Donor Disclosure Headed To Supreme Court
May 14, 2015 Mark Hrywna
The Center for Competitive Politics (CCP) will appeal to the Supreme Court of the United States a California Circuit Court decision that would require nonprofits to file un-redacted Schedule B forms with the California Attorney General’s Office.
The Alexandria, Va.-based nonprofit on Wednesday filed a 70-page emergency application for an injunction with the nation’s highest court. On May 1, the 9th Circuit Court of Appeals had affirmed a lower court decision siding with Attorney General Kamala Harris.
“The court did not require the attorney general to meaningfully justify her demand,” CCP alleges in the court documents. “Instead, it declared that nonprofits must prove that they and their donors will suffer an ‘actual burden’ from the compelled disclosure. The decision shifts the burden of persuasion and establishes a presumption of government entitlement to bulk collection of private information unless an organization can demonstrate particularized harm.”
A 501(c)(3) educational organization, CCP engages in no political activity and the requirement would mean either violating the privacy of its donors or self-censoring, according to the application. “Either option will inflict significant constitutional harm.”
To solicit charitable contributions in California, the state requires organizations to become members of the Registry of Charitable Trusts, administered through the state Attorney General’s Office. Organizations annually provide a public copy of their Internal Revenue Service (IRS) Form 990 as part of the registration process. A public copy of the IRS form redacts specific donor information from the Schedule B, only listing “significant” donations ($5,000 or more). The attorney general, however, has argued that having that information assists the “investigative efficiency” of the office.
CCP filed suit in March 2014 in U.S. District Court for the Eastern District of California, arguing that the “constitutional right to free association and the doctrine of federal pre-emption prohibited the attorney general from obtaining names and address of its substantial donors.” The organization counters that any potential red flags can be found within redacted Form 990, and if necessary, more information could be sought if probable cause is exists.
CCP seeks an injunction against an “unwritten policy of the attorney general with imminent and irreparable implications for First Amendment Rights of CCP and its financial supporters.” The organization argues that the 9th Circuit has shifted the burden of “exacting scrutiny” to the organization from the government.
“The 9th Circuit “inverted this requirement, instead requiring CCP to justify why it need not disclose sensitive information to the government But exacting scrutiny is premise upon the belief that governments must justify their demands for disclosure, not force the governed to explain why the state’s accumulation of a vast database of private, constitutionally-protected information is harmless.”