Sec. 307. Findings

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Congress finds the following: The First Amendment of the United States Constitution provides that [C]ongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. See U.S. Const. Amend. I. The Supreme Court has held that the First Amendment’s protections apply with equal force to States and localities as it does to the Federal Government.

See Gitlow v. New York , 268 U.S. 652 (1925). The Supreme Court has held that implicit in the right to engage in activities protected by the First Amendment [lies] a corresponding right to associate with others. Roberts v. United States Jaycees , 468 U. S. 609, 622 (1984). This is commonly understood as the right of association. It furthers a wide variety of political, social, economic, educational, religious, and cultural ends, and is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.

Id . In NAACP v. Alabama ex rel. Patterson , 357 U.S. 449 (1958), the Supreme Court held the First Amendment’s freedom of association protected the National Association for the Advancement of Colored People from compelled disclosure of its members. This was because on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.

Under these circumstances...it [is] apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.

Id . at 462–463. The First Amendment’s freedom of association has been protected and strengthened by the Supreme Court for over sixty years. See NAACP v. Alabama ex rel. Patterson , 357 U.S. 449 (1958); Shelton v. Tucker , 364 U. S. 479 (1960); Bates v. Little Rock , 361 U. S. 516 (1960); Healy v. James , 408 U. S. 169 (1972); Elrod v. Burns , 427 U. S. 347 (1976); Roberts v. United States Jaycees , 468 U.S. 609, 622 (1984); Boy Scouts of America v. Dale , 530 U.S. 640 (2000);

Americans for Prosperity Foundation v. Bonta , 141 S. Ct. 2373 (2021). Most recently, in Americans for Prosperity Foundation v. Bonta , 141 S. Ct. 2373 (2021), a California law required Americans for Prosperity Foundation and the Thomas Moore Law Center to disclose the names, contribution amounts, and addresses of their major donors. Id . at 2380. The Supreme Court held this substantial intrusion into the group’s donors was unconstitutional. Id . at 2389. While California Attorney General Bonta argued these disclosures were needed so California could prevent wrongdoing by charitable organizations, there was not a single, concrete instance in which pre-investigation collection of [this information] did anything to advance the Attorney General's investigative, regulatory or enforcement efforts.

Id . at 2386. Similarly, California’s need for this information before initiating an investigation was highly questionable as it was only one of three states to impose this requirement and did not seriously enforce it until 2010. Id . at 2387. In short, Americans for Prosperity Foundation and NAACP both stand for the proposition that compelled disclosure of an organization’s members can violate an organization’s freedom of association. This is because effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association and there is a vital relationship between freedom to associate and privacy in one's associations...

See Id . at 2382 citing NAACP v. Alabama ex rel. Patterson , 357 U.S. 449, 460–462. Unfortunately, the First Amendment’s freedom of association protections are under constant attack. Recently, there have been efforts to enlarge the size of the Supreme Court because of disagreement with some of its rulings and personal disagreement with some of the justices. On April 9, 2021, the President issued Executive Order 14023 that created the Presidential Commission on the Supreme Court (the Commission).

Under Section 3(iii) of that Executive Order, the Commission was tasked with providing [a]n analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. . In December 2021, the Commission released its final report. On the issue of adding justices to the Supreme Court, the Commission concluded [m]irroring the broader public debate, there is profound disagreement among Commissioners on this issue. .

Unfortunately, even though the President’s Commission would not endorse adding the number of justices on the Supreme Court, some in Congress still believe it is necessary. See, for example , H.R. 3422, the Judiciary Act of 2023 that would add four associate justices to the Supreme Court. Because of this political uncertainty and the importance that donors in all organizations, no matter their party affiliation, are protected from having their membership disclosed and threats of reprisal that would follow, it is important that Congress statutorily codifies the Supreme Court’s holdings in NAACP v.

Alabama ex rel. Patterson and Americans for Prosperity Foundation v. Bonta . Government targeting of tax-exempt organizations because of disagreement with their political views is sadly not a hypothetical problem. From 2010 through 2013, the Internal Revenue Service

(IRS)intentionally discriminated against conservative organizations seeking tax-exempt status with words like patriot or Tea Party in their names. After years of litigation, in October 2017, the IRS signed a consent decree in Federal court and admitted to targeting conservative organizations from 2010 through 2013. The IRS confessed that its treatment of [conservative organizations] during the tax-exempt determinations process, including screening their applications based on their names or policy positions, subjecting those applications to heightened scrutiny and inordinate delays, and demanding of some Plaintiffs’ information that TIGTA [U.S. Treasury Inspector General, Tax Administration] determined was unnecessary to the agency’s determination of their tax-exempt status, was wrong. . It is antithetical to the First Amendment that the IRS or any Federal Government agency would ever be used to target an organization because of its political beliefs, or who its donors might be. As such, these organizations need to be protected to prevent events like what transpired at the IRS between 2010 and 2013.