The Supreme Court on Monday took aim at a California law requiring that nonprofit organizations disclose their top donors to the state.
The case addressed a rule imposed by the California Attorney General’s Office requiring all charities that want to operate and fundraise in the state to report the names and addresses of their major donors nationwide. These reports are intended to be confidential and viewed only by state officials, but several groups, led by the libertarian Americans for Prosperity Foundation and the Catholic legal group the Thomas More Law Center, argued that such a rule violates their First Amendment right to free association by discouraging donors from giving to them.
The two groups raised the case in 2014. A federal district court ruled in their favor. The California-based 9th U.S. Circuit Court of Appeals reversed that decision. In Monday’s arguments, some of the Supreme Court’s conservative members appeared sympathetic to the nonprofit organizations’ cause, with several justices making a case for donor privacy, especially when the groups they donate to support controversial causes.
Justice Samuel Alito pointed to a brief filed in support of the nonprofit organizations by the American Civil Liberties Union, the NAACP Legal Defense Fund, and the Human Rights Campaign as demonstrating that people associated with them “have been subjected to threats, harassment or economic reprisals in the past.”
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Justice Clarence Thomas pointed at the potential risk of state officials leaking donor names as cause for potential donors to worry about giving, particularly to conservative organizations, when questioning attorneys representing California.
“Do you think it would be reasonable for someone who wants to make a substantial contribution to an organization that has been accused of being racist or homophobic or white supremacist, that in this environment that they would be chilled because they have reduced or no confidence that their contribution will be kept confidential?” Thomas asked.
The state argued that donors should disclose their names to prevent fraud. The nonprofit organizations replied that California’s poor record of confidentiality was part of the reason donors might suspect that their privacy is not secure.
The case has attracted much partisan interest as well. Rhode Island Sen. Sheldon Whitehouse in mid-April sent Justice Amy Coney Barrett a letter asking that she recuse herself from the case. Whitehouse was joined by Connecticut Sen. Richard Blumenthal and Georgia Rep. Hank Johnson, both of whom have been vocal critics of conservative Supreme Court maneuvering. The three argued that because an arm of Americans for Prosperity campaigned for Barrett’s confirmation, she had a conflict of interest in the case.
Barrett did not recuse herself from arguments.
Whitehouse also led a coalition of 15 Democratic senators prior to the case urging the court to decide in favor of California. The senators pointed to the landmark Citizens United v. Federal Election Commission, in which the court found that special interest groups and unions can influence elections, as the catalyst for a tide of so-called “dark money” in elections. Whitehouse accused the nonprofit organizations of using the case to “lock in dark money’s hold on our politics and policy making, possibly forever.”
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The Biden administration also weighed in on the case beforehand, arguing that the case should be thrown back to lower courts, where the donor privacy question could be reexamined. The case is notable for bringing together a politically diverse group of nonprofit organizations, all supporting Americans for Prosperity Foundation and the Thomas More Law Center.
A decision is expected by the end of the summer.
