Liberal Groups Break With Whitehouse Over Controversial Donor Disclosure Rule

ACLU and NAACP have joined a Supreme Court challenge to the California rule

Sheldon Whitehouse
Sen. Sheldon Whitehouse (D / Getty Images
March 5, 2021

The American Civil Liberties Union and other prominent left-wing groups filed a brief supporting a Supreme Court challenge to California's donor disclosure rules, breaking with Sen. Sheldon Whitehouse (D., R.I.) and other Democratic lawmakers who oppose "dark money" political activity. 

The controversial rule requires any charity that raises money in California to disclose its donors to the state attorney general. Critics say the rule deters would-be donors and members, chilling First Amendment activities.

Whitehouse is urging the Justice Department to reverse its position and support California's rule in the Supreme Court. Solicitors general seldom reverse positions in ongoing cases after a change in administration, though the practice has become more frequent in recent years.

The ACLU's new brief suggests that Whitehouse is at odds with his usual allies. The NAACP Legal Defense and Educational Fund and the pro-LGBT Human Rights Campaign have both joined the brief and insist donor anonymity has been important for the success of their work. Those groups are all subject to the disclosure rule at issue.

Some of the Court's cornerstone freedom of association cases come out of the civil rights era, when state governments attempted to obtain internal records from groups like the NAACP, ostensibly for legitimate regulatory purposes. 

"As an organization that has engaged in litigation and advocacy that some have considered controversial, LDF has long had an institutional interest in ensuring the First Amendment associational rights and security interests of its donors and members," the brief reads.

Americans for Prosperity Foundation, the Koch-backed advocacy group, is the lead plaintiff in the donor disclosure case. California's rule has been in place for over 20 years. Though the state purports to keep contributor information confidential, in 2016 representatives of then-California attorney general Kamala Harris acknowledged numerous privacy breaches.

AFPF identified almost 1,800 instances in which information charities shared with the state wound up online, and also learned that the digital database where donor information is stored is vulnerable to cyber criminals. For the ACLU, those privacy failures are a decisive fact. 

"The record in this case discloses a disturbing pattern of failures to keep the forms confidential," the ACLU's brief reads. "California's assurances that previous mistakes will not be repeated is unlikely to persuade donors that their information, once handed over to the state, will remain confidential. The resulting chill to First Amendment interests harms donors, nonprofit organizations, and civil society writ large."

The ACLU brief urged the justices to hand down a narrow decision. If California is able to show in the future that it can maintain disclosure forms confidentially, the legal calculus might be different, the brief says. It also emphasized that the government has a strong interest in learning how political campaigns—as opposed to charities—are financed, so the Court's decision should be careful to protect public reporting of political contributions. 

"The Court should be careful to avoid overbroad pronouncements that might call into question the viability of disclosure requirements in appropriate contexts," the brief reads. "For instance, public-disclosure requirements serve especially compelling interests in the context of electoral campaigns, where transparency furthers the interest in 'curbing the evils of campaign ignorance and corruption.'"

In a letter urging the Justice Department to defend California's rule, Whitehouse wrote that California keeps contributor information "entirely confidential, and there is no evidence to suggest that California's regime could lead to public harassment or other negative consequences." 

The letter also distinguishes between groups like the NAACP, for which donor anonymity is essential, and "industry-funded 'charitable' front groups like plaintiff Americans for Prosperity Foundation," which face "no comparable threat of reprisal." 

Whitehouse's letter was signed by all 11 Democrats on the Senate Judiciary Committee. 

A spokesman for Whitehouse did not respond to the Washington Free Beacon's inquiries.

The case, No. 19-251 Americans for Prosperity Foundation v. Becerra, has not yet been set for argument but will likely be heard in April. A decision will follow in the summer.