When current U.S. Vice President Kamala Harris was California's attorney general, she imposed a regulation requiring nonprofit organizations to disclose their donor information to the state. The Americans for Prosperity Foundation and the Thomas More Law Center (TMLC) promptly sued.
“They want to know who the donors are so they can call them out and you have, in this case, organizations on the right pit against a very powerful establishment in California that doesn’t want to be criticized,” said Erick G. Kaardal, special counsel to the Thomas More Society. “One way to reduce the criticism is to require donor disclosure then expose the donors and go after them.”
A federal court judge at the Central District of California ruled in favor of the plaintiffs, granting TMLC’s motion for a permanent injunction to enjoin the Attorney General of California from demanding its confidential Schedule B to IRS Form 990.
“Given donors’ desire to remain anonymous, the Attorney General’s required disclosure of Schedule B chills First Amendment speech and the Freedom of Association,” wrote U.S. District Judge Manuel Real in his Nov. 16, 2016 decision. “TMLC presented evidence that significant harassment can and has occurred to both individuals associated with the Law Center as well as those who donate to it. If TMLC refused to comply with the Attorney General’s required disclosure, it would be prevented from operating as a charitable organization in the state of California.”
Judge Real, who has since died, was appointed to the bench by former President Lyndon B. Johnson.
In 2018, a Ninth Circuit Court of Appeals panel of three judges overturned Judge Real’s decision.
“Even assuming arguendo that the plaintiffs’ contributors would face substantial harassment if Schedule B information became public, the strength of the state’s interest in collecting Schedule B information reflected the actual burden on First Amendment rights because the information was collected solely for nonpublic use, and the risk of inadvertent public disclosure was slight,” wrote Circuit Judge Raymond C. Fisher who was nominated to the bench by former President Bill Clinton.
Judge Fisher has also since passed away.
“This is an utter disaster that California wants to eliminate free association to criticize the government,” Kaardal told the Southern California Record.
The plaintiffs appealed the reversal to the U.S. Supreme Court in August 2019, and since then, 13 amicus briefs have been filed from organizations such as the U.S. Chamber, the Institute for Free Speech, the Institute for Justice, and the Cato Institute. SCOTUS granted the plaintiff's Writ of Certiorari in January 2021.
“I think that the Supreme Court granted the petition because they want to look at this in the context of the ongoing cancel culture,” Kaardal said. “It’s not just conservative groups that are susceptible, liberal groups are apt to be canceled too because of their disagreement with the cancel culture and if the cancel culture gets into our government, there has to be room for nonprofits criticizing the cancel culture to operate.”
The litigants argued their positions before the U.S. Supreme Court last week on April 26.
“Why would we want to make it more difficult for people to organize when their rights are being transgressed by the government,” Kaardal said. “We want to make it easier, not harder and the First Amendment is intended to make it easy. I think the U.S. Supreme Court is going to find that if it's not a campaign for office or if it’s not a campaign for a referendum, there shouldn't be donor disclosure requirements.”
(Editor's note: The Southern California Record is owned by the U.S. Chamber Institute for Legal Reform).