Why the Rio Grande Foundation is suing Santa Fe


COMMENTARY: Should a small nonprofit organization have to give up the privacy of its donors in order to speak freely? That’s what the City of Santa Fe believes.

Paul Gessing

Courtesy photo

Paul Gessing

Last year, the Rio Grande Foundation, the public policy think tank I lead, worked to educate Santa Fe voters on the soda tax that went down to defeat earlier this year. A month before the vote, we announced our “No Way Santa Fe” campaign to educate Santa Fe voters on the problems associated with taxing sugary drinks, using a short video and a website provided by another nonprofit to talk about this potentially significant tax increase that would harm businesses, employers and Santa Feans.

Literally the same day that we announced our public education campaign, the Santa Fe city attorney notified us that if we spent more than $250 on certain advertising tools that so much as “refers to a clearly identifiable ballot measure within 60 days” of it being on the ballot, we would be compelled to hand over a list of our donors for publication on a government database.

To be clear, we never expressly advocated for or against the soda tax. And if you follow New Mexico politics, you know that the Rio Grande Foundation has consistently fought against higher taxes and bigger government throughout its 17 years of existence. This educational undertaking was inherent to our organization’s mission, and that’s why I feel that it is so important to explain our reasoning for this lawsuit.

As a 501(c)(3) organization under the IRS Code, the Rio Grande Foundation’s donors — like Planned Parenthood’s or the NAACP’s — are not public information. In fact, back in 1958, the NAACP’s right to keep its donor list private was affirmed by the U.S. Supreme Court.

And while the Rio Grande Foundation’s donors may not face such extreme threats were it forced to disclose its donors, there are plenty of politicians who would love to silence the Rio Grande Foundation, not to mention Planned Parenthood or other nonprofit organizations, by intimidating their supporters.


Ultimately, as the media reported, while we dutifully kept our outright expenditures below $250 as prescribed by law, the Rio Grande Foundation was deemed to be in violation of the law due to the aforementioned video and website. These were “in-kind” donations to the Foundation, but because their value clearly exceeded $250, we were deemed to be violating the law.

We don’t think that’s right. We strongly believe that the First Amendment protects the speech in which we engaged relating to the soda tax measure. We also believe in respecting and adhering to donor privacy, as any donor to a 501(c)(3) has come to expect.

We’re asking the City of Santa Fe to change the law so that future nonprofits, whatever their beliefs or political outlook, can engage legally in a conversation over pressing public issues without handing over their donor lists.

Nonprofits should have a voice when it comes to important public policy issues, and we urge the city to recognize the right of nonprofits to express their views without punishing their donors.

Paul Gessing is the president of New Mexico’s Rio Grande Foundation, an independent, non-partisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom and individual responsibility. Agree with his opinion? Disagree? We welcome your views. Learn about submitting your own commentary here.

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