SACRAMENTO — A Virginia-based conservative group filed a federal First Amendment lawsuit last week accusing California Attorney General Kamala Harris of engaging in the kind of activity that was the subject of the recent scandal involving the Internal Revenue Service. Are state officials trying to chill the speech of conservative nonprofits?
“Not only did IRS employees improperly target groups based on politics, but they also improperly demanded a host of details about the groups’ activities, according to a report on the abuses by a Treasury Department inspector general,” according to a Washington Post report about the federal scandal. The IRS even demanded information about some of these groups’ smallest donors.
Now the Americans for Prosperity Foundation is saying the state of California is improperly demanding information about its donors – and is threatening unusually harsh penalties if the group doesn’t comply. One other conservative group has filed a separate lawsuit against the attorney general, which is now in the Ninth Circuit.
Tax-exempt charitable groups are required to file an annual report (Form 990) with the IRS and a separate form (Schedule B) listing the names and addresses of people who donate more than $5,000 in one year. The 990 is a public document – but the IRS must keep the donor information private.
Like some other states, California requires these groups to register with the attorney general every year. In its lawsuit, the AFP Foundation says it has been filing its 990 with the state every year since 2001. But recently Harris’ office rejected the report as incomplete because it doesn’t include the donor lists. This appears to be a new policy.
Harris’ office hasn’t been served and is withholding comment. Its letter to the foundation said the donor information would be confidential and is a critical part of its police powers. But the lawsuit does raise relevant questions. Has something changed? Is it applying this standard to all charities, regardless of politics?
“The First Amendment grants individuals who donate to private advocacy organizations the right to remain anonymous lest public disfavor and harassment chill their speech,” according to the lawsuit. Yet the group says it has been given an ultimatum: disclose donors and threaten such speech, or refuse and be put out of business in California.
The foundation is a 501(c)3 that promotes low taxes and cuts in government. Such groups (on the left and right) are allowed to “educate” about public policy and do a little lobbying for laws and initiatives. Some groups have been accused of being overtly political even if they’re not directly advocating for candidates.
“(C)urrent and potential donors are understandably afraid that having their identities disclosed will put them and their families at risk,” according to the complaint, which details some of the protests its supporters have faced. I once worked for a nonprofit group that did not list donors and found that people often want to support a cause, but are worried that doing so will open them up to harassment.
After a court in 2009 released the names of donors to Proposition 8, the statewide initiative that banned gay marriage, supporters say they faced protests at their homes. Mozilla’s chief executive officer was forced to resign this year after his $1,000 donation to that campaign was publicized. Donors have understandable fears about retribution for backing unpopular causes.
Proposition 8 was a political campaign, where disclosure rules are stringent. Supporters of charitable and educational groups, however, are allowed to keep their donations from public view. The Koch Brothers are co-founders of the AFP Foundation. These conservative billionaires have become political lightning rods, so supporters seem to have valid fears.
California officials had targeted the Kochs by imposing “fines on two nonprofit organizations and wrongly claimed in public that these groups were part of the ‘Koch Brothers’ Network’ of dark money political nonprofit corporations,” the lawsuit alleges. The AG’s office was involved in that case, but hasn’t alleged any wrongdoing in this one.
Harris has been accused in the past of using her position in a politicized way. The Sacramento Bee has accused her of being “especially freewheeling” in the way she has drafted titles and summaries for propositions.
Harris has long been touted as a rising national political star. If so, then she ought to learn some lessons from a scandal that gave the IRS such a black eye.
Steven Greenhut is the California columnist for U-T San Diego. Write to him at firstname.lastname@example.org.