Supreme Court Foils Democrats’ Attack on Conservative Nonprofits

The second case decided by the Supreme Court today was Americans for Prosperity Foundation v. Bonta. The case arises out of an initiative by Kamala Harris, when she was California’s Attorney General, to force nonprofits to disclose to the state the identities of their major donors.

Schedule B to [IRS] Form 990—the document that gives rise to the present dispute—requires organizations to disclose the names and addresses of their major donors.
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Since 2001, each petitioner has renewed its registration and has filed a copy of its Form 990 with the Attorney General, as required by Cal. Code Regs., tit. 11, §301. To preserve their donors’ anonymity, however, the petitioners have declined to file unredacted Schedule Bs, and they had until recently faced no consequences for noncompliance. In 2010, the State increased its enforcement of charities’ Schedule B disclosure obligations, and the Attorney General ultimately threatened the petitioners with suspension of their registrations and fines for noncompliance.

Following a trial, the district court found for the plaintiff charities:

[T]he District Court held that disclosure of Schedule Bs was not narrowly tailored to the State’s interest in investigating charitable misconduct. The court found little evidence that the Attorney General’s investigators relied on Schedule Bs to detect charitable fraud, and it determined that the disclosure regime burdened the associational rights of donors. The District Court also found that California was unable to ensure the confidentiality of donors’ information.

This, of course, was the point. It was generally assumed that Harris wanted to know the identities of donors to conservative organizations so that they could be harassed by various California agencies, or so that their identities could be leaked in order for them to be “canceled” by left-wing activists.

In both cases, the court found that the petitioners had suffered from threats and harassment in the past, and that donors were likely to face similar retaliation in the future if their affiliations became publicly known.

The Supreme Court has long recognized that forced disclosure of association with a group can chill First Amendment rights. The seminal case was NAACP v. Alabama ex rel. Patterson:

We have also noted that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462 (1958).
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As part of an effort to oust the [NAACP] from the State, the Alabama Attorney General sought the group’s membership lists. Id., at 452–453. We held that the First Amendment prohibited such compelled disclosure.

In my view, this should not have been a difficult case. But the notoriously liberal Ninth Circuit Court of Appeals reversed the district court’s decision, and the vote in the Supreme Court was 6-3, with Justices Sotomayor, Kagan and Breyer dissenting. Justice Sotomayor made this very silly argument:

The same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support.

Of course some donors are happy to publicize their support for a particular nonprofit, but others, fearing personal harassment or damage to business interests, are not. Which is why the nonprofits in this case did not want to give Kamala Harris their donor lists. It is unusual to see such a foolish argument in a Supreme Court opinion.

The fact that liberal judges were happy to side with California’s effort to pry donor lists loose from conservative organizations is a stark reminder of the importance of not losing control over the Supreme Court to the Left.