by Mitch Kokai
Senior Political Analyst, John Locke Foundation
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.”