This post was originally published on Forbes May 13, 2015
The Ninth Circuit's decision in the case of the Center For Competetive Politics v Kamal D. Haris (Attorney General of California) is almost two weeks old and has been covered in other places, so I almost invoked my "You snooze, you lose" rule against myself, but I think I may have something to add. It concerns a fairly obscure issue, but the case does have a loose connection to the interminable IRS scandal (On Day 733 by TaxProf count as I write this).
About Center For Competitive Politics
The Center For Competetive Politics according to its 2013 Form 990 is dedicated to the "Preservation of the First Amendment rights to free political speech, assembly, and petition". The appointment of the Center's Chairman, Bradley A. Smith, to the Federal Election Commission was controversial given his vigorous opposition to campaign finance regulation. I guess it kind of looked like putting Daniel Berrigan on the Joint Chiefs of Staff or having Irwin Schiff head up the IRS. The Center received over $1.7 million in contributions and grants in 2013.
You Have To Tell The IRS About Major Donors
As a 501(c)(3) organization CCP has to tell the IRS who its major donors are. This is done with Schedule B which is attached to the Form 990. Schedule B is not subject to public inspection, so you don't get to see it on guidestar.org. Many states require charities to attach Form 990 to state filings. The instruction to Form 990 caution charities about not including the schedule of contributors in filings with states that do not ask for it, since they might inadvertently make the donor information publically available.
It appears that CCP relies very much on a few large donors. The 2013 Form 990 on guidestar.org does not even include a redacted Schedule B, but if you go to the California Attorney General site, there is a Form 990 including a redacted Schedule B for 2011 that shows that of the $1.8 million raised in 2011 over $500,000 came from a single donor. Over $800,000 came from just seven donors who gave between $85,000 and $211,250.
The IRS knows who those seven donors are, but they are not going to tell us. The California Attorney General would also like to know who those donors are, without making them public. So the AG is requiring that CCP provided an unredacted copy of Schedule B. CCP does not want to do that . The Ninth Circuit just told them that they have to.
CCP Does Not Want To Tell California AG
There were two arguments that CCP made. The first was that the disclosure requirement is injurious to the Center and its supporters' exercise of their First Amendment rights. They referred to a "chilling risk". So you feel OK giving money to CCP even thought Lois Lerner's minions know who you are, but you draw the line when it comes to the California AG. The Court indicated that that sort of concern was subject to "exacting scrutiny" under which the government's interest in obtainging the information must be weighed against actual damage to First Amendment rights.
The other argument is one I find slightly amusing. The Center argued that the disclosure requirement was preempted by Congressional intent to protect the privacy of donors. So it was a matter of federal supremacy. The amusing part to me is the way activists and advocates tend to use the Constitution like a drunk uses a lamppost - more for support than illumination. When it comes to federal supremacy versus states rights, it is usually which ever one gives you the answer you want that governs. The phenomenon is most notable in the area of gay marriage.
Why The AG Wants To Know
In case you are wondering why the AG wants to see the unredacted Schedule B, here is why:
The Attorney General argues that there is a compelling law enforcement interest in the disclosure of the names of significant donors. She argues that such information is necessary to determine whether a charity is actually engaged in a charitable purpose, or is instead violating California law by engaging in self-dealing, improper loans, or other unfair business practices.
Federal Preemption Not So Much
There is a Code section which puts limits on what information the IRS can provide to state authorities. CCP argued that those rules were applicable here. The Court pointed out that the state being unable to get the information by asking the IRS did not preclude the state from requiring the registered charity to provide it.
Federal law is supreme and Congress can certainly preempt a state's authority. However, principles of federalism dictate that we employ a strong presumption against preemption
The language is better construed as a limited grant of authority than as a prohibition. However, even if CCP's reading were accurate, a statute restricting the disclosures that the Commissioner of the IRS may make does not expressly preempt the authority of state attorneys general to require such disclosures directly from the non-profit organizations they are tasked with regulating.
CCP will review the 29-page opinion, issued May 1, and could pursue it to the Supreme Court. “The ruling asks us to make an impossible choice: either retroactively disclose donors to the Attorney General or cease asking Californians to support our work to defend free speech,” President David Keating said in a statement. “Ultimately, the Supreme Court may need to reaffirm its longstanding view that people can join groups without reporting their activity to the government, especially for educational purposes, unless the state can provide a specific and powerful reason for insisting otherwise. It gave no such reason in its briefs,” he said.
Commentary in AllGov California was biting
Mega-rich political donors and the conservative pundits who most fiercely defend them have a phrase to describe the mental illness that compels people to seek transparency in government and the electoral system: “Lois Lerner Syndrome.”
Lerner, an IRS official vilified by those on the right for perceived political persecution by the agency, was invoked by the Washington Times in describing a lawsuit brought against California Attorney General Kamala Harris last year by the Virginia nonprofit Center for Competitive Politics (CCP).
She wanted to know who their major donors were and they wanted her to stop asking. Although the state could have been asking for the names since 2001, it didn’t until 2013.
Charities help those in need. The center accomplishes that by funneling large amounts of money into political campaigns that promote the deregulation of elections and destruction of campaign finance laws. The center was founded in 2005 by Bradley Smith, a former Clinton appointee to the Federal Election Commission (FEC).
The Slowly Boiled Frog noted that the National Organization for Marriage had filed an amicus brief in the case and was taking the same position.
When NOM claims that providing the unredacted form is “something it cannot do” it is really saying that this is something it chooses not to do. Furthermore, NOM admits that the state still considers them to be in good standing.
NOM sued the IRS over disclosure of its donor list to the media