Rory Little on Americans for Prosperity Foundation v. Bonta

The Supreme Court Strikes Down California’s Charitable Donors Disclosure Law


Photo of Rory LittleSixty-three years ago, when being identified as a member of the NAACP might get a person killed, the Supreme Court (in Patterson) unanimously struck down Alabama’s effort to get the NAACP’s individual membership lists. As Chief Justice Roberts notes in today’s decision, that move by the Alabama AG was “part of an effort to oust the [NAACP] from the State.”  The Court ruled that “privacy in group association” can be “indispensable to … freedom of association,” which is itself protected by the First Amendment.

This morning (in Americans for Prosperity Foundation v. Bonta), a 6-3 majority of the Court struck down a California state law that requires tax-exempt charities to send to the State a copy of a federal tax form that identifies its major donors.  The Court’s opinion says it is merely applying the Patterson decision – but as Justice Sotomayor writes in dissent (for herself and Justices Breyer and Kagan), “the same scrutiny” applied “in the Jim Crow era … for fear of … violence” ought not be applied without nuance to a very different context today.  Meanwhile, today’s decision not only strikes down a somewhat obscure California law, but also threatens a similar federal law and, indeed, other campaign finance disclosure rules that have for decades been essential parts of both federal and state solutions to rampant electoral corruption.

The facts are these.  Federal law already requires organizations claiming a tax-exempt status to disclose the names and addresses of persons who donate over $5,000 (or over 2% of the group’s total contributions).  California law merely requires charities operating in this State to file a copy of their federal form.  Two organizations that espouse conservative views (the “Americans for Prosperity Foundation” is supported by the Koch brothers) declined to file a full copy of their federal form with California.  When threatened by the California Attorney General (then Kamala Harris, and now Rob Bonta, hence the case title) with suspended registration to operate in California, the two groups sued.  The District Court (Judge Manny Real) twice enjoined California from collecting the identification forms; the Ninth Circuit twice reversed.

This morning’s decision reverses the Ninth Circuit (which has fared quite badly with the Supreme Court this Term: 1 affirmance and 15 reversals!). The majority opinion begins by solidifying the general principle that the First Amendment has been “long understood” to implicitly protect a “freedom of association.”  The Court then notes that “compelled disclosure of affiliation with groups engaged in advocacy” can burden that freedom, and cites Patterson as the best example.  Compelled disclosure can have a “chilling effect” on associations that are controversial, and “privacy” demands protection when “risk of reprisal” is real.

All this sounds fine; and good.  So in light of Patterson, why wasn’t the Court similarly unanimous today?  Two reasons.  The first is simple political realities.  It is not news that our society today is wrought with ideological partisanship – although whether partisan division is any more passionate today, than it was in the 1950s and 60s, could certainly be debated.  But certainly the fear – and the reality – of violence against members of the NAACP in the wake of Brown v. Board and massive resistance to racial desegregation, was real then.  Whether the same level of violence and fear justifiably exists today, for members of conservative groups who often publicly declaim their membership, can also be debated.  As Justice Sotomayor points out in dissent, there are no stark examples of such reprisals, in the record today, as there were regarding the NAACP 60 years ago.  The 6-3 split today is thus the entirely predictable political grouping that would reflect the Justices’ assessment of these debates.

The second reason for the 6-3 dispute today is a matter of more arcane – but legally important – legal doctrine, as much as it is “political.”  First, Chief Justice Roberts says he is settling the legal standard for evaluating compelled disclosure requirements – and also campaign finance requirements – as “exacting scrutiny.”  For constitutional law practitioners, as well as students, this means that to uphold a challenged law, a court must find a “sufficiently important governmental interest” and then also find a “substantial relation” between the challenged law and the government’s interest.  This is slightly different from “strict scrutiny,” which requires a stronger “compelling” government interest, and then find that the challenged law is the “least restrictive means” available to achieve that interest.  Indeed, it is close – but not identical – to a middle-ground “intermediate scrutiny” long employed by the Court to evaluate gender discrimination.  A proliferation of such inexact terms is not a happy development – especially when the precise meanings have perplexed law students, teachers, courts, and scholars for decades.  And of course, none of those terms are found anywhere in the text of the Constitution: why isn’t our most ardent textualist, Justice Gorsuch, up in arms about that?

Still, it is good for the Court to try to be clear, at least for now (but see below), about the legal standards courts should apply.  And the dissent today does not really take issue with these standards.  But Justice Sotomayor strongly disagrees – at great length – with application of the standards to the facts of this case.  The plaintiffs here, she says, failed to show that they are “actually burdened” by the disclosure requirement, and certainly not enough to make out a successful “facial” challenge before some specific application with real consequences.  Moreover, a requirement that a law be “narrowly tailored” to meet a specific problem, should be done with nuance, specific to the context of the claim.  “One size should not fit all,” is her effective position: the fears of violent reprisal in the age of Jim Crow ought not be evaluated as “equal” to the unsupported claims of “chilled” association relied upon here.

The majority simply disagrees with both the legal evaluation and the factual arguments of the dissent; and six Justices is greater than three.  Chief Justice Robert’s opinion is not unreasonable in its relatively dispassionate evaluation; and the legal doctrine is not dramatically distorted.  Justice Thomas, however, filed a short solo concurrence expressing clear disagreement with the majority’s doctrine; and Justice Alito also filed a short concurrence (joined by Justice Gorsuch) to suggest that the differences between “strict” and “exacting” scrutiny are not yet settled.  With three of the six majority Justices still disputing the doctrine, I think it remains mystifying as to what, precisely, should be taught in our Constitutional Law classes.

Meanwhile, Justice Alito says this result in this case “was not even close.”  And Roberts expressly leaves the constitutionality of the federal disclosure requirements open.  So, like so much of the doctrinal shifts suggested by this Term’s decisions, “the future lies ahead of us.”  Whether this will also lead to overturning of the federal charity disclosure law, as well as campaign finance laws in general, is left not just open, but open to great doubt.