Significant victories aren’t always accompanied by thunderclaps, big headlines, or a Supreme Court opinion that signals a slam-dunk win for a cause or client. Sometimes victories take subtler forms, resulting from quiet but decisive actions aimed at averting future legal conflicts.
That’s the sort of win MSLF had last week when Montana Governor Greg Gianforte wisely vetoed Senate Bill 278, which included a constitutionally-dubious provision requiring any nonprofit that sues the state to disclose confidential donor information. The aim of the measure, reportedly, was to shine light on the funding sources of radical environmental groups wreaking havoc in Montana.
Regardless of the policy preferences motivating the bill, it was a problem to demand donor information as a precondition of suing the state. Imagine the chilling effect that would have on free speech, free association, and the ability of Americans to support various causes without fear of recrimination, political retaliation or privacy right violations. That’s something virtually everyone in the non-profit world has a stake in fighting—left, right, or center—which is why opposition to such attacks on donor privacy often cross partisan and ideological lines.
When alerted to the bill’s existence, MSLF quickly swung into action.
MSLF Senior Attorney Tyler Martinez and MSLF Litigation Advisory Council Chair Emily Jones co-wrote a letter to the Governor’s General Counsel outlining their constitutional and practical concerns with the bill. “Under the bill, within 30 days of filing a lawsuit, a group would have to disclose all their donors who gave just $50 or more in the past year,” Martinez explains. “Few, if any, nonprofit group would be willing to do this, because donor privacy is a hallmark of the right to associate protected by the First Amendment.”
MSLF’s timely action seems to have had an impact, as reflected in themes Gianforte struck in his May 15 veto message.
SB 278 had some worthy elements, Gianforte wrote, but it “also targets certain nonprofits” by requiring public disclosure of their donors. “Kamala Harris, as Attorney General of California, similarly targeted nonprofits for donor disclosure. The practice is now before the United States Supreme Court because the First Amendment protects donors and prohibits targeting them. Montana’s charities play an invaluable role in the betterment of Montanans and their communities. SB 278 undermines that role.”
Martinez praised the Governor for recognizing the bill’s flaws and using his veto pen to avoid an unnecessary legal clash. He counts the veto as an early win for the Foundation’s new political speech and association practice, which he will lead.
Sometimes education by our experts, given clearly and in advance, is all it takes to prevail on an important principle of law, without initiating a costly and prolonged court case. Public policy debates offer a way to settle disputes without resorting to legal action. And sometimes a well-times “shot across the bow” can help do that.
Read the letter MSLF sent to Gianforte here.
