A Virginia-based non-profit group asked the Supreme Court on Friday to bar state officials in California from gaining access to the lists of people who donate money or services to it. The Center for Competitive Politics, a vigorous supporter of political free-speech rights that does not get involved in election campaigns, asked for the protection until it can file a formal appeal to the Court on the constitutional dispute.
The Center’s plea (application 14A1179), along with the ruling by the U.S. Court of Appeals for the Ninth Circuit and other Circuit Court orders, can be read here. It was filed with Justice Anthony M. Kennedy, who handles emergency matters from that geographic region. He can act on his own or share the issue with his colleagues.The identity of those who give money to the Center is provided in a document (Form 990) that it must file with the Internal Revenue Service to qualify for tax-exempt status — under tax code 501(c)(3) — as an educational organization.
Ordinarily, that document remains confidential with IRS — a requirement imposed by federal law. However, a growing number of state attorneys general — including California’s — have been demanding access to organizations’ copies of that document in full form, contending that they need the financial data as they enforce state laws regulating groups that raise money within the state as charities.
California Attorney General Kamala Harris and her aides demanded that the Center send in a copy of that IRS form, to aid in state investigation of the finances of groups raising money as charities in the state.
The Center reacted with a lawsuit, claiming that forced disclosure to state officials would interfere with its First Amendment rights by discouraging donors who prefer to remain anonymous. There is no guarantee that, once the state government has the information in its files, that it will not become publicly available, the group has argued.
Its application seeks protection against handing over its Form 990 to the state until the Supreme Court can act on the Center’s challenge, to be filed later. The Supreme Court, the group argued, has long ruled that there is a “right to associate free from unchecked intrusion by political officeholders, a principle gravely wounded by the Ninth Circuit’s ruling.”
In its ruling, the group asserted, the Ninth Circuit “did not require the [state] attorney general to meaningfully justify her demand. Instead, it declared that non-profits must prove that they and their donors will suffer an ‘actual burden’ from the compelled disclosure.” As a result, it added, “the decision below 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.”
Relying on a 1958 Supreme Court ruling that protected the membership lists of civil rights organizations from forced disclosure, the Center’s filing remarked: “For more than a half-century, Americans have been assured that they enjoy a right to pursue their lawful private interests privately and to associate with others in so doing.”
This, the application went on, “is no longer the law in the Ninth Circuit, which specifically held that compelled disclosure of an organization’s donors is not itself a First Amendment injury. Rather, such a demand simply triggers exacting scrutiny, which the [Circuit Court] panel described as a mere ‘balancing test.’ ”
Justice Kennedy is expected to seek a response from California officials before acting on his own or referring it to the full Court for action. These days, a single Justice usually refers such disputes to the full Court. There is no deadline for action by Kennedy or by the Court.
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