The Supreme Court is being asked to determine whether California’s ambitious Attorney General and candidate for U.S. Senate, Kamala Harris, has violated the First Amendment and federal law protecting confidential tax return information.
Harris is California’s top charity regulator, and has been delegated broad, unbridled discretion to tell charities and nonprofit advocacy groups what they must file to obtain a license to speak with potential and existing donors.
Nonprofit organizations are some of the most effective critics of government, other powerful institutions -- and ambitious politicians -- making them especially vulnerable to the desire to bully and censor them. The Lois Lerner/IRS scandal is a good example.
Harris decided to push the limits by telling charities that they may not solicit contributions unless they first file a list of their top donors, which is an extortionate prior restraint on speech. Those donors are found on a confidential “Schedule B” to the tax returns filed by nonprofits with the IRS.
Federal law protects confidential tax return information, and even provides civil and criminal penalties against federal and state officials who violate the confidentiality law. The IRS was ordered to pay the National Organization for Marriage for disclosing that organization’s Schedule B donor information to hostile blogs.
As or even more importantly, what Harris is doing flies in the face of the 1958 landmark Supreme Court decision in NAACP v. Alabama. That case held that membership lists are protected by the First Amendment from demands of states and their attorneys general.
The petition for the court to hear this case filed by the Center for Competitive Politics will be supported by an amicus brief filed by the Free Speech Coalition of Virginia, along with dozens of policy advocacy groups, and even charities such as animal sanctuaries. 501(c)(3) and 501(c)(4) nonprofit organizations may still add their name to the amicus brief in what may be a landmark case protecting privacy and rights of private association.
Here is a clip from the amicus brief to be filed explaining the collaboration between Lois Lerner and state charity officials:
A bipartisan report of the Senate Finance Committee about the Internal Revenue Service’s treatment of nonprofit organizations, issued August 5, 2015, references various unlawful disclosures of confidential tax information by the IRS, including the Form 990 Schedule B information of the National Organization of Marriage.[1]
Recent publicized violations of disclosure of confidential tax return information by the IRS -- and of course what is publicized is based only on the times that the IRS was caught -- demonstrate that even the federal service with its supposedly sophisticated guards of confidentiality is untrustworthy. It defies logic to believe that state attorneys general, a partisan elected position subject to the temptations and whims of partisan politics no matter how dedicated and professional, would have better safeguards of such confidential tax return information.
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