Guess Who Just Admitted Harris and Becerra Violated the First Amendment
The Supreme Court in January agreed to hearAmericans for Prosperity Foundation v. Becerra, which alleges that California violated the First Amendment by demanding that conservative nonprofits in the state — indeed, all nonprofits — disclose their donors to the state attorney general. That policy started under Jerry Brown and was enforced by his successors, Vice President Kamala Harris and Secretary of Health and Human Services nominee Xavier Becerra. Becerra continues to defend the policy in court, even though it runs directly afoul of a 1958 decision, NAACP v. Alabama ex rel. Patterson, which established that the First Amendment right to association requires protecting the privacy of a group’s members and supporters.
Under Harris and Becerra, the California attorney general’s office was callous with the security of this sensitive information. The trial disclosed extensive evidence that the California AG’s office “systematically failed to maintain the confidentiality” of donor lists.......
The civil-rights context of the NAACP’s fight with Alabama in 1958 highlighted the urgency that this issue can have. Today’s cancel-culture wars against people who give money to conservative causes have produced dramatic examples as well, particularly in California. Merely donating to the anti-same-sex marriage Proposition 8 was enough to result in harassment and, in the case of Mozilla CEO Brendan Eich, losing his job — even though Proposition 8 passed with the support of a majority of Californians.
For some California nonprofits, the stakes are higher still. An amicus brief in the case filed by Citizen Power Initiatives for China, a pro-Chinese-democracy group founded by a survivor of the 1989 Tiananmen Square massacre, wrote that California’s promises of confidentiality are “little comfort to groups like Citizen Power Initiatives whose donor lists are a target for sophisticated hacks by foreign powers and their agents”......
Dozens of other conservative and libertarian individuals and organizations have filed briefs supporting the challenge to California’s policy, ranging from 22 states and Mitch McConnell to the Cato Institute, the Chamber of Commerce, and the Becket Fund for Religious Liberty.
Becerra leads the defense of the case. His brief, filed in December, scoffed at “any claim that California’s requirement could lead to public harassment or other negative consequences,” reflecting his and Harris’s cavalier attitude toward the concerns of everyone from pro-marriage American conservatives to Chinese dissidents.
But you know who else isn’t buying the arguments of Harris and Becerra? For one, the Biden-Harris administration, whose brief filed this week argued that the Court should throw out the Ninth Circuit’s pro-California ruling and send the case back — not because compelled donor disclosures are generally bad, but because the California attorney general’s office under Harris and Becerra was so reckless and incompetent in protecting donor information:
On these unique facts, where [Harris’s and Becerra’s] history of not maintaining Schedule B [donor] information as securely as it should have raises a serious concern, . . . the overall deterrent effect on the exercise of First Amendment rights should be assessed as a function of both . . . the probability of public disclosure and the severity of the harms such disclosure could produce. (Quotations omitted; emphasis in original).
The Biden-Harris administration’s brief also noted the unusually coercive nature of the Harris-Becerra approach to compelled disclosure, which unlike disclosure to the IRS, is not just a condition of receiving a tax exemption:
Charitable organizations that fail to comply are not merely denied a subsidy but also barred from operating and fundraising in the State. . . . [Becerra] has not sought to defend California’s Schedule B disclosure requirement as a condition on governmental subsidies. When petitioners did not comply with the requirement, [Harris] informed them not only that they might lose their state tax exemptions but also that they could be barred from operating or soliciting contributions in California.
The administration that employs Harris — and is seeking to employ Becerra — is not the only voice on the left that thinks they went too far. The American Civil Liberties Union, in a brief joined by the NAACP Legal Defense and Educational Fund and the Human Rights Campaign, told the Court: