Whitehouse Pushes Justice Dept. to Support Controversial Donor Disclosure Rule

DOJ traditionally avoids switching sides in Supreme Court cases between administrations

Sen. Sheldon Whitehouse (D., R.I.) / Getty Images
February 9, 2021

Sen. Sheldon Whitehouse (D., R.I.) and a group of Democratic lawmakers are urging the Justice Department to buck tradition and withdraw the Trump administration-backed challenge to a controversial California rule that would require charities to disclose their donors to the state’s attorney general.

Critics say the rule, which is currently before the Supreme Court, would allow the state government to violate the First Amendment rights of charities and donors alike.

Solicitors general seldom change sides in Supreme Court cases after a change in the administration. Whitehouse's letter represents unwelcome political pressure as Biden's Justice Department seeks to course-correct from the Trump years without making waves before the High Court.

The Americans for Prosperity Foundation has led the legal challenge to the California policy, claiming it chills speech, association, and donor contributions. Though the state purports to shield contributor information that it receives, a federal trial court found that state officials "systematically failed to maintain their confidentiality."

A broad coalition of advocacy groups supported AFPF before the Ninth U.S. Circuit Court of Appeals, including the Council on American-Islamic Relations and the NAACP Legal Defense Fund. The Supreme Court’s landmark association cases have their roots in the civil-rights era, when Jim Crow governments used state means to obtain internal records from groups like the NAACP. 

"The solicitor general got it right the first time. Nonprofits need the freedom to keep their donor lists private to protect their supporters from government harassment," Institute for Free Speech president David Keating told the Washington Free Beacon. "In fact, the senators who are calling for the Department of Justice to reverse itself include some who encouraged the IRS targeting of Tea Party groups under the last Democratic administration."

Whitehouse defended the rule in a letter to acting solicitor general Elizabeth Prelogar, arguing that anonymous political spending has "brought our democracy to the brink of destruction." The senator claimed that financiers who support groups backing AFPF’s lawsuit have since been linked to the Jan. 6 "Stop the Steal" rally in Washington that ended in a riot at the Capitol. 

He added that a victory for the plaintiffs would raise legal questions about the IRS’s mechanisms for collecting information about nonprofit donors. 

"It is currently within the capacity of the United States government to police this mess, but a broad constitutional ruling ... would destroy that ability, permanently entrenching the power of this influence network," the senator wrote. 

Whitehouse has pressed for a wide-ranging investigation of the conservative legal movement and its financial supporters. Such a probe would rest on shaky legal footing.

Supreme Court justices generally frown upon the type of reversal Whitehouse is pushing for because of the unique role the solicitor general plays in legal proceedings. The SG participates in about two-thirds of the Court’s cases each term and sometimes advises the justices as to which cases they should hear. Abrupt position changes can undermine the credibility of the office, and by extension the Court’s deliberations. 

Prelogar is serving as interim SG and will become the principal deputy once a nominee is named and confirmed. She is a veteran of former special counsel Robert Mueller’s probe and joined the administration after a stint in private practice.

The cases, No. 19-251 Americans for Prosperity Foundation v. Becerra and No. 19-255 Thomas More Law Center v. Becerra, have not yet been set for argument but will likely be heard in April. A decision will follow in the summer.