Right of Private Association Takes Hit Under NY’s Schneiderman

By Mark Fitzgibbons | March 8, 2018 | 10:59am EST
New York Attorney General Eric Schneiderman (Screenshot)

A court of appeals recently upheld a lower court’s dismissal of a challenge based in the right of private association expressed in the 1959 landmark decision NAACP v. Alabama. The ruling has a disproportionate effect on conservatives associating with nonprofit causes that shun taxpayer financing.

At issue in a case brought by Citizens United is whether anti-gun, climate alarmist, pro-abortion leftwing New York Attorney General Eric Schneiderman may compel nonprofit organizations to provide him their list of $5,000-plus donors filed confidentially with the Internal Revenue Service.

The case never got to trial where facts and evidence could be considered and challenged. Instead, the courts accepted Schneiderman’s untested claim that he needs those donor names and addresses to prevent fraud, and dismissed the suit brought by Citizens United.

The decision had a racial element. The court essentially held that the constitutional right of private association protecting blacks in the 1950s civil rights era from Alabama Democrat Attorney General John Patterson does not necessarily extend to others associating in a race-neutral context.

This newly found, race-tinted limitation on the right of private association is particularly troubling since the unhinged and increasingly violent left has expanded its scope of targets addressing civil rights and political causes.

The ruling seems to say that if you have the concern and the means to donate $5,000 to a tax-exempt organization that provides training to teachers in proper use of arms, an organization that provides counseling against abortion, or a host of other civil rights issues, your right of private association doesn’t count. These are, of course, issues affecting all races.

What is also troubling about the decision is that the civil and criminal penalties protecting confidential tax return information such as an organization’s list of donors provided to the IRS have no bite when a state attorney general wants that information for no proven reason. And probable cause be damned.

The ruling disproportionately hurts conservative organizations, which, unlike nonprofits on the left, tend not to rely on taxpayer funding. Conservative nonprofit organizations are far more likely to rely on private citizens pooling their resources for a cause, whereas liberal organizations often see themselves as “partners” with government, especially under the Obama community organizing model, and tend to eagerly accept, if not rely upon, taxpayer money.

As to fraud in the tax-exempt world, one merely needs to follow the news to know that some of the biggest and most frequent nonprofit scandals and diversions of tax-exempt money for improper purposes happen when nonprofit organizations are financed with taxpayer money.


The conservative nonprofit model, on the other hand, tends to treat taxpayer financing as a negative. Across the board of all reasons why conservatives choose not to donate to a nonprofit organization, perhaps the most consistent reason is whether an organization takes taxpayer money. This is such a powerful motivator that in their appeals for contributions many conservative nonprofits emphasize they accept no government funding.

If Mr. Schneiderman were sincere about his desire to prevent fraud, he would not violate the right of a private association, but instead focus on better disclosure of taxpayer funding to nonprofits.

The last major revisions to Form 990 – the tax return of nonprofits filed with the IRS and collected by state charity regulators such as Mr. Schneiderman – were done under the Lois Lerner IRS. Form 990 is geared for liberal organizations. It is difficult for donors to find on the Form 990 how much taxpayer money an organization receives. Lois Lerner’s agenda lives on beyond her tainted tenure with the IRS.

This leads to three changes that should be made. Form 990 needs to be revised so on page one, in bold, organizations disclose how much taxpayer money they receive. Next, charitable solicitation statutes should require registering organizations to provide full disclosure of how much taxpayer money nonprofits receive. Lastly, among the already required disclosures, nonprofit websites and solicitations to the general public should be compelled by law to disclose what percentage of the organizations’ funds are from taxpayer money.

At the same time, and especially considering how the left has become increasingly violent as their democratically political losses mount, one should hope that Citizens United brings this case to the Supreme Court, and a better decision for the right of private association prevails.

Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."


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