Harris puts up First Amendment fight but loses first round in court

It must have seemed like a good political fight to pick at the time for California Attorney General Kamala Harris.

The billionaire conservative Koch brothers were the left’s boogeyman, and the Supreme Court’s recent Citizens United decision created the perfect storm for outlandish fears among Democrats.

Ms. Harris, a rising star in California Democratic circles, saw an opportunity. Flexing the state’s charity disclosure laws, she demanded that charities turn over secret documents detailing donors. No other state required the document, which usually went only to the IRS under strict privacy protections.

The result was a case that went to the Supreme Court. The justices gave Ms. Harris a firm rebuke and reaffirmed the fundamental constitutional rights of free association.

Those who battled Ms. Harris say it was also a chilling warning about her willingness to use government power to encroach on the First Amendment and a striking incompetence in carrying it out.

“They were trying to intimidate and silence conservative organizations. I just don’t think there’s too much doubt about that,” said Brad Smith, a professor at Capital University Law School in Ohio.

Ms. Harris told the courts she was trying to stop charity fraud and needed to know who the donors were to sniff out any self-dealing or illegal business practices.

Conservative groups she targeted, including the Americans for Prosperity Foundation, said she was trying to score political points by sending warning letters and threatening fines.

They argued that Ms. Harris could get a subpoena if she needed the information for an investigation.

All nine justices agreed that Ms. Harris’ policy infringed on the foundation specifically, but six justices went further by holding that the law and Ms. Harris’ enforcement of it were blatantly unconstitutional.

“The upshot is that California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases involving filed complaints,” Chief Justice John G. Roberts Jr. wrote in the critical opinion.

‘Shocking’ mistakes

Every state requires charities that solicit within its borders to be registered. In California, that duty falls to the attorney general. Ms. Harris won the position in 2010. A few years into her term, she began sending warnings to charities she said were out of compliance because they hadn’t submitted their major donor lists and annual registrations.

State law had long required it, but previous attorneys general hadn’t pursued the matter. With national Democrats increasingly complaining about “dark money” in politics, Mr. Harris started rejecting charity registrations that didn’t include donor lists in 2013.

The document in question is known as Schedule B of Form 990, which is filed with the IRS. The tax agency keeps those forms confidential, though groups can release them.

The Americans for Prosperity Foundation did not want to release its form. It said Ms. Harris was targeting the organization because of its ties to David and Charles Koch, the billionaires at the heart of Democrats’ dark money complaints.

Ms. Harris warned of impending fines, and the foundation went to court in 2014.

The issue was debated between a federal district judge and the 9th U.S. Circuit Court of Appeals. After a bench trial, Judge Manuel Real eviscerated Ms. Harris in a 2016 ruling that said she could not “find a single witness” who indicated she needed the Schedule B forms to carry out her investigations.

The 9th Circuit was more forgiving of Ms. Harris. In a 2018 ruling, the appeals court said the state had a compelling need for the information.

The case AFPF v. Bonta eventually reached the Supreme Court. By then, new Attorney General Rob Bonta was tasked with defending his predecessor’s behavior.

Hundreds of groups with shockingly diverse political ideologies backed the Americans for Prosperity Foundation. They included People for the Ethical Treatment of Animals, the American Civil Liberties Union, the Council on American-Islamic Relations, the Nature Conservancy, the Southern Poverty Law Center, the Missionary Sisters of the Most Sacred Heart of Jesus, NARAL Pro-Choice North Carolina, the Electronic Frontier Foundation, the U.S. Chamber of Commerce and Senate Republican leader Mitch McConnell.

Ms. Harris’ position received support from a much narrower slice of America: attorneys general in Democratic-led states, a group of Democratic senators and some liberal-leaning campaign and ethics watchdog groups such as the League of Women Voters and Public Citizen.

The Harris campaign did not respond to an inquiry for this report.

The Washington Times also reached out to five government ethics and campaign groups that backed Ms. Harris’ argument in the courts. None responded.

First Amendment lawyer Floyd Abrams filed a brief at the Supreme Court not necessarily backing Ms. Harris’ actions but defending the broader concept of donor disclosure.

“My own views are closer to hers than where the Supreme Court wound up,” Mr. Abrams told The Times. “I favor more disclosure rather than less as to who is trying to persuade the public on highly disputed issues of public policy.”

Mr. Smith, who ran the Center for Competitive Politics, a Koch-backed organization that also found itself under Ms. Harris’ thumb, said that while the attorney general argued she could keep the information secret, the groups that supported her were hoping for the opposite.

“It kind of revealed how at least a lot of Democrats looked at this,” he said. “They weren’t interested in the attorney general getting this because it made her law enforcement job easier. They were interested in this because they wanted it to be made public.”

Unfortunately for Ms. Harris, that was what happened.

At trial, Judge Real found that Ms. Harris’ office had posted more than 1,400 Schedule B forms to its public website, including some as the trial commenced.

“While human error can sometimes be unavoidable, the amount of careless mistakes made by the Attorney General’s Registry is shocking,” the judge said.

Ms. Harris’ sloppy approach also weighed heavily on Chief Justice Roberts at the Supreme Court. “Here the State’s assurances of confidentiality are not worth much,” he wrote.

John Bursch, who argued on behalf of the Thomas More Law Center, which also challenged Ms. Harris’ policy, called her effort “a pretty shocking First Amendment abuse.”

“She demanded that all nonprofits fundraising in California turn over their major donors’ names and addresses without any need for that information. And then she allowed her office to leak that confidential information like a sieve and did nothing about it,” said Mr. Bursch, senior counsel at Alliance Defending Freedom.

‘Abuse of power’

Ms. Harris’ fight mirrored one from 50 years earlier.

At the time, segregationist Alabama Attorney General John M. Patterson demanded that the National Association for the Advancement of Colored People turn over its member lists. In a 1958 ruling, the Supreme Court unanimously shut him down.

That case became the backbone of Chief Justice Roberts’ 2021 ruling against Ms. Harris’ program.

“We are left to conclude that the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights,” the chief justice wrote. “And this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important. We therefore hold that the up-front collection of Schedule Bs is facially unconstitutional.”

Mr. Smith said Ms. Harris’ approach differed from that of the segregationist Alabama attorney general in one way: He went after the NAACP while she cast her net more broadly, demanding donor documents from all charities.

Still, the conservative groups that received her warning letters were most vociferous in defying her demands.

Mr. Smith said it was an open question how much Ms. Harris was involved in the operation.

“I don’t know how much she was up there making the decisions at the top or just signing off. But it’s an indication she doesn’t have much strong interest in privacy, and she is not concerned enough about abuse or the potential abuse of power of government to veto this kind of thing,” he said.

By the time the case reached the Supreme Court, Ms. Harris was vice president. That created the odd situation in which the Justice Department ended up opposing, to some extent, her handling of the matter.

Acting Solicitor General Elizabeth Prelogar said Ms. Harris’ actions risked a “chilling effect” on potential donors to the Americans for Prosperity Foundation. She called for the case to be returned to the lower courts for more examination.

The justices delivered a full rebuke instead.

Ilya Shapiro, who filed briefs for the Cato Institute’s backing the foundation, said the case was a worrying signal about what Ms. Harris might do in the White House.

“Harris really doesn’t like ‘misinformation’ and ‘hate speech,’ so wants to put political pressure on organizations she doesn’t like,” said Mr. Shapiro, now director of constitutional studies at the Manhattan Institute. “The law at issue in AFPF v Bonta was a bridge too far even for her fellow travelers, but we’re already seeing in her campaign comments that she’s no fan of the First Amendment.”