Trevor Thompson (J.D. 2022, Cornell), Note, Democracy Dies in … Charitable Donations? Unpacking the Supreme Court's Decision in Americans for Prosperity v. Bonta, 31 Cornell J. L. & Pub. Pol'y 499 (2022): 

There are a few clear takeaways from the Court's decision in Americans for Prosperity v. Bonta. First, courts examining disclosure laws under exacting scrutiny must now determine whether those laws are narrowly tailored to serve a sufficiently important governmental interest. Indeed, the First Circuit confirmed this development in Gaspee Project v. Mederos, noting that the Court's decision in Americans for Prosperity heightened the exacting scrutiny standard by requiring that all challenged disclosure laws be narrowly tailored to the interests they promote. 

Next, state officials must be prepared to articulate a substantially compelling governmental interest for their state's donor-disclosure laws if a litigant decides to challenge one of those laws in state or federal court. Finally, state laws that require non-profit organizations to submit Schedule B forms as a condition of charitable registration are unlikely to pass constitutional muster. Recognizing this, the attorneys general in New Jersey and New York have stopped collecting Schedule B forms, and Hawaii's Schedule B law is now also at risk. 

This case has, however, posed more questions than it answered. For starters, the reach of this case is certainly not clear in the non-profit realm. As Professor Joseph Mead points out, it remains to be seen whether the Court's decision will be limited by a distinction it drew between regimes that specifically target charities that claim tax-exempt status and regimes such as those in California, which target charities that merely operate and raise funds in a state. Chief Justice Roberts said that both of these entities could raise issues that were not presented in the case. Professor Colinvaux, a scholar of nonprofit law at Catholic University Columbus School of Law, speculates that the decision will simply make the job of under-resourced regulators harder. He points out that many states have low budgets to enforce charitable fraud, and without the ability to justify gathering information, those enforcement rates will likely continue to drop. This will, according to Professor Colinvaux, only embolden fraudsters who might otherwise have been deterred by compelled disclosure requirements.

The implications of this case are especially unclear-and potentially most devastating-for the constitutionality of campaign contribution laws. Professor Rick Hasen touched on this troubling possibility in a piece for the New York Times. Courts review campaign contribution laws under exacting scrutiny, so now that exacting scrutiny requires narrow tailoring, lower courts may find that some campaign contribution laws are not narrowly tailored to prevent corruption or the appearance of corruption. Alternatively, they may simply decide that these laws do not provide voters with enough valuable information to justify their deterrent effects on potential donors. Whether parties will bring these claims, and whether the federal courts will be receptive to them, is harder to predict. The First Circuit's decision in Gaspee, which actually upheld the constitutionality of a donor disclosure law under the Court's new version of exacting scrutiny, is certainly a positive sign. But given this conservative Supreme Court's general hostility to restrictions on election regulations—Professor Hasen more appropriately characterizes them as democracy-enhancing laws—the possibility that this Court will invalidate some laws that require candidates to disclose their donors is a realistic and troubling one.

Back in 2015, Americans for Prosperity did not give Representative Jeff Welborn an opportunity to speak at the event that it had organized in his district. So as AFP's representatives escorted Representative Welborn out of the building they gathered in, some of his constituents began to question whether AFP had been honest in advertising the meeting as a town hall. After all, town halls typically encourage an open dialogue and open participation, but Americans for Prosperity refused to give a voice to the other side of the debate. Over grumblings and pushback, one of AFP's representatives said that they evidently had "different definitions of a town hall." AFP's decision to exclude Jeff Welborn from its "town hall," like its refusal to comply with California's Schedule B law or its behind-the-scenes effort to hobble Wisconsin's labor unions, inevitably forces us to consider whether AFP has something to hide. Indeed, Jeff Welborn may very well have benefited from hearing AFP's thoughts on Medicaid expansion, and California made it state law to keep its charities' Schedule B forms confidential soon after AFP first filed suit in federal court.

Perhaps AFP has nothing to hide; perhaps it really did believe that California's Schedule B law would deter its donors from contributing and that a town hall in Jeff Welborn's district would be better off without Jeff Welborn there. Regardless, the final result in both cases was less information available to the public and less information available to the state officers tasked with ensuring that fraud and corruption don't infiltrate California's charities. If AFP argues next that its members will face retaliation if they have to disclose which candidates they contribute to, the courts may decide to shield certain political contributions from public disclosure. Without the ability to uncover who is funding our elected representatives' campaigns, we will also lack the ability to know who's potentially responsible for the policies that shape our lives. This is not an ideal reality-but it could very well be the reality toward which we are heading.