California Attorney General Puts Donor Privacy in Danger

The 9th U.S. Circuit Court of Appeals has overturned an injunction that, until a few weeks ago, protected the conservative nonprofit Americans for Prosperity Foundation from having to release the names of some of its major donors to the California attorney general. The attorney general’s attempted involvement in the operations of a private organization stands in direct opposition to the essential American principles of free speech, free association and free thought. 

In March 2013, the office of the California Attorney General Kamala Harris demanded that AFP, like other nonprofits raising money in the state, submit a “Schedule B” federal tax form.  Schedule B requires the names of an organization’s major donors, which are identified using a complex formula. (Applying this formula to the Mackinac Center, which has a very wide network of supporters, would return fewer than five names.) Harris said the information is necessary to prevent fraud. When AFP resisted, Harris threatened to revoke its tax exemption, suspend its registration and impose fines. Finally, AFP sued in December 2014. It claimed that the First Amendment shields it from having to release the names, and introduced testimony saying that anonymity is a priority for conservative groups that have been targeted for investigation by the IRS. The district court agreed, and granted AFP an injunction to protect its donors’ privacy. 

In January of this year, however, the 9th Circuit overturned the injunction. It found no evidence that disclosing the donor information would cause “actual harm” to AFP, since Harris’ office promised to keep the names confidential. AFP maintains that releasing the names would threaten current supporters and chill future support, because Harris’ office has previously made inadvertent disclosures of other nonprofits’ donor information. It also argues that Harris perceives AFP as a political opponent of her U.S. Senate bid and is using the lawsuit to pressure the group. Mackinac Center attorneys are keeping a close eye on the outcome of this case as it proceeds through the federal court system. 

This situation illustrates with startling clarity how desperately our country requires a voice to speak up for our freedom of association. What possible need do government officials have to scrutinize the donor rolls of private organizations and collect their donor information? It is painfully easy to imagine how governmental power players might seek to circumvent the democratic process by interfering with private citizens’ right to associate in furtherance of an opposing political goal. And it is up to all of us — left, right, and center — to see that this never happens. 

The Mackinac Center has stood for free discourse and principled association since its inception. We believe in the power of civil society to enrich our culture with a variety of viewpoints, and in the voluntary associations that safeguard free speech and thought. These are the best tools we have to build a healthy, accountable republic. We stand with the Americans for Prosperity Foundation in its refusal to surrender its constitutional rights, and we thank our dedicated community of supporters for their unwavering encouragement in our pursuit of truth and defense of liberty. 

For more information about how to protect your privacy, please contact the Mackinac Center Advancement Department at (989) 631- 0900.