California Attorney General Kamala Harris must be so ambitious that she is willing to tempt fate of multiple civil lawsuits and even criminal charges so she can intimidate her ideological opponents — and even her supporters. Ms. Harris oversees licensing of charities across the country that ask Californians for contributions. She's also a candidate for the United States Senate.
In disregard of the 1958 landmark civil rights decision NAACP v. Alabama and post-Watergate reforms to the Internal Revenue Code to protect tax information privacy, Ms. Harris is now telling charities and other nonprofit organizations that in order to get from her a charitable solicitation license they must first provide her office a confidential federal tax schedule listing their most valuable donors.
That confidential schedule is protected by civil and even criminal penalties for willful disclosure or inspection by government officials. Harris's demands are also extortive because charities may not ask for contributions in our most populous state without forking over this confidential information to her. She has threatened censorship, fines and other penalties for those charities trying to protect their donors' privacy.
In the age of snooping by the NSA and lawlessness at the IRS, Ms. Harris has taken the bad elements of both. With so many government officials escaping consequences for unlawful behavior, she may be banking on not even being brought to court. Federal criminal penalties for willful unauthorized disclosure are serious, however, and include up to five years in prison.
The federal tax information privacy statute was written after abuses by Richard Nixon's staffers, who targeted political enemies by obtaining their tax return information and having the IRS institute audits. The post-Watergate law is designed to prohibit snooping by government officials by defining unlawful "disclosure" of confidential tax information broadly as "making [it] known to any person in any manner whatever," unless expressly authorized in the statute. Unlawful disclosure includes state officials obtaining confidential tax information outside the express authorizations of the federal statute.
Besides violating the federal privacy statute, Harris's demands violate an essential notion of nongovernmental democracy that is at the core of American values: The right of private association.
Alexis de Tocqueville described America as "the most democratic country on the face of the earth" because Americans had "carried to the highest perfection the art of pursuing in common the object of their common desires and have applied this new science to the greatest number of purposes." Ms. Harris seeks to trespass on, and inject herself into, Americans' right to be left alone when it comes to which causes they support.
In 1958 the Alabama attorney general was told by the Supreme Court he could not subpoena the names of members of the NAACP because that would violate the right of private association. The decision in NAACP v. Alabama acknowledged how "diminished financial support and membership may be adversely affected if production [of members' names] is compelled." Ms. Harris blatantly ignores this precedent to destroy the American value of Tocquevillian private association.
Harris is an uber-liberal Democrat. Knowing the names of donors to causes not only allows her to target individuals who are on the opposite side of her ideology, but lets her know which Democrats may have contributed to causes she opposes. Besides its lawlessness, what Ms. Harris is doing is just plain creepy.
Just as the Alabama attorney general claimed law enforcement reasons for his attempt to silence and stop the civil rights movement in his state, Ms. Harris does the same to an even broader group of causes, although in a more contrived way for vaguer law enforcement reasons. But government officials who trespass on fundamental rights to intimidate and silence people always have excuses.
Even if this confidential information were ever genuinely needed for legitimate law enforcement reasons against genuine suspects, Ms. Harris could obtain it by showing probable cause and individualized suspicion rather than using a dragnet licensing requirement. Her law enforcement excuse holds no water even if it were not disingenuous.
Dozens of organizations, including charities and major conservative nonprofits, nationally recognized attorneys specializing in nonprofit law and more than 1,400 citizens have filed comments with Ms. Harris in response to a proposed rulemaking about how those donor names will be kept "confidential" from public disclosure.
The comments focus on the illegality of government officials even gathering this information, and suggest that Harris "retract her demands for names and addresses of donors, or face the prospect of civil and even criminal challenges for her intentional acts."
Law enforcement officials who violate and act above the law do more damage to the rule of law than citizen-lawbreakers. The courts have a duty to hold lawbreaking government officials accountable. Ms. Harris's colleagues have a special obligation to publicly chastise her, otherwise they tacitly condone lawlessness in government and send a harmful signal about the rule of law.
Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.