Supreme Court refuses to hear donor disclosure case
On Monday, the nation’s highest court declined to review a case from California about the value and First Amendment status of anonymous speech.
In Center for Competitive Politics v. Harris, the Virginia-based advocacy group is challenging a rule instituted by California Attorney General Kamala Harris that requires any nonprofit groups raising money in California to provide an unredacted list of donor names as part of their registration with the state’s Registry of Charitable Trusts.
The Court’s quiet move leaves in place a ruling by the U.S. Court of Appeals for the Ninth Circuit, which denied CCP emergency relief from the California regulation. It comes just as the editorial board of The Wall Street Journal and The Washington Post’s George Will, among others, have spoken out in favor of Supreme Court review.
Attorney General Harris says the disclosure of donors serves an important law-enforcement purpose, allowing the state to determine “whether an organization has violated the law, including laws against self-dealing, improper loans, interested persons, or illegal or unfair business practices.” Supporters also note that the names remain private and are not released to the general public.
But CCP argues that the state hasn’t explained how the rule actually serves law enforcement. Instead, they say, the disclosure is part of a broader effort to chill expression and erode a presumption of protection for anonymous speech and association.
As the Center’s Lyle Denniston pointed out in a report for Constitution Daily last year, the Supreme Court has stood on both sides of this question:
[I]t has shielded civil rights organizations from having to disclose their donors, and has provided privacy for issuers of political flyers, but at the same time, it has said that government has clear authority to require public disclosure of the sources of campaign spending.In fact, in perhaps its most controversial campaign finance decision—the ruling in 2010 in Citizens United v. Federal Election Commission—the Court made clear that, in return for allowing corporations and trade unions to spend freely on federal elections, they had to be willing to disclose what they spend.
The debate turns in part on the meaning and legacy of NAACP v. Alabama, a civil rights-era case in which the Court struck down compelled disclosure of the state NAACP’s membership lists as a violation of the Due Process Clause of the 14th Amendment.
In a May 2015 episode of the Center’s weekly podcast, We the People, CCP’s Allen Dickerson cited the NAACP case as support for the protection of anonymous association.
"The constitutional question is one of exactly where the default understanding of anonymous association lies," he said. "It's been our understanding … that one of the hard-fought victories of the civil-rights era … was that, while there is obviously not an absolute right to associate anonymously, there is a presumption that, when people get together and associate with themselves, the membership and donor lists of those organizations are not subject to government scrutiny unless the government can meet some sort of heightened constitutional strict scrutiny, to show that it needs this information for a particular purpose, and that having this information will, in fact, meaningfully advance that purpose."
But the University of Montana’s Anthony Johnstone argued that CCP has not demonstrated any harm to its donors as a result of the California regulation—as opposed to the harassment or targeted FBI investigations faced by the NAACP and the Communist Party, among other groups.
"For about 500 years … attorneys general have had the duty to stand in the shoes of the public with respect to charitable trusts, and now nonprofit corporations," he explained. "[I]n order for the attorney general to do this historic task—supervising the charitable organizations that operate in her state—some sort of registration and reporting is a longstanding practice."
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Nicandro Iannacci is a web strategist at the National Constitution Center.