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How Far Will the Roberts Court Go to Protect Shadowy Political Donors?

A coalition of conservative political organizations is asking the Supreme Court to weaponize the First Amendment in the service of dark money.

Jim Watson/AFP/Getty Images

The Supreme Court returns on Friday for the justices’ first conference of the new year. Two of the cases they’ll consider taking up are strange challenges to a California law aimed at preventing fraud among charitable organizations. Two conservative political-advocacy groups, supported by a host of other nonprofits, are trying to keep the identities of their top donors out of a registry maintained by the state attorney general’s office.

The groups and their allies argue that the forced disclosures violate their constitutional rights to freedom of association. They claim that the requirement could have a chilling effect on donations and even place supporters at risk of harassment and physical peril—though the state offered assurances that this information would not be released to the general public. If the justices agree to hear the cases, it will set a new benchmark on the Roberts court’s willingness to interpret the First Amendment as a shield for the wealthiest and most influential Americans. It will also test whether the pervasive sense of distrust among the country’s political factions has reached the high court at last.

The cases, Thomas More Law Center v. Becerra and Americans for Prosperity Foundation v. Becerra, take aim at a California law that requires charities operating in the state to provide certain records to the state government every year for regulatory purposes. To ensure that tax-exempt groups aren’t committing fraud, the IRS generally requires those groups to submit a form that identifies donors whose contributions are either greater than $5,000 or make up more than 2 percent of the group’s budget. Federal law bars the IRS from releasing the contents of those forms, which are known as Section B forms, to the public in any manner.

California also requires charities to submit the same IRS form to the state attorney general’s office for regulatory purposes, although enforcement of this rule was apparently lax until the last decade. In 2012, the office sent a notice to the Thomas More Law Center that it needed to provide its Schedule B forms. The office sent a similar notice to the Americans for Prosperity Foundation in 2013. Both organizations eventually filed lawsuits to block the state from collecting their forms. A federal district court blocked the office from obtaining both of their forms, but the 9th Circuit Court of Appeals overturned the decision and ruled in California’s favor in 2018.

Both organizations focus on different aspects of right-wing politics. AFP is one of the main organizations in the network of libertarian and conservative groups founded by Charles and David Koch. It opposes right-to-work laws, environmental regulations, and what it perceives as government meddling in the free market. The TMLC, a legal organization, said its mission was to “restore and defend America’s Judeo-Christian heritage” by promoting Roman Catholic values on family and marriage and opposing the “imposition of sharia law within the United States.”

Both groups cited the Supreme Court’s ruling in NAACP v. Alabama, a 1958 case that took place against the backdrop of the civil rights movement, to support their stance. Alabama’s attorney general had subpoenaed a wealth of records from the civil rights organization in a bad-faith attempt to enforce the state’s corporation laws. The NAACP handed over everything but the names and addresses of its members, arguing that the disclosure would violate their constitutional right to free association. After a protracted legal fight, the Supreme Court unanimously ruled in the NAACP’s favor.

The well-founded fear of white-supremacist violence against NAACP members likely influenced the court’s decision in 1958. The two organizations expressed similar concerns about the safety and welfare of their donors if California’s attorney general prevailed. “For those associated with charities that speak on contentious matters,” the TMLC wrote in its brief for the Supreme Court:

disclosing donor information to the Attorney General’s Registry poses an imminent danger of hate mail, violence, ostracization, and boycotts. Only the most stalwart supporters will give money under such a toxic cloud. Most will reasonably conclude that the risk of association is too great, with the result that groups who make the most threats will effectively shut down those with whom they disagree.

There’s a catch, however: The attorney general’s office doesn’t actually allow the public release of the Schedule B forms that it obtains, except for regulatory-enforcement purposes or to comply with a search warrant. “Consistent with this confidentiality requirement, the Attorney General maintains Schedule B forms separately from other submissions,” California told the Supreme Court in its reply brief. “They are not available on the Registry’s public website.” Instead, the state said, those records are now kept on a server that can only be accessed by members of the office who work in the section dedicated to charitable-fraud cases.

Accordingly, the 9th Circuit ultimately found little reason for concern. It accepted the state’s argument that the Schedule B forms were an important tool in combating fraud among charities that operate within the state. California, the court said in its September 2018 ruling, “requires the Foundation and the Law Center to disclose only their dozen or so largest contributors, and a number of these contributors are already publicly identified, because they are private foundations which by law must make their expenditures public.” As a result, the 9th Circuit concluded that the requirement was a “far cry from the broad and indiscriminate disclosure laws passed in the 1950s to harass and intimidate members of unpopular organizations.”

The organizations don’t let the state’s assurances slow them down, however. They pointed to a series of past lapses by the attorney general’s office that had led some of the information to become public. At one point, one of the groups was able to access Schedule B records by correctly guessing the URLs on a state website. California, for its part, conceded that “confidentiality lapses had occurred in the past, both as a result of technological vulnerabilities and human error.” But it also told the justices that lower courts had concluded the state had remedied the issues.

Left unstated is the plaintiffs’ implicit suggestion that the nation’s largest blue state can’t be trusted with sensitive information about conservative donors. Others have made the point more forthrightly. “California has been a proponent of forced disclosure of donor information for years, claiming that the information would be safe in the state’s hands,” Jon Pritchett, the head of the Mississippi Center for Public Policy, wrote in National Review in April. “Yet Kamala Harris, the former California attorney general and now a U.S. senator and presidential hopeful, ‘inadvertently’ allowed the names of donors to roughly 1,700 non-profits to be posted on a government website.”

That sense of partisan paranoia radiates from both of the groups’ petitions, as well as some friend-of-the-court briefs filed in support of them. “No less than NAACP v. Alabama’s survival is at stake,” the TMLC warned.

Unless this Court grants review to give freedom of association meaning and resolve a circuit conflict that the Attorney General validates, lower courts will continue to facially uphold the most sweeping disclosure mandates that bureaucrats can imagine. Charities will continue to find as-applied exemptions impossible to achieve, and support for groups advocating contentious ideas will dry up. This Court should intervene now while there are still dissenting voices left to save.

Will the court take up the call? In the 2010 case Citizens United v. Federal Election Commission, Justice Clarence Thomas sided with the other conservative justices to pare back a major campaign-finance reform law. But he parted ways with them on preserving the law’s donor-disclosure requirements. Thomas cited a litany of threats and protests made against donors who had backed California’s Proposition 8, which state voters had approved two years earlier. “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech,” he wrote.

But it’s unclear whether the other justices will side with him. Antonin Scalia, for example, once offered a starkly different view of secrecy and liberty. “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed,” he wrote in a concurring opinion in the 2010 case Doe v. Reed, where the court rejected a challenge to keep signatures gathered for a state referendum secret.

For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

There’s an underlying dispute over the level of scrutiny that courts should apply when state and local governments seek internal records from politically active groups. That technical legal argument, however, feels almost secondary to the question that looms over the case. The justices are not strangers to America’s partisan divides. The Supreme Court has arguably shaped and been shaped by those chasms more than any other institution. If it agrees to hear the case, it’ll also have to decide whether civically engaged citizens can still trust their political opponents to operate in good faith when they hold the levers of power in the state of California—and by extension, the nation.