Supreme Court hears donor privacy case AFPF v. Bonta


Five takeaways: Supreme Court hears AFPF v. Bonta donor confidentiality case

Apr 28, 2021
Elizabeth mcguigan

This week, the United States Supreme Court heard oral arguments in the case Americans for Prosperity Foundation v. Bonta (Previously AFPF vs. Becerra). The roundtable has been following this case closely since AFPF’s complaint against California State Attorney General Kamala Harris for demanding that nonprofits file their confidential Annex B forms of the IRS, including the names of major donors, to the state.

Previously, the roundtable on philanthropy had submitted two amicus briefs, the most recent of which was cited by AFPF in its brief of February 22, 2021. The value of all amicus briefs, including the table round, was clear yesterday as several judges referred to the wide range and large number of groups that have filed amicus briefs as evidence that the settlement will have a significant impact on the philanthropic and nonprofit sectors.

AFPF’s arguments seem to resonate with judges. Here are five takeaways:

  1. Americans’ freedom of association includes the right of anonymous association.

    The issue of anonymity as a key element of freedom of association has been raised on several occasions. Justice Amy Coney Barrett underscored this line of questions, as did Justice Clarence Thomas and Justice Brett Kavanaugh, who said the essential corollary of freedom of association is the right to keep that association private.

    Judge Thomas asked several questions related to the recent trend to publicly accuse organizations of being racist, homophobic or otherwise controversial. He asked if the petitioners’ analysis would change if an organization simply provided free dog beds. It opened up a discussion of how we live in a time of great conflict; a case that may seem uncontroversial may in fact be controversial to some now – or may become contentious in the future. He also touched on the history of census data used to bring Japanese Americans together for internment camps and similar historical threats. The AFPF lawyer added that there are many other reasons a donor may wish to remain anonymous apart from fear of reprisal, including religious reasons, modesty or a desire to avoid solicitation. unwanted, as pointed out in the roundtable’s amicus brief.

  2. Fear of disclosure can chill charitable giving and associations.

    Judge Samuel Alito asked the accused’s attorney if he doubted donors who give to controversial causes have reason to be concerned, citing extensive evidence of harassment in the brief submitted jointly by the American Civil Liberties Union, the NAACP Legal Defense Fund and the Human Rights Campaign. . The defense responded that there may be a deterrent effect in individual cases, but there is no evidence that this applies to a typical person donating to a typical charity.

    Judge Alito was also concerned about leaks California has had in the past and questioned whether there would be any confidence in California’s ability to keep information confidential in the future, or whether donations will be cooled. Judge Sonia Sotomayor raised similar concerns that information could be hacked – or that the “reasonable fear” created by past violations will chill donations.

  3. California does not need to prophylactically require Schedule B.

    The main issue in this case is whether California’s interest in collecting Schedules B outweighs the constitutional concerns about requiring their collection. This leads to a discussion of why it may be constitutional for the IRS to require Schedule B, but not a state. To that end, Justice Kavanaugh asked counsel for the petitioners to distinguish between the IRS Schedule B collection and the California Schedule B collection. He replied that unlike California, the IRS has 1) statutory authority; 2) for tax compliance purposes; 3) national jurisdiction; and 4) strong protections against public disclosure. Justice Kavanaugh also touched on the fact that while 46 other states do not require Schedule B, it is difficult to understand why California says it is necessary for their oversight. (Particularly because, as Judge Alito pointed out in his questioning, the state has only used these documents in a few cases over 10 years.)

    Judge Neil Gorsuch had a compelling hypothesis on whether the government could argue that it needed other information for efficiency purposes – like an organization’s Christmas card list to ensure that mail delivery was going smoothly.

  4. Americans shouldn’t have to wait until they are threatened to have their rights protected.

    There was frequent discussion of the issue of challenge as applied, which would argue that the California rule is unconstitutional as applied in specific cases, and not as a whole. This would essentially require each affected donor and charity to individually prove that they have suffered a negative impact as a result of the requirement. Counsel for the petitioners did point out that they had spent seven years disputing this situation and that certainly not all nonprofits in the state can be expected to go through the same process. expensive. Procedural hurdles aside, Chief Justice John Roberts, among others, wondered how a concerned charity would go about showing that it is at risk and what would be the threshold or criteria to prove such a risk.

    Defendant’s attorney also noted that a charity could apply to the California attorney general’s office for an administrative exemption. The judges appeared concerned with California’s argument that if a nonprofit or donor faces threats or harassment, they could seek an exemption. Chief Justice Roberts wondered how they could prove the risk and asked how many examples would be needed. Justice Gorsuch called this “putting the cart before the horse” because it would likely require the threat or harassment to occur before a donor’s freedoms are protected. Judge Alito wondered if, if California says the information will not be public, if a group could succeed in meeting such a challenge.

  5. There is a need to clarify the distinction between political and non-political discourse.

    Justice Breyer raised the question of whether it is possible to distinguish this case from campaign finance laws, where the desire for privacy may be even more intense. His question suggested that California regulations could deter “bad behavior”. This theme is familiar to anyone who follows the attacks on so-called “black money”. It stresses the need to better inform about the important role that appropriate campaign finance laws play in ensuring transparency in government and the political process – and how this is totally separate from private discourse and association of individuals not engaged in electoral activities.

The court is expected to render a decision on the case by the end of this term in June 2021.

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