Episode 50: The Buckeye Institute v. Internal Revenue Service
The Buckeye Institute v. Internal Revenue Service, argued before Senior Judge R. Guy Cole, Jr., Judge Richard Allen Griffin, and Judge Chad A. Readler of the United States Court of Appeals for the Sixth Circuit on April 29, 2026. Argued by Institute for Free Speech Senior Attorney Brett Nolan (on behalf of The Buckeye Institute) and Michael Weisbuch (on behalf of the Internal Revenue Service).
Case Summary, from the Institute for Free Speech website:
The Buckeye Institute filed a lawsuit challenging a decades-old tax law that forces the IRS to demand that nonprofit charities disclose the private information of their largest donors each year. Represented by attorneys at the Institute for Free Speech and its own attorneys, Buckeye’s lawsuit says the law violates the First Amendment and the requirement chills free speech and association.
The IRS itself admits that it does not need these donor records, and issued a rule in 2020 to stop collecting the same from other tax-exempt groups that are not classified as section 501(c)(3) nonprofit charities. The agency noted in that 2020 rulemaking that its collection of this sensitive personal data on Form 990 Schedule B “poses a risk of inadvertent disclosure” of private, non-public information. Even though the IRS has stated in related contexts that it would prefer not to collect this information from charities, federal law requires it.
The lawsuit claims that Buckeye’s work “would be significantly damaged” if it could not maintain the confidentiality of its donor relationships, as Buckeye’s supporters “risk retribution from some who oppose its mission.” The recent leak to ProPublica of “a vast trove of Internal Revenue Service data on the tax returns of thousands” of individual taxpayers and other IRS leaks understandably give financial supporters of certain charities, including Buckeye, justified pause.
The U.S. Supreme Court has already struck down a similar disclosure mandate in the landmark 2021 case of Americans for Prosperity Foundation (AFPF) v. Bonta because the government must consider “the potential for First Amendment harms before requiring that organizations reveal sensitive information about their members and supporters.” However, the Court’s AFPF opinion noted that “revenue collection efforts and conferral of tax-exempt status may raise issues not presented” in that case.
District Court Judge Michael H. Watson ruled that exacting scrutiny is the appropriate level of judicial review to apply to the law in question in the Buckeye case. Relying on AFPF, Judge Watson’s order shifts the burden to the IRS. The government must prove that this law is narrowly tailored to achieve the government’s interest in tax enforcement and administration. That means the government must justify collecting sensitive donor information from every 501(c)(3) non-profit every year.
A special procedure in federal law allows federal appellate courts to review a ruling before the case is decided. That’s the situation in this appeal. The government disagreed with Judge Watson’s ruling, stating that exacting scrutiny applied, and asked the appeals court for permission to review his opinion. Both Judge Watson and the Sixth Circuit granted the request for review.
Statement of Issues, from the Appellee’s Brief:
- Whether exacting scrutiny governs a First Amendment challenge to 26 U.S.C. § 6033(b)(5)’s requirement that nonprofit organizations disclose their “substantial contributors.”
- Whether the Court can enter judgment against the plaintiff-appellee, determining that § 6033(b)(5) does not violate the First Amendment, without affording the plaintiff-appellee an opportunity for discovery or factual development.
Resources:
- Institute for Free Speech case page (contains all documents)
- Opening Brief for the Appellant
- Appellee’s Brief
- Sixth Circuit Order Granting the Petition for Interlocutory Review
- Institute for Free Speech Blog Post, “Court: IRS Donor Disclosure Law Must Overcome Exacting Scrutiny”
Listen to the argument here:
The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform.
