know what your right hand is doing, 

so that your giving may be in secret.” Matthew 6:2. 

Muslims have a similar concept, called sadaqah. 

Qur’an, Surat Al-Baqarah 2:271 (“If ye disclose (acts 
7 

of ) charity, even so it is well, but if ye conceal them, 

and make them reach those (really) in need, that is 

best for you.”). And Hindu donors may choose to give 

an anonymous gift, or gupt dān, as an act of both selfrenunciation and generosity. See ERICA BORNSTEIN, 

DISQUIETING GIFTS: HUMANITARIANISM IN NEW DELHI

26-27 (2012). 

 Donors may also prefer to give anonymously for 

the same important reasons articulated by this Court 

in NAACP v. Alabama—to avoid the threat of public 

censure, condemnation, and even physical harm to 

themselves and their families that can be associated 

with giving to unpopular or controversial causes. This 

Court ruled in that case that the Fourteenth Amendment protected the NAACP’s right to keep its membership list confidential. Revealing that information, the 

Court warned, “[was] likely to affect adversely the ability of [the NAACP] and its members to pursue their 

collective effort to foster beliefs which they admittedly 

have the right to advocate.” NAACP v. Alabama, 357 

U.S. at 462-63. And as the Court recognized long 

before, under our Constitution the government cannot 

direct private associations to implement the government’s preferred policies. Trs. of Dartmouth Coll. v. 

Woodward, 17 U.S. 518, 660 (1819) (rejecting attempt 

by the State of New Hampshire to seize control of Dartmouth College, a private university established by 

charitable contributions). 

 Indeed, there are strong historical reasons for protecting donor privacy and freedom—both for the donors’ sake as well as the public good. When President 
8 

Andrew Jackson was inflamed by abolitionist successes, 

for example, he tried to use postmasters to expose abolitionist sympathizers to public ridicule, pressure, and 

threats. See Jennifer Rose Mercieca, The Culture of 

Honor: How Slaveholders Responded to the Abolitionist 

Mail Crisis of 1835, 10 RHETORIC & PUBLIC AFFAIRS 51, 

66 (2007). 

 And the history of philanthropy in America is rich 

with examples of individuals and organizations acting 

where government has refused to act, or in ways the 

government simply does not like. It was charitable giving by individuals that educated Native Americans at 

Dartmouth and Hamilton colleges; that set up thousands of schools for African-Americans during the Jim 

Crow era; and that eliminated hookworm in the United 

States when some state governments refused to acknowledge that the parasites were endemic among 

their residents. See Alexander Reid, Renegotiating the 

Charitable Deduction, 71 TAX ANALYSTS 21, 27 (2013). 

 In addition to exercising their freedom of religion, 

speech, and association, donors may also choose to give 

anonymously for important practical reasons. For example, during times of economic recession, anonymous 

giving increases significantly as donors “who have suffered little, or even prospered, during the downturn” 

may not want to appear insensitive to the plights of 

others less fortunate. Ben Gose, Anonymous Giving 

Gains in Popularity as the Recession Deepens, THE CHRONICLE OF PHILANTHROPY (Apr. 30, 2009), https://philanthropy. 

com/article/Anonymous-Giving-Gains-in/162627. During the recent severe downturn, for instance, the North 
9 

Texas Food Bank—which distributes food to charities 

in 13 counties—received its first-ever $1 million gift in 

December 2009 from a woman who asked to remain 

anonymous. Ibid. “ ‘She said she would not have been 

able to look herself in the mirror over the holidays had 

she not made the gift,’ ” the food bank’s chief executive 

was quoted as saying about the anonymous donor. Ibid.

 Donors may also choose to give anonymously out 

of concern that the identity of the donor might overshadow the efforts of the charity. See, e.g., Claire Cain 

Miller, Laurene Powell Jobs and Anonymous Giving in 

Silicon Valley, NY TIMES, BITS (May 24, 2013, 8:05 AM), 

http://bits.blogs.nytimes.com/2013/05/24/laurene-powelljobs-and-anonymous-giving-in-silicon-valley/?_r=0 (quoting Ms. Powell Jobs, the widow of Apple founder Steve 

Jobs, as saying “[w]e’re really careful about amplifying 

the great work of others in every way that we can, and 

we don’t like attaching our names to things”). 

 Anonymity also may encourage giving by donors 

who might otherwise be uncomfortable making a public showing of wealth and who desire to lead a more 

private life. Chuck Feeney, for example, donated nearly 

his entire fortune of around $4 billion anonymously. 

See CONOR O’CLERY, THE BILLIONAIRE WHO WASN’T

327-28 (2007). As Feeney has explained, “ ‘I had one 

idea that never changed in my mind—that you should 

use your wealth to help people. I try to live a normal 

life, the way I grew up * * * * I set out to work hard, 

not to get rich.” Id. at 324. In fact, Feeney did not 

reveal his billion-dollar philanthropy until years later, 
10 

and then only reluctantly, when the release of documents associated with a business transaction would 

likely have disclosed his donations. Ibid. 

 And, of course, giving anonymously protects donors from unwanted solicitations from organizations to 

which they would rather not donate. A study by the 

Center on Philanthropy at Indiana University identified the desire to minimize solicitations from other organizations as the most frequently cited motivation for 

giving anonymously (followed by “deeply felt religious 

conviction,” and next by “a sense of privacy, humility, 

[or] modesty”). ELEANOR T. CICERCHI & AMY WESKEMA, 

SURVEY ON ANONYMOUS GIVING, CENTER ON PHILANTHROPY, INDIANA UNIVERSITY—PURDUE UNIVERSITY AT

INDIANAPOLIS 9-10 (1991); see also U.S. TRUST & INDIANA UNIVERSITY LILLY FAMILY SCHOOL OF PHILANTHROPY, 2016 U.S. TRUST STUDY OF HIGH NET WORTH

PHILANTHROPY REPORT 40 (Oct. 2016), http://www.ustrust. 

com/publish/content/application/pdf/GWMOL/USTp_ 

ARMCGDN7_oct_2017.pdf (noting that 83 percent of 

high net-worth donors consider privacy and anonymity 

important in their giving). 

 The decision to give anonymously usually reflects 

a number of motivations. One prominent example is 

the establishment of a New York City charity to aid immigrants in the late nineteenth and early twentieth 

centuries. See Susan Hertog, Partners Against Misery

25, PHILANTHROPY (Fall 2016), http://www.philanthropy 

roundtable.org/file_uploads/PHIL_FALL16_24.pdf. 

Philanthropist Jacob Schiff—one of America’s most 

successful financiers—formed an alliance with Lillian 
11 

Wald, a debutante turned nurse, to provide home 

health solutions to families living in egregious conditions in the City’s tenements. Schiff ’s support was 

anonymous both because of his religious convictions, 

which were tied to the teachings of Maimonides, and 

the social and legal constraints of the time that discouraged men from entering into partnerships with 

women. See id. at 24-26. Although Schiff ’s partnership with Wald and his financial support were unknown until decades after their deaths, “the work he 

made possible was admired across the country * * * 

and Wald was held in broad esteem.” Id. at 27-28. The 

financial platform Schiff provided enabled Wald to 

command the attention of male politicians and leaders 

who normally would not have listened to a woman. 

Ibid. “Cutting through the complex social and political 

diversity * * *, their partnership remains an enduring 

paradigm for effective private philanthropy.” Id. at 28. 

 Of course, many donors choose to give publicly for 

similarly compelling reasons. See, e.g., GIVING WELL: 

THE ETHICS OF PHILANTHROPY 202-17 (Patricia Illingworth et al. eds., 2011) (explaining that public giving 

helps create a culture of giving); see also Paul G. 

Schervish, The sound of one hand clapping: the case for 

and against anonymous giving, 5 VOLUNTAS: INT’L J. OF

VOLUNTARY & NONPROFIT ORGS. 1, 3 (1994) (noting that 

donors recognize reasons both for and against anonymous giving). But that is precisely the point—it is a 

choice for donors to make. 

 And the freedom enjoyed by private individuals 

and associations in giving for public benefit has been a 
12 

hallmark of American civil society since the Founding. 

Writing in 1831, Tocqueville observed that “[t]here is 

nothing, in my opinion, that merits our attention more 

than the intellectual and moral associations of America.” ALEXIS DE TOCQUEVILLE, 3 DEMOCRACY IN AMERICA

902 (1840). Rather than wait for government to act in 

the public interest, Americans have long created nonprofit associations to act in furtherance of those interests. “In democratic countries,” Tocqueville wrote, “the 

science of association is the mother science; the progress of all the rest depends upon its progress,” he concluded. Ibid.

 Today, through charitable contributions, Americans exercise some of their most cherished constitutionally protected rights—creating organizations that 

engage in freedom of speech, freedom of association, 

and freedom of religion. In this way, charitable giving 

is not just a “sweetener” of our quality of life. It is, as 

Tocqueville saw, fundamental not only to our civil society but also to our republican form of government. 

Just as the principles of federalism constrain the federal government’s power to tax the states and the 

states’ power to tax the federal government, so too do 

the individual freedoms of speech, association, and religion that the Constitution guarantees to Americans 

constrain government’s unwarranted intrusion into 

charitable giving without a compelling interest and 

narrow tailoring. 

 If the district court’s decision is permitted to stand, 

it will needlessly erode donor freedom and privacy, and 
13 

thereby put an important component of charitable giving at serious risk. Additionally, a dangerous precedent will be set for government intrusion into 

charitable organizations across the board. 

 This can be seen by examining the tax deduction. 

Charitable gifts are not consumption because the donor receives nothing in return for the gift; such gifts 

are therefore excluded from the economic definition of 

income. See William D. Andrews, Personal Deductions 

in an Ideal Income Tax, 86 HARV. L. REV. 309, 365-66 

(1972) (noting that the charitable-contribution deduction is necessary to ensure accurate measurement of a 

donor’s income). But the deduction does not exist to 

“subsidize” philanthropy, though its good effects are 

many—rather, it exists to shield private donations 

from government interference (through taxation) with 

individual choices about how best to further the public 

interest. See John E. Tyler III, So Much More Than 

Money: How Pursuit of Happiness and Blessings of 

Liberty Enable and Connect Entrepreneurship and 

Philanthropy, 12 INT’L REV. OF ENTREPRENEURSHIP 51, 

68-74 (2014); Reid, Renegotiating the Charitable Deduction, supra, at 27. 

 So too with donor confidentiality, which, as this 

Court recognized in NAACP v. Alabama, similarly protects individuals from government overreach and interference with the exercise of constitutional rights. 

The ability to give anonymously—much like the ability 

to vote anonymously—serves as an important check 

on government power. The government’s claim of entitlement to donor identities thus implicates the same 
14 

fundamental concerns articulated in NAACP v. Alabama, and this Court’s jurisdiction is needed to keep 

government within its proper bounds, protect donor 

freedom and privacy, and prevent further unwarranted 

incursions into private charitable giving that will chill 

the exercise of First Amendment freedoms and upset 

long-settled donor expectations of privacy and confidentiality. 

II. Breaching Donor Anonymity For 501(c)(3) 

Organizations Is Unconstitutionally Overbroad. 

As the jurisdictional statement explains (at 23-

35), the government has failed to articulate a reason 

for the disclosure of donor names that matches the interest at stake here. In the absence of a compelling 

interest and the least restrictive means of accomplishing that interest, no government agency should compel 

a non-profit organization to identify its donors. 

Amicus recognizes the government’s legitimate interest in allowing the IRS to identify substantial contributors to certain non-profits on a confidential basis 

through limited disclosure requirements, using these 

transparency measures to help prevent donors from 

claiming fraudulent deductions, protect charities 

against self-dealing, and ensure that charitable grants 

support genuinely charitable organizations. Donor 

names, for instance, are required to ensure compliance 

with discrete, technical provisions of the Internal Revenue Code. This is a far cry, however, from applying 
15 

McCain-Feingold to 501(c)(3) organizations seeking 

only to speak on genuine public issues, treating those 

organizations as if they were campaigns or PACs. Cf. 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 457 (2007) 

(Roberts, C.J., controlling opinion) (upholding asapplied challenge to McCain-Feingold criminal provision 

that sought to prevent electioneering advertisements 

made within a certain time before an election because 

the ads at issue were “issue advocacy” and not the 

“ ‘functional equivalent’ of express campaign speech”); 

McConnell v. FEC, 540 U.S. 93, 206 n.88 (2003) (“[W]e 

assume that the interests that justify the regulation of 

campaign speech might not apply to the regulation of 

genuine issue ads.”). 

 Indeed, under the decision below, a non-profit focused on free-speech rights would have been subject to 

disclosure if, in 2016 when Senators McCain and 

Feingold were running for office, the non-profit simply 

communicated with the public in Arizona or Wisconsin 

regarding the McCain-Feingold Act and its impact on 

free speech, or if the non-profit merely used the term 

“McCain-Feingold”— even if the communication were 

otherwise utterly devoid of anything that might be construed as connected to the election. 

 The government overreach here is not only impermissible, but also unnecessary. As a 501(c)(3) organization, Independence Institute—unlike a campaign or 

a PAC—cannot engage in political campaign advocacy. 

See Jur. Statement at 33-35. While a 501(c)(3) could 

misuse its privilege and advocate directly for the election or defeat of a political candidate for office, that 
16 

would be punishable by the IRS. If the organization is 

not engaged in such activity, there would be no point 

for the McCain-Feingold disclosure. Forcing groups 

such as the Independence Institute to disclose donors 

to the FEC—and therefore to the public at large—is 

thus unnecessary and cannot survive the appropriate 

level of scrutiny under this Court’s precedent. 

 Because the district court failed to apply that level 

of scrutiny properly, and because that failure has serious practice implications for charitable giving throughout the country, this Court’s jurisdiction is needed now 

to prevent government overreach, protect donor privacy, and preclude the chilling of First Amendment 

rights. 

---------------------------------  ---------------------------------

CONCLUSION 

For the foregoing reasons, this Court should note 

probable jurisdiction and reverse the District Court. 

Respectfully submitted, 

ALEXANDER L. REID

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue, 

 N.W. 

Washington, DC 20004 

T. 202.739.3000 

F. 202.739.3001 

ALLYSON N. HO

Counsel of Record

JOHN C. SULLIVAN

MORGAN, LEWIS &BOCKIUS LLP

1717 Main Street, Suite 3200

Dallas, Texas 75201 

T. 214.466.4000 

F. 214.466.4001 

allyson.ho@morganlewis.com