California Law Forcing Charities to Identify Donors Is Unconstitutional, Supreme Court Hears

April 26, 2021 Updated: April 26, 2021

The Supreme Court seems sympathetic to arguments by two conservative charities that a California law requiring charities to hand over the names of their donors violates the First Amendment.

The case, Americans for Prosperity Foundation v. Bonta, court file 19-251, and a companion case, Thomas More Law Center v. Bonta, court file 19-255, were heard together April 26. Rob Bonta, a Democrat, was sworn in on April 23 as California’s attorney general.

The court allotted 70 minutes for oral argument; the hearing actually ran 104 minutes.

The petitioner groups were represented by Derek L. Shaffer. The respondent, California, was represented by California Deputy Solicitor General Aimee A. Feinberg.

The former Trump administration had argued the state’s policy clearly violates the two tax-exempt groups’ constitutionally protected freedom of association.

However, the Biden administration, represented at the hearing by Acting Solicitor General Elizabeth Prelogar, said the appeals court’s “analysis was incomplete” in the ruling at hand, which found against the charities, so it should be returned to the court so it can clarify its reasoning.

Americans for Prosperity Foundation (AFPF) and its sister organization, Americans for Prosperity, are influential libertarian nonprofits funded by businessman Charles Koch. The Thomas More Law Center is a conservative Christian public interest law firm based in Ann Arbor, Michigan, and isn’t to be confused with the Thomas More Society, a Chicago-based public interest law firm.

California regulations require charities to file a copy of their IRS Form 990, a federal informational return for tax-exempt organizations, annually with the state. Schedule B to the form contains names and addresses of top donors. While the form is made available to the public, Schedule B donor information must be kept confidential, under pain of federal civil and criminal penalties.

When a Schedule B is released to the public, donor-identifying information is redacted.

Since about 2005, California has demanded that charities file with the state unredacted Schedule B documents, giving state officials the names of donors. The state’s policy is to keep the information confidential, but there are no state legal penalties for breaching confidentiality.

The charities concerned refuse to file their unredacted Schedule Bs with the liberal, Democratic Party-dominated California government because they don’t trust its officials to keep the information secret. They say that their donors have in the past been harassed and been the victims of reprisals when their names became public.

A U.S. district court agreed with the charities and preliminarily enjoined California from requiring petitioners to submit their Schedule B documents. The U.S. Court of Appeals for the 9th Circuit disagreed and reversed.

Shaffer told the Supreme Court during oral arguments that in 2013, when California leaked the Schedule B of Asian Americans for Advancing Justice, there weren’t life-threatening consequences for donors, “but today, in 2021, sad to say, it could be a life-or-death issue that their identities have been disclosed.”

Shaffer said there is expert testimony in the record “explaining that precisely because there is such intensity of views and there’s such a proclivity to vilify perceived enemies in our times, that’s part of what … raises the stakes … and raises the concerns of reasonable donors for charities all across the spectrum.”

California’s policy constitutes “a totally gratuitous First Amendment intrusion.”

Feinberg told the justices that the petitioners failed to demonstrate that California’s Schedule B requirement is unconstitutional.

“They did not show that California’s confidential collection of the same information that charities already provide to the IRS chills associational interests in general or for a substantial number of charities in the state.”

Chief Justice John Roberts challenged Feinberg.

If someone wants to support a controversial cause when people have threatened to make life miserable for its supporters and “that person came to you and said, ‘I want to give a donation but I want to be sure that California will not disclose this and it will not get out, can you give me 100 percent assurance that that will not happen?’ What would you tell that person?”

“I don’t think any organization can guarantee perfection,” Feinberg said, adding that the state has improved its confidentiality protocols since past lapses.

Justice Clarence Thomas told Feinberg that governments have in the past abused data, saying that when Japanese Americans were interned during World War II, “census data was used to locate them.”

Justice Stephen Breyer said he’s concerned the current case is just a “stalking horse” to help take down campaign finance laws.

His remarks seem to echo those of 15 U.S. senators—all left-wing Democrats—who filed a friend-of-the-court brief in support of California’s position.

“This appeal is just the latest move in the steady and methodical campaign pursued by powerful interests to both cement and obscure their influence over the public sphere since this Court’s decision” in Citizens United v. FEC (2010), which allowed corporations to spend without limit to influence elections.

“The effect of these efforts has been to deprive the citizenry of information and make our democracy less representative,” the brief stated.

Responding to Breyer, Shaffer said: “There is no law on the books in California requiring Schedule B. What you have is bureaucratic whim,” which is “different from a considered legislative judgment.”

California, Shaffer said, has no interest in reviewing Schedule Bs.

“It’s in having them on hand prophylactically on a suspicionless basis from all charities to then review a tiny handful when an external complaint comes in.”

Responding to Justice Samuel Alito, Shaffer said that officers from charities testified that after donor information went astray, “they had instances of horrific threats and violence, including death threats that were directed against the organizations or their proxies who were in the same position that donors would be in.”

Justice Amy Coney Barrett asked Shaffer, “Do you think the right to anonymously associate is an inherent part of the freedom of assembly?”

“Yes, it is. It was precious to the framers,” Shaffer said.

“Anonymity was a core concern of theirs that’s reflected in this court’s precedents … but, also, the right to assemble is the right to assemble privately and peaceably. And when the government comes asking tell us who your donors are, that is a direct infringement.”