California Attorney General Kamala Harris is being deluged with requests from non-profit officials to withdraw her “unconstitutional” demand for public disclosure of donor names because it creates a “back door” around the U.S. Supreme Court’s decision in Citizens United.
Harris’ critics claim her demand violates the First Amendment and privacy laws, compromises donor privacy and security, and makes it easier for government officials and agencies to pressure dissenting groups challenging particular policies and programs.
Non-profit donor disclosure discourages contributions and undermines the Citizens United ruling that upheld political contributions by corporations and unions as exercises of First Amendment speech that government agencies like the Federal Election Commission cannot limit.
The 2010 decision encouraged the formation of super political action committees and freed 501(c)4 tax-exempt nonprofit groups to take a more open role in politics. Democrats criticize the ruling, even though they use it to their advantage.
“This is a back-door way these liberal Democrats to get around the Citizens United decision,” Mark Fitzgibbons, a Northern Virginia lawyer who represents individuals and businesses against government abuses, told The Daily Caller News Foundation.
Nonprofit groups with a 501(c)4 status already have to submit the names of people who donate more than $5,000 on Schedule B of their annual 990 filings with the Internal Revenue Service (IRS), Fitzgibbons said. When those groups submit tax paperwork at the state level, they redact those names. Harris wants to see those names.
A former FEC commissioner agreed with Fitzgibbons.
“It’s very clear that groups on the left, particularly the Democratic Party, they hated the Citizens United decision,” Hans von Spakovsky, a senior legal fellow with the conservative Heritage Foundation, told TheDCNF.
“Their way around it is to force donor disclosure, so they can scare off donors and dry up the resources these organizations use to get their messages out the way they are entitled to under Citizens United. So I think this is a backdoor way of getting around that case,” said von Spakowsky, who served on the FEC via a recess appointment by President George W. Bush in 2006.
The case is fundamentally a violation of basic constitutional rights, said Cleta Mitchell, a Washington, D.C. lawyer who represented many of the conservative and Tea Party non-profit applicants that were illegally targeted and harassed by the IRS during the 2010 and 2012 elections.
“It’s a violation of both the organizations’ First Amendment rights to solicit donations, and the donor’s right to be solicited,” Mitchell told TheDCNF.
“Well look, there is no legal reason for California to be demanding these donor names,” von Spakovsky said. “In fact, there’s no legal reason for the federal government to be demanding them either.”
When donors’ information isn’t secure, donations dry up, von Spakovsky explained.
“It has a big chilling effect,” von Spakovsky said. “You can pull up all kinds of articles about the Tea Party organizations who were subjected to the scrutiny by Lois Lerner and the IRS, and many of them talk about how their donors started drying up.”
Critics worry that if state officials obtain donor names, it could lead to another scandal like the IRS targeting violations.
“What happens is, you get what the IRS did with Lois Lerner, where they started targeting conservative organizations and conservative donors, and I bet that is what Harris is doing,” von Spakovsky said. “She is one of the most political attorneys general in the country.”
Critics of the California AG in public comments called her move “illegal” and “unconstitutional.” Post-Nixon-era privacy laws made it illegal for government agents to inspect or disclose private taxpayer information. The Supreme Court in NAACP v. Alabama also ruled the state couldn’t demand NAACP’s membership list.
“The problem right now is the courts, unfortunately many of them have the wrong view of this — they don’t see disclosure as being a problem, despite that NAACP case,” von Spakovsky said.
The Ninth Circuit Court of Appeals in California recently determined Harris could obtain taxpayer information from the conservative nonprofit Americans for Prosperity under a licensing requirement.
“The bottom-line issue is she [Harris] is running for the U.S. Senate, and it is mystifying to me that the state of California has any interest whatsoever in an organization’s donors who don’t even live in California,” Mitchell said.