Americans for Prosperity Foundation v. Bonta: Donor Protection Case

SCOTUS heard oral arguments on April 26th, 2021, for the case Americans for Prosperity Foundation v. Bonta (consolidated with Thomas More Law Center v. Bonta, docket number 19-251), a case that disputes the California A.G’s request that all major donors to charitable organizations must provide a list of those who donated with their personal information. The A.G.’s office failed to show substantial state interest in obtaining the sensitive Schedule B records of donors across the state of California, and that by mandating for such information the state was burdening donors. 

This case originates from the ongoing legal disputes in California regarding Cal. Code Regs. tit. 11, Section 301, that requires charities to report any donations above $5,000 to the Attorney General’s Office by filing their IRS Form 990, including private information, such as the donor’s full name and address. This is not unusual for the IRS to maintain, but is unusual for a state to routinely request unless able to prove a “controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of petitioner’s membership lists is likely to have”.

Over the course of several years, the matter of whether or not the state government should require organizations to disclosure Schedule B information remains hotly contested. In defense of this matter in 2015, then-Attorney General Kamala Harris, stated, “there is a compelling law enforcement interest in the disclosure of the names of significant donors.” Harris advocated for Schedule B information to be released to law enforcement under the guise of preventing nefarious acts by charities.  

Later in 2016 the U.S. District Court, Central District of California, ruled in Thomas More Law Center v. Harris to “enjoin the Attorney General of California from demanding its Schedule B form and enters judgment in favor of TMLC. After conducting a full bench trial, this Court finds the Attorney General’s Schedule B disclosure requirement unconstitutional as applied to TMLC”.

This would extend into 2018 when the United States Court of Appeals for the Ninth Circuit, vacated the permanent injunction in place on the Californian Attorney General from the district court felt that the A.G.’s office has the responsibility to collect non-public Schedule B information to mitigate illegal practices and that by collecting such information the risk of any form of disclosure to the public would be minimal.  

Following the Ninth Circuit’s dismissing a rehearing en banc and an appeal, the Roberts’ Court granted the group an oral argument on whether or not the California Attorney General’s Office policy of requiring charities to disclose personal donor information violates the Constitutions First Amendment.

The case’s premise is the First Amendment, which guarantees to all Americans the ability to peacefully assembly, is being abridged by California’s A.G. Bonta by mandating a practice not established by federal law by collecting private donor records and lacking the necessary framework for protecting the Schedule B’s in a non-public database.

All of this, advocate on behalf of the petitioner Derek L. Shaffer contends, was a part of a bureaucratic process to indirectly burden donors’ ability to donate anonymously by leaking personal, apprehended information, which has been the case several times within California. Advocate Shaffer during oral arguments stated that “horrific” instances of threats and harassments have occurred as a consequence of the policy being upheld by the A.G.’s office in California opening the opportunity for others opposed to their views to possibly target these individuals following the series of accidental leaks that have occurred over the last decade.

Skepticism towards California’s ability to properly secure their databases, the organizations’ donors, such as Americans for Prosperity Foundation, Thomas More Law Center, Independent Women’s Law Center, American Civil Liberties Union, and PETA, feel there is a burden placed on their donors’ and their ability to associate with their causes by the looming threat of public exposure by the prevalent number of leaks. Often pressed by Shaffer and later noted by Associate Justice Sonia Sotomayor as a concern as it was that California has experienced numerous breaches, naturally calling into question the legitimacy of the Attorney General’s Office in managing the private donation records. 

As it came to questioning the respondents, U.S. Solicitor General Elizabeth B. Prelogar and California Deputy Solicitor General Aimee A. Feinberg, focused on the history of California and managing the security of the nonpublic databases, which store the private donation history and background information of people donating over $5,000.

Associate Justice Brett M. Kavanaugh spoke on this matter by mentioning that the amici briefs filed with the Supreme Court are ones that represented perspectives across a large swath of the ideological spectrums, all of which discuss the importance of the right to freely associate without the threat of the government intervening in their affairs, with the exception of a government interest. General Prelogar responded to say that it is for these reasons that it is important for the government to have a strong presence to “police charitable fraud to ensure that donors have confidence in charitable organizations”.

On July 01 st, 2021, the SCOTUS ruled in a 6-3 decision that a government may not force a nonprofit organization to disclose their donors due to the burden placed on those donating to causes important to themselves.