This morning the Ninth Circuit denied Americans for Prosperity Foundation’s petition for rehearing en banc in AFPF v. Becerra. For those who don’t remember, the Foundation sued over a California law that requires tax-exempt nonprofit organizations to hand over an IRS form that contains names and addresses of their donors. The trial court agreed with AFPF on all counts, in an opinion that squarely recognizes the important association interests that are infringed when organizations must disclose their members or supporters. That’s squarely in line with the seminal Supreme Court case involving membership disclosure of an organization, NAACP v. Alabama.
The Ninth Circuit reversed the trial court, in an opinion that shockingly discounts all of the evidence produced at trial, and instead accepts government assertions of good faith and competence at face value. But that’s not how heightened scrutiny should work–as Judge Ikuta rightly points out in his stinging dissent to the denial of en banc review. Many of the Foundations members have been subjected to harassment and even physical attacks because of their affiliation, while the state couldn’t put forward a single example where they had used a donor form for legitimate investigative purposes. And worse still, government assurances that they would keep the forms private were laughable–through a combination of human incompetence and inadequate internet security practices, thousands of such supposedly private forms had been made available to the public for years.
This case has a long history, and it doesn’t look to be over quite yet. Judge Ikuta’s dissent focused heavily on the correct reading of another case, Buckley v. Valeo, which involved disclosure in the election context. Judges Fisher, Paez, and Nguyen wrote a reply to Judge Ikuta’s dissent, and there are clearly some strong disagreements on how to apply NAACP v. Alabama after Buckley. Given the disagreement on display, this case seems like a very good candidate for review at the Supreme Court.