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.
