US may argue in California charity donors cases at high court

The U.S. Supreme Court ruled Monday that acting U.S. Solicitor General Elizabeth B. Prelogar may argue in cases involving a California law requiring charities to disclose their donors.

The U.S. Department of Justice appears likely to do an about-face on the two related cases. President Donald Trump's administration supported the plaintiffs' contention the requirements are an unwarranted invasion of charities' privacy. The Supreme Court agreed in January to take the cases.

Last month Prelogar filed a motion to argue before the court and an amicus brief laying out the new administration's position. She asked the court to vacate and remand the appellate decision to "reassess the as-applied burden on associational rights." Prelogar argued that "compelled-disclosure requirements are subject to exacting scrutiny," but not when disclosure is required "as conditions on the receipt of government subsidies." She also rejected the plaintiffs' arguments for strict scrutiny.

The rule in question requires charities to file IRS Form 990 Schedule B, disclosing their donors, to be recognized by the state Registry of Charitable Trusts. The Thomas More Society persuaded a district court judge to enjoin the rules.

The high court will hear the cases on April 26. The original filings named Attorney General Xavier Becerra, but with his departure to join Biden's cabinet, acting California Attorney General Matthew J. Rodriquez is the named defendant. Americans for Prosperity v. Rodriquez, 19-251 (S. Ct., filed May 18, 2019). and Thomas More Law Center v. Rodriquez, 19-255 (S. Ct., filed Aug. 26, 2019).

"California's donor reporting rules simply require charities to provide the state, on a confidential basis, the same information about major donors that they already provide to the federal government," Becerra had said in a news release. "This information helps the state protect consumers from fraud and the misuse of their charitable contributions. We look forward to defending our rules before the Supreme Court."

The plaintiffs have a different view, as did the Trump administration.

"As this court's precedents make clear, compelled disclosures that carry a reasonable probability of harassment, reprisals, and similar harms are subject to exacting scrutiny, which requires a form of narrow tailoring," then-Acting U.S. Solicitor General Jeffrey B. Wall argued in a November amicus brief.

"The district court enjoined the attorney general's donor-disclosure rule because his office had an extensive record of disclosing that confidential material, and donors were likely to face harassment and threats as a result," attorneys with the Alliance Defending Freedom and the San Francisco firm Kaufman Dolowich & Voluck LLP wrote in their 2019 petition to the court in the Thomas More case.

In a December supplemental brief, the same legal team argued, "The United States unequivocally agrees with the Thomas More Law Center that (1) the Ninth Circuit's holding is seriously wrong; (2) the Ninth Circuit's opinion impairs free speech and association nationwide; and (3) only this court can repair the damage."

The state's brief, filed the next day, mainly focused on the level of scrutiny courts should apply to the California law. It also argued the court must consider the state's right to combat unscrupulous charities.

"California's interests in policing fraud and self-dealing moreover outweigh any minimal burden on petitioners' associational interests," the state attorney general argued.

Of course, the United States no longer "unequivocally agrees." While Prelogar has not so far joined the many mainly conservative groups who have filed amicus briefs, last month she requested time to argue before the court. She is widely expected to reverse the administration's position on the case.

In a February letter to Prelogar, a group of Democratic U.S. Senators urged her office to reverse course on the case. California Senators Dianne Feinstein and Alex Padilla were among the 11 who signed.

"The Trump administration's position in this case was wrong on the merits, imperils the United States' interests, and, if adopted by the Court, would result in a further flood of anonymous money -- or 'dark money' -- into our political system, causing great harm to our democracy," they wrote.