The Corner

Law & the Courts

The Solicitor General Should Tell the Supreme Court to Hear Americans for Prosperity Foundation v. Becerra

The U.S. Supreme Court building in Washington, D.C., March 20, 2019. (Leah Millis/Reuters)

The Supreme Court has the chance to decide whether a state can routinely compel nonprofits to disclose their donors. You might think that issue was settled in 1958, in NAACP v. Alabama ex rel. Patterson, which established that the First Amendment right to association required protecting the privacy of a group’s members and supporters. That right is especially important to advocacy groups that are unpopular with a state’s governing majority, as the NAACP was in Alabama in 1958.

Numerous federal circuits have agreed since then. The Ninth Circuit, however, has gone the other way in a case involving the Americans for Prosperity Foundation (a frequent target of left-wing ire and conspiracy theory for its ties to the Koch brothers) and the Thomas More Law Center, a conservative Christian legal advocacy group. AFPF and Thomas More have petitioned the Supreme Court for review. Twenty-two amicus briefs were filed asking the Court to take the case. In the Ninth Circuit, the petitioners’ position was supported by the NAACP Legal Defense and Education Fund, which retains a historic stake in this issue.

In February, the Court asked the Solicitor General to file a brief stating the position of the federal government on the petition. But the SG has sat on the request since then, due in part to the transition from departing Solicitor General Noel Francisco (who left in July) to acting solicitor general Jeffrey Wall. The office should weigh in now, and not wait for the new Administration to try to bury the case.

Why would the Biden-Harris administration, if elected, try to bury this case? Because the defendant is the California Attorney General, and much of the challenged policy was administered by his predecessor, Kamala Harris. (It began a few months before her tenure, under Jerry Brown). And the facts reflect very poorly on Harris.

The California AG’s office has demanded, since 2010, that 501(c)(3) nonprofits disclose their IRS Schedule B listing their major donors. This is information that previously had been submitted only to the IRS, which treats them as carefully guarded confidential information. California did not. A trial disclosed extensive evidence that the California AG’s office “systematically failed to maintain the confidentiality” of donor lists:

  • 1,778 Schedule Bs had been posted online; in some cases, the AG had known for years of the public disclosures, and not notified the nonprofits. Not all of these were conservative organizations, either; one victim was Planned Parenthood.
  • Evidence showed that the registry of some 350,000 Schedule Bs was “an open door for hackers.”
  • The AG’s office interpreted its rules to allow disclosures to public-record and academic research requests.
  • There was no supervision of third-party vendors who regularly accessed the registry.

This was a damning indictment of the cavalier attitude towards highly valued, sensitive information crucial to nonprofits, particularly conservative groups that could be targeted for donor harassment in California’s hothouse political climate, in which donating to the wrong cause can get you picketed, fired, or worse. The district court found that the entire project of collecting this sensitive information “demonstrably played no role in advancing the attorney general’s law enforcement goals for the past ten years,” as almost none of it was ever used in an investigation, and there were adequate investigative tools to obtain the Schedule B information if a legitimate investigation arose. The AG and the Ninth Circuit justified this intrusion by citing cases involving campaign donors, but AFPF, Thomas More, and many of the other advocacy and charitable organizations are 501(c)(3) nonprofits, barred by law from engaging in election campaigns. This was simply a pretext for harassment.

The Court should hear the case. And the acting solicitor general should not be too timid to urge the Court to do so.

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