November 10, 2015

Supreme Court declines to review compelled disclosure of donor lists

By Supreme Court declines to review compelled disclosure of donor lists

Yesterday, the Supreme Court denied certiorari in Center for Competitive Politics v. Harris, letting stand the Ninth Circuit’s decision that California Attorney General Kamala Harris can demand access to the donor list of the Center for Competitive Politics (the “Center”), a Virginia 501(c)(3) organization that advocates for freedom of political speech. Not only that, but the California AG can demand that any 501(c)(3) charitable organization soliciting contributions from California must hand over a list containing the names, addresses, and other information for all of its significant donors.

The Ninth Circuit rejected the Center’s arguments that this compelled disclosure violates their First Amendment rights and that it is preempted by an Internal Revenue Code rule governing charitable organizations’ privacy. The Ninth Circuit held that Harris’s vague “law enforcement” interest in having instant access to donor lists–as opposed to asking when any actual need should arise–outweighs the Center’s First Amendment rights. The court further held that the First Amendment rights of the Center and its donors won’t have sufficient weight in this context until and unless they can prove that inclusion on the list subjects them to threats, harassment, or reprisals.

The Ninth Circuit also held that a federal tax statute banning the federal government from releasing 501(c)(3) information to state officers for privacy purposes does not preempt state AGs from demanding the information from 501(c)(3) groups directly.

PLF filed a brief supporting the Center’s petition for review before the Supreme Court.  Our brief argued that the Court should hear the case because the Ninth Circuit ruling creates an unworkable rule that threatens donor confidentiality and free speech across the country.

The Center for Competitive Politics has done a commendable job in the past of pointing out the speech-chilling effect that compelled disclosure can have on public discourse and pushing for greater judicial scrutiny of compelled disclosure. State mandatory disclosure laws in general tend to have the practical effect of silencing low-volume political speakers for whom the cost of campaign finance attorneys’ fees can vastly outstrip the amount they would spend on their speech itself. Compelled disclosure also prevents those individuals who don’t want to be put on a government list somewhere from participating in and giving to causes that they believe in—a fear that is more and more justified with each new politically correct witch hunt the media reports. The result is simply that voices outside the mainstream are marginalized and silenced by compelled disclosure laws—often for vaguely-asserted, broad government purposes like in Center for Competitive Politics v. Harris. It’s unfortunate to see the Supreme Court decline review and turn a deaf ear to those voices.

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