WASHINGTON — The Americans for Prosperity Foundation is urging a Delaware appeals court to invalidate a state law requiring political advocacy groups to disclose their donors, building on a 2021 U.S. Supreme Court victory as the conservative organization moves to expand its presence in Delaware ahead of the 2026 elections.
Delaware's Elections Disclosure Act, enacted in 2012, requires organizations engaging in political advertising in the state to reveal the names and addresses of anyone donating more than $100 to their organization nationwide.
AFP, a libertarian-leaning political advocacy group founded in 2004 and affiliated with Charles Koch and the late David Koch, argues the law discourages political speech and violates First Amendment protections. The group lost a bid in April to pause enforcement of the law; the current appeal seeks to overturn it entirely.
In 2021, the U.S. Supreme Court ruled 6-3 in Americans for Prosperity Foundation v. Bonta, finding California's donor disclosure requirement unconstitutional. The court held that California's requirement burdened donors' First Amendment rights and was not narrowly tailored to a compelling state interest.
California had required nonprofit organizations to provide the state attorney general with their IRS Form 990 Schedule B—which lists major donors contributing more than $5,000 or 2 percent of total annual donations—as a condition for annual state registration, despite no state law explicitly requiring it. The IRS treats Schedule B information as sensitive and does not make it public.
During that litigation, evidence showed the state lacked adequate protections for donor privacy. More than 1,800 Schedule B forms were inadvertently posted online, and others were exposed in a computer hack.
AFP and the Thomas More Law Center initially sued then-California Attorney General Kamala Harris in 2014. A federal district court granted a permanent injunction against the state collecting Schedule B forms in April 2016. The Ninth Circuit reversed that injunction, ruling a compelling state interest existed to collect donor lists for policing charitable fraud. The Supreme Court sided with AFP in 2021, overturning the Ninth Circuit.
In Delaware, AFP argues that public disclosure exposes donors to harassment and deters future contributions. State officials say the law serves a legitimate interest in transparency, letting the public know who funds political campaigns and advocacy efforts. The appeals court must now weigh those competing interests against the Supreme Court's ruling in Bonta.
