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 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.
Ninth Circuit Court of Appeals
- Plaintiff-Appellant’s Opposition to Defandant-Appellee’s Motion for Summary Affirmance (June 18, 2018)
- Defendant-Appellee’s Motion for Summary Affirmance (June 8, 2018)
- Amicus Curiae Brief of the Philanthropy Roundtable in Support of IFS (March 16, 2018)
- Plaintiff-Appellant’s Opening Brief (March 9, 2018)
- Plaintiff-Appellant’s Petition for Initial Hearing En Banc (March 9, 2018)
- Ninth Circuit Order Staying Mandate (May 11, 2015)
- Motion to Stay Mandate and Motion for Preliminary Injunctive Relief Pending Filing of Petition for Writ of Certiorari (May 5, 2015)
- Ninth Circuit Opinion (May 1, 2015)
- Ninth Circuit Injunction Pending Appeal (January 6, 2015)
- Urgent Motion: Plaintiff’s Reply to Defendant’s Opposition to Urgent Motion (January 5, 2015)
- Plaintiff Supplement to Motion (December 21, 2014)
- Ninth Circuit Order (December 19, 2014)
- Motion to Supplement the Record (December 18, 2014)
- CCP’s Reply Brief on Appeal (July 21, 2014)
- Attorney General Harris’s Opposition Brief on Appeal (July 8, 2014)
- Charles M. Watkins Amicus Brief in Support of CCP (June 19, 2014)
- National Organization for Marriage Amicus Brief in Support of CCP (June 18, 2014)
- CCP’s Appellate Excerpts of Record (June 12, 2014)
- CCP’s Opening Brief on Appeal (June 12, 2014)
District Court for the Eastern District of California
- Memorandum and Order (October 31, 2017)
- Attorney General Harris’s Reply in Support of Motion to Dismiss (September 29, 2016)
- Reply Brief in Support of Plaintiff’s Motion for Preliminary Relief (September 29, 2016)
- Brief in Opposition to Defendant’s Motion to Dismiss (September 22, 2016)
- Attorney General Harris’s Opposition to Plaintiff’s Motion for Preliminary Relief (September 22, 2016)
- Defendant’s Motion to Dismiss First Amended Complaint (September 8, 2016)
- Brief in Support of Motion for Preliminary Relief (August 19, 2016)
- First Amended Complaint (August 12, 2016)
- Eastern District of California Ruling (May 14, 2014)
- CCP’s Reply Brief on its Motion for Preliminary Injunction (April 10, 2014)
- Attorney General Harris’s Opposition Brief on CCP’s Motion for Preliminary Injunction (April 3, 2014)
- CCP’s Motion for Preliminary Injunction (March 20, 2014)
- CCP’s Opening Brief for a Motion for Preliminary Injunction (March 20, 2014)
- Proposed Order Granting Plaintiff’s Motion for Preliminary Injunction (March 20, 2014)
- Declaration of David Keating in Support of Motion for Preliminary Injunction (March 20, 2014)
- CCP’s Exhibit 1 (Attorney General Harris’s Letter Demanding CCP’s Donor Information) (March 7, 2014)
- Complaint (March 7, 2014)
United States Supreme Court
- Respondent’s Brief in Opposition (October 2, 2015)
- Amici Curiae Brief of the States of Arizona, Michigan, and South Carolina in Support of CCP
- Amicus Curiae Brief of the Philanthropy Roundtable in Support of CCP
- Amicus Curiae Brief of the Institute for Justice in Support of CCP
- Amicus Curiae Brief of the Center for Constitutional Jurisprudence in Support of CCP (September, 2015)
- Amici Curiae Brief of the Cato Institute and the Competitive Enterprise Institute in Support of CCP (September 1, 2015)
- Amici Curiae Brief of Pacific Legal Foundation, Goldwater Institute, Mountain States Legal Foundation, Southeastern Legal Foundation, Atlantic Legal Foundation, Individual Rights Foundation, and Reason Foundation in Support of CCP (August, 2015)
- Amici Curiae Brief of the Buckeye Institute for Public Policy Solutions, the Civitas Institute, the Freedom Foundation of Minnesota, the National Taxpayers Union Foundation, and Alliance Defending Freedom in Support of CCP (August 31, 2015)
- Petition for a Writ of Certiorari (Without Appendices) (July 30, 2015)
- Petition for a Writ of Certiorari (July 30, 2015)
- Emergency Application Pending Cert (May 1, 2015)
- The Washington Times: Political bias charges bounce off Kamala Harris amid Senate campaign in California, by Valerie Richardson (April 13, 2016)
- The San Diego Union-Tribune: Is the AG chilling charitable giving?, by Steven Greenhut (November 18, 2015)
- International Business Times: Center For Competitive Politics v. Harris: Will The Supreme Court Hear Case On Nonprofit Donor Anonymity?, by Adam Lidgett (November 8, 2015)
- The Wall Street Journal: Show Us Your Donors, by Editorial Board (November 4, 2015)
- The Washington Free Beacon: Nonprofit Asks Supreme Court to Protect Donors from California Regulator, by Lachlan Markay (November 4, 2015)
- The Washington Post: California’s Attack on Free Speech, by George F. Will (November 4, 2014)
- Chronicle of Philanthropy: Don’t Let the States Trample on the Right to Donor Anonymity, by Howard Husock (September 30, 2015)
- Washington Examiner: Supreme Court, California A.G. should butt out, by Editorial Board (September 30, 2015)
- Cato Institute: The Right to Anonymous Speech and Association, by Ilya Shapiro and Randal Meyer (September 2, 2015)
- Statement of David Keating on the 9th Circuit Court Decision in CCP v. Harris (May 5, 2015)
- The Wall Street Journal: Give Us Your Donors, or Else, by Editorial Board (July 22, 2014)
- Empower Texans: Slouching Towards California, by Tony McDonald (May 13, 2014)
- Center for Individual Freedom: Donor Disclosure Requirements Infringe on First Amendment Rights (Podcast) (May 9, 2014)