The Supreme Court and The Right of Freedom of Association

| June 14, 2021

On April 26, 2021, the United States Supreme Court heard arguments on a case that may redefine the Constitutional right of freedom of association.  The facts of the case present a very narrow question, but the potential of a landmark ruling brought amicus briefs (legal briefs by private or public organizations who ask to have their positions considered) by over 250 non-profit organizations, plus voting rights groups, members of the United States House of Representatives, United States Senators, State governments, and (by invitation of the Court) the Solicitor General of the United States.


The case is Americans for Prosperity Foundation (AFPF) v. Rodriguez, and it arises from the challenge of two non-profits (AFPF and the Thomas More Law Center) against a regulation issued by the Attorney General of the State of California. The regulation requires that non-profit entities that solicit donations in California must annually file with the State a list of all of its donors who contributed more than $5,000 in a year.

In 1958, the Supreme Court had decided the landmark case of NAACP v. Alabama, in which a unanimous court held that the State of Alabama could not require the NAACP to turn over its list of members in that state. The Court there determined that (i) there was a constitutional right of freedom of association, drawn both from the First Amendment’s stated right to assemble and from the Fourteenth Amendment’s stated right that individual liberty cannot be restricted without due process of law; and (ii) that the right of association includes a right to assemble privately: “This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.” Compelled disclosures of affiliation with groups engaged in public advocacy “may constitute … [an] effective restraint on freedom of association” creating a chilling effect on the willingness of persons to involve themselves in publically unpopular causes.


The State of California maintained that it was justified in collecting this information because (i) all non-profit entities already had to disclose their donors to the Internal Revenue Service; (ii) that it needed the information for law enforcement to prevent fraud by non-profits; and (iii) the State’s Attorney General was obligated to keep such information private.

The non-profits (supported by amicus briefs including the NAACP) responded that (i) disclosure to the IRS was limited to matters of tax collection, and was mandated by Congress in legislation (as opposed to a regulation imposed by the State Attorney General without legislative approval); (ii) it was not seeking this information from non-profit entities suspected of wrongdoing but from each and every one; and (iii) California had a terrible record of leaks and hacks that had made the information public.


The case seemed to be one which would be a straight-forward application of precedent to invalidate the California regulation – except for one important development of recent years: so-called “Dark Money.”

In 2010, the Supreme Court issued a 5 – 4 decision in the now famous case of Citizens United v. Federal Election Commission, in which the Court declared unconstitutional as a restriction of free speech any limitations on independent expenditures in political campaigns.    In other words, while corporations and wealthy individuals are limited in what they can contribute to a candidate or a political party, there is no limit on what they can spend within their own political action committees to advocate for a candidate or for a political position.

One rationale for the Citizens United decision was the Court’s reliance on “transparency”, saying “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable.”  In other words, the public can quickly find out just who is advancing a particular position, and make its judgment accordingly.

But in the 10 years since Citizens United was decided, persons interested in influencing the public debate have taken to forming non-profit organizations, and then contributing heavily to them.  A non-profit cannot endorse a particular candidate, but it can take positions on public issues both in elections and in lobbying.  Billions of dollars are being funneled through such newly-created entities and into the political arena.

One such organization is the Americans for Prosperity Foundation.  It primary contributors are the Koch brothers, who have been both lionized and vilified for their active advocacy of conservative political causes.  Indeed, in this case there was pressure on Justice Amy Coney Barrett to recuse herself because the AFPF had publically advocated extensively for her confirmation to the Court (Justice Barrett did not recuse herself).

The question (not formally asked but clearly the specter hanging over the case) is whether the corporations and private individuals whose involvement in election campaigns are to be held accountable by transparency, can now avoid that transparency by channeling their efforts through self-created non-profit organizations, where donors are constitutionally protected from public disclosure?

The case before the Supreme Court case will not answer that question, but it could frame the issue for the next round of litigation.  That was clearly on the minds of Justices during the questioning of the lawyers.  Justice Stephen Breyer went so far as to call this case “a stalking horse” for election disclosure laws.


There are several ways the Court can issue a limited opinion that protects the interests of non-profit entities in assuring confidentiality for their donors, without making a precedent that will impact the question of election law disclosures.  Or, the Court can declare wide ranging principles that could change the way non-profits operate in the public forum.

Regardless of the outcome, non-profits need to know that the more they venture into political issues, the greater will be the public scrutiny on its activities.

A decision from the Court is expected at the end of the term later this year.

Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.