In December 2019, the Institute asked the Supreme Court to hear this case, overturn the Ninth Circuit’s previous ruling, and protect the country’s longstanding tradition of associational privacy.
A long line of Supreme Court precedent makes clear that states violate the First Amendment when they warehouse sensitive donor information, as California has done here. The Ninth Circuit’s ruling prohibits nonprofits from engaging in protected First Amendment speech if they maintain the privacy of their supporters. The Institute for Free Speech is currently banned from speaking with potential donors in California unless it reports its donors to the state. The Institute has refused to accede to the state’s demands for the last four years.
IFS has asked the Supreme Court to step in and reaffirm its precedent that Americans can join together in support of a cause safe from the prying eyes of the government.
To read the Institute’s petition for writ of certiorari to the Supreme Court, click here.
In order to legally solicit tax-deductible contributions in California, entities must first register with the state’s Registry of Charitable Trusts (“Registry”), which is administered by California’s Department of Justice.
To support its activities, the Institute for Free Speech (formerly the Center for Competitive Politics) solicits charitable contributions nationwide, including in California. Consequently, IFS registers with the State, and submits its publicly available IRS Form 990 to the Attorney General. In 2014, for the first time since IFS began soliciting contributions in California in 2008, the Attorney General requested an unredacted copy of IFS’s Schedule B.
Schedule B is an addendum to Form 990, which lists the names and addresses of the Institute’s contributors. While a redacted version of this form is publicly available, per the disclosure and privacy provisions of the IRC, the Schedule B contributor information of § 501(c)(3) organizations is exempt not only from public disclosure, 26 U.S.C. § 6104(d)(3), but also from disclosure to state officials. The IRC creates a specific means for state officials to seek confidential tax return information by direct request to the Secretary of the Treasury. 26 U.S.C. § 6104(c)(3). But § 501(c)(3) organizations are explicitly exempted from this provision.1
Therefore, California Attorney General’s request for IFS’s Schedule B violates the clear terms of the IRC, and ignores the Supremacy Clause of the United States Constitution, which forbids state actions that conflict with federal law. Worse still, the Attorney General cites no authority whatsoever to substantiate her demand for the Schedule B.
The Attorney General’s demand creates a stark choice for IFS. Either of its potential courses of action would result in constitutional harm actionable under 42 U.S.C. § 1983. IFS may refuse to comply with the Attorney General’s Letter and risk losing its ability to solicit charitable contributions in California, despite Ninth Circuit and U.S. Supreme Court precedent holding that fundraising for charitable organizations is fully protected speech.
On the other hand, if the Institute does give the Attorney General its confidential Schedule B as a precondition of engaging in protected fundraising speech, its First Amendment right to associate with its contributors, many of whom would rather not be disclosed, and their right to freely associate with each other, will be chilled.
As the United States Supreme Court first recognized in the civil rights cases of the 1950s, the anonymity of contributors to nonprofit educational organizations is generally protected, lest an individual be subject to retaliation for supporting an organization that educates the public on an unpopular topic. The State may only demand disclosure of an organization’s funders if necessary to advance a sufficiently important governmental interest. Defendant has not even attempted to make such a showing.
Should IFS act in the interest of its contributors and forgo fundraising efforts in the State to protect its donors’ names and addresses, it and its donors will be irreparably harmed. This will include not only lost contributions (and a corresponding loss of funding to advance the Institute’s mission) during the pendency of this litigation (which IFS will not be able to recover as damages from the state at a later time), but also the silencing of the Institute’s speech directed at potential donors in California.
As a result, The Institute for Free Speech filed suit in the United States District Court Eastern District of California, asking for a preliminary injunction preventing the Attorney General from obtaining the Institute’s confidential donor list. You can find a litigation backgrounder at this link. You can find an updated backgrounder on the implications of the 9th Circuit decision at this link.
Note: This case began as “CCP v. Harris” – older court filings may refer to the case by that name.