New York Requires Social Welfare Organizations to Disclose Donors

Yesterday, New York Attorney General Eric Schneiderman announced that, effective immediately, new regulations will require non-profit organizations, such as 501(c)(4) organizations,  making expenditures related to New York elections to disclose expenditures they make and donations they receive.  These rules apply to organizations that must register with the Attorney General as charities, other than 501(c)(3) organizations.  The required disclosures will be made in annual financial reports. The new disclosure requirement is triggered when the organization makes direct or indirect expenditures for “express election advocacy” or “election-targeted issue advocacy”, the latter of which is defined as a communication that refers to a clearly identified candidate in an election that is made within 45 days before the primary or 90 days before the general election.  The disclosure will include: (i) the aggregate amount of election related expenditures and the percentage of total expenses during the reporting period it represents; and (ii) itemization of each election-related expenditure exceeding $50 made and each covered donation of $1,000 or more received by an organization that makes New York election related expenditures that total more than $10,000 in the reporting period. Non-segregated donations need not be disclosed if the organization keeps segregated bank account(s) containing funds used solely for New York election related expenditures, if all of such expenditures are made from such accounts.  Covered organizations may apply to the AG for an exemption from disclosing any information to the public about a covered donation if the applicant shows that “the covered organization’s primary activities involve areas of public concern that create a reasonable probability that disclosure will cause undue harm, threats, harassment or reprisals to any person or organization.” While there is also an exception for information that must be reported to other government agencies, the overlap with other public disclosure requirements is complex (as, for instance, with New York City Campaign Finance Board disclosure requirements), such that the scope of the exception may be unclear. Will the Attorney General’s push for donor disclosure by social welfare organizations inspire similar reforms elsewhere?  Or might the AG’s action spur challenges arguing that he has reached beyond his authority?  Or both?