Many media pundits will reflexively view the recent Supreme Court decision to strike down the California rule mandating that nonprofit groups disclose their top donors as a victory for conservatives such as Charles Koch. While the Koch-associated group Americans for Prosperity (AFP) served as the lead plaintiff to challenge the law, this 6-3 ruling by the justices should also be viewed as a loss for Vice President Kamala Harris.
It was Harris, the former California attorney general, who first interpreted the state’s regulations on charities to mandate that nonprofit (501c3) organizations report all gifts greater than $5,000 via the IRS Schedule B donor list.
Ostensibly, Harris was simply guarding against nonprofit lawbreaking, self-dealing, or conflicts of interest. But her rule was the equivalent of asking everyone to send her their checking account statements, just in case someone was laundering money. As a law enforcement officer, she had the right to subpoena IRS records, but it hers appeared to be a fishing expedition in search of so-called “dark money,” the allegedly nefarious influence-machine of the right.
The Supreme Court’s ruling shouldn’t be associated with Harris just because she issued the original requirement on nonprofits. She also was the first to strictly enforce the law, and she persisted in defending it even after an initial court ruling against it.
After more than a decade – in which California deemed AFP to be in compliance with state law, despite the organization not filing the list of its major donors – Harris chose to reinterpret the law to mean that an IRS filing was not sufficient. When AFP declined to comply, fearful that the personal information of conservative donors would be disclosed, Harris doubled down. So AFP went to court. A ruling in its favor by the federal district court did not deter Harris or her successors in the state Attorney General’s Office. The state won a Ninth Circuit Court of Appeals ruling, but now has lost in the nation’s highest court.
It’s worth mentioning what Harris had to overlook in order to persist in defending her interpretation of California’s charity law. She had to ignore a key precedent from the 1958 Supreme Court ruling that overturned Alabama’s Jim Crow requirement that the NAACP disclose donor information. At the time, this was practically an invitation to lynching. Harris had to overlook the fact that the District Court cited “threats, protests, boycotts, reprisals and harassment directed at those individuals publicly associated with AFP.” She also had to minimize the fact that “inadvertent” disclosures of donor information already had occurred, and that information leaks often occur (see the recent disclosure of the tax returns of some of America’s wealthiest businessmen).
It’s hard to see Harris’s interpretation of the California law as anything more than a partisan political play that was unnecessary to her role in law enforcement and potentially motivated by the Democratic hysteria about conservative “dark money” – even as the political left relies on complex organizations to funnel funds to its own causes.
So, the Supreme Court ruling appears to be a defeat for Harris, as well as for her successor, Xavier Becerra, who’s now the federal Health and Human Services secretary. Both were willing to ignore the potentially chilling effect they imposed on the free-speech rights of anyone supporting a controversial group, whose donors might fear disclosure.
Let’s stop judging an organization’s public positions based on who their private supporters might be. That’s as true for the American Civil Liberties Union, which supported the Koch position in the case, as it is for AFP. Both deserve to have their arguments judged on the merits, not based on the sources of their money.