State law on donor disclosure is unconstitutional, US solicitor general says

President Donald Trump's administration on Tuesday urged the U.S. Supreme Court to find unconstitutional a California law requiring nonprofits to disclose the names of large donors to California Attorney General Xavier Becerra.

Acting Solicitor General Jeffrey B. Wall argued the state law requiring disclosure of donors was not narrowly tailored to a compelling government interest.

"The required disclosures here lack a reasonable fit to the asserted purpose of regulating charities that operate in the state," the solicitor general wrote.

Wall agreed with conservative nonprofits -- Americans for Prosperity Foundation, founded by David H. and Charles Koch, and the Thomas More Society -- that disclosure of donors' identities violates their freedom of association under the First Amendment.

The Supreme Court asked the solicitor general for input on the appeal of a March 2019 en banc ruling by the 9th U.S. Circuit Court of Appeals reversing Senior U.S. District Judge Manuel L. Real, who granted an injunction for the nonprofits.

That en banc decision drew a dissent from several 9th Circuit judges appointed by Republican presidents.

Judge Sandra S. Ikuta, an appointee of President George W. Bush, cited a Supreme Court decision allowing the NAACP to keep the names of its donors private in the 1950s. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).

"The Supreme Court has long recognized this danger and held that such compelled disclosures can violate the First Amendment right to association," Ikuta wrote.

A state Department of Justice attorney argued successfully before the 9th Circuit that donor information from tax-exempt organizations is used to investigate fraud but is not made public.

State law requires such organizations to disclose to the office their Schedule B IRS 990 forms, which include the names and addresses of individuals who gave at least $5,0000, or 2% of the groups' annual budgets, the state argued.

In a brief to the Supreme Court, Becerra's deputies argued the disclosure is confidential and would not endanger donors.

"There is no comparison, moreover, between California's Schedule B requirement and the information demands this court has held to be unconstitutional," the state's attorneys added.

Wall, however, argued the compelled disclosure is reasonably likely to lead to harassment and reprisals. Americans for Prosperity Foundation v. Becerra, 19-251 (U.S., filed Aug. 26, 2019); Thomas Law Center v. Becerra, 19-255 (U.S., filed Aug. 26, 2019).

Louie H. Castoria, a San Francisco-based partner with Kaufman Dolowich Voluck LLP who represents the Thomas More Society, praised the U.S. government brief.

"Charitable entities should not be required to disclose confidential donor information to state officials who do not need it," Castoria wrote in a prepared statement. "Such disclosures have a chilling effect on First Amendment rights."