Americans for Prosperity Foundation v. Becerra

California AG looks to create potential political enemies list

Cases > Freedom of Speech and Association > Americans for Prosperity Foundation v. Becerra
Case Status: Active: Adverse Decision in the Ninth Circuit. Petition for rehearing en banc denied March 29, 2019.

The California Attorney General – first Kamala Harris, now Xavier Becerra – demanded that Americans for Prosperity, a nonprofit 501(c)(3) organization of a politically conservative bent, submit an unredacted IRS Form 990 Schedule B that contains the names and addresses of all donors who give $5,000 or more in a year. The group refused because such disclosure threatens the donors’ First Amendment right of association. After a trial, the court agreed with the group and enjoined the Attorney General from collecting the unredacted form. The Attorney General appealed and PLF filed an amicus brief supporting the rights of donors to remain free to associate without risk of intimidation based on their philanthropy.

In 2010, Kamala Harris, then California’s Attorney General and now a U.S. Senator, began demanding “Schedule B” forms from all nonprofit organizations that solicit funds in the state. These IRS forms are attached to the annual tax return filed by nonprofits, and contain the names and addresses of all donors who give $5000 or more. In a series of cases originally brought in the 1950s to protect donors to the NAACP from reprisals, the Supreme Court has repeatedly affirmed that people have First Amendment rights to remain anonymous in their associations.

PLF filed an amicus brief asserting the rights of its own donors, arguing that disclosure of donor identity to the government represents a significant First Amendment injury. Individuals cherish privacy in speech and association because they fear retaliation from either government or the public at large, especially when the ideas they wish to express are unpopular. But which ideas are popular or unpopular change over time. Donors to current mainstream organizations might face retaliation for their association years or even decades later. Even where government seeks to protect private information, donors may reasonably fear disclosure through negligence or nefarious criminal activity.

The disclosure requirement also has negative social impact. First, it leaves nonprofit organizations with an unreasonable choice—forego soliciting donations from the country’s most populous state or violate the trust and privacy of their donors. Second, it has a “chilling effect” on donations due to donor awareness that their identity will be disclosed to the State of California – and beyond. Third, it limits opportunities for associational speech by California citizens as nonprofit organizations forego soliciting donations in California.

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What’s at stake?

  • Whether people want to donate to the Tea Party or the Socialist Party, they have a right to keep their donations anonymous.
  • PLF receives the majority of its support from individual donations, allowing it to represent the interests of tens of thousands of donors by engaging in nationwide strategic litigation in both state and federal courts.
  • The free association of individual donors is critical to PLF’s continued operation, and it owes these voluntary donors a duty to defend their constitutional right to confidentiality.

Case Timeline

AC Brief

October 05, 2018 Download

Opinion

September 11, 2018 Download

AC Brief

January 26, 2017 Download

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