Three briefs filed in January in defense of Donor Privacy
February 14, 2017
Independence Institute v. FEC (read brief here)
Citizens United v. Schneiderman (read brief here)
Americans for Prosperity Foundation v. Becerra (read brief here)
Starting out the new year, our firm filed three amicus briefs supporting the First Amendment rights of nonprofit organizations and their
donors. These briefs focused on donor privacy, the right to anonymous speech inherent in the First Amendment, and government overreach. We emphasized
the remarkable fact that politicians often have corrupt objectives when they write laws squelching the voice of the people.
Independence Institute v. Federal Election Commission
On January 9, 2017, we filed an amicus brief urging the U.S. Supreme Court to review an appeal filed by the Independence Institute challenging
the disclosure requirements imposed by the Bipartisan Campaign Reform Act ("BCRA") as applied to genuine issue ads paid for by 501(c)(3) organizations.
BCRA compels the disclosure of donors who support such ads with over $1,000, with substantial civil and criminal penalties for failure to report this
information publicly. (This actually was the third brief we filed in this case)
Our amicus brief argued that the three-judge district court below wrongly applied a line of federal campaign finance cases authorizing disclosure of
those behind campaign ads to this case, not genuine issue ads. We explained that Congress devised the term "electioneering communications" to give
the appearance that these issue ads are campaign ads, even though they deal with legislation, mentioning the name of an incumbent Congressman only in
the discharge of his legislative duties, not in support of his campaign for office.
We argue that the Supreme Court should apply the McIntyre v. Ohio (1995), Miami Herald v. Tornillo (1974), and Talley v.
California (1960) line of authorities, which protects the anonymity of those sponsoring informational communications not designed to urge the
election or defeat of a candidate.
Lastly, we explained that the Congressional motive in imposing such regulations is suspect, designed to discourage public criticism of incumbents,
and enhance the reelection prospects of the incumbents who passed the law.
Citizens United v. New York Attorney General Schneiderman, and
Americans for Prosperity Foundation v. California Attorney General Becerra
We filed amicus briefs in two different challenges to actions by New York and California politicians who want to know the identity of the
largest donors to causes with which they disagree. Contrary to long-standing practice to respect donor privacy, the California and New York Attorneys
General have begun to demand nonprofit organizations provide a complete, unredacted IRS Form 990 Schedule B in order to be able to register
under state charitable solicitation laws to fundraise in those states. The Schedule B contains a complete list of the names and addresses of the
organization's large donors, along with amounts donated.
In New York, Citizens United (represented by New York lawyer and incoming White House Counsel Don McGahn), challenged the requirement, but
was denied an injunction against the AG, and has now appealed to the Second Circuit. We filed an amicus brief in that case on January 13, 2017
on behalf of 21 nonprofit organizations and firms engaged in the business of assisting their fundraising.
In California, Americans for Prosperity Foundation was granted an injunction against the AG, who has appealed to the Ninth Circuit. We filed
an amicus brief in that case on January 27, 2017 on behalf of 32 nonprofit organizations and for-profit companies. This was our second
amicus brief in support of AFPF.
These two amicus briefs focused on the following issues:
1. State charitable solicitation laws are (purportedly) designed to protect the public from fraudulent charities. The Supreme Court has ruled
repeatedly in a line of cases known as the "Village of Schaumburg trilogy" that unless the purpose of the law, and means chosen by the
government, are narrowly directed at specific fraud, broad prophylactic restrictions on fundraising are impermissible. As confirmed by the Supreme Court in
Madigan v. Telemarketing Associates, the information routinely required by the AG's office should be for the specific purpose of aiding in
the investigation and prosecution of fraud - a test met by neither California nor New York.
2. Case precedents involving campaign finance laws are not applicable to charitable solicitation cases. The only reason that disclosure of donors is
permissible in the electoral context is to prevent "corruption and the appearance of corruption," making cases determining such law's validity wholly
inapplicable to requirements imposed on nonprofits by charitable solicitation laws.
3. The Supreme Court's 1960 Talley v. California Freedom of the Press rule protecting anonymity governs these cases. Talley rooted
the anonymity principle in the press freedom's ban on state licensure, including the right of the people to editorial control of what is
communicated in the marketplace of ideas without control by the State.
4. Finally, we argued that each state Attorney General may be committing the federal felony of extracting from taxpayers confidential and protected
IRS tax information which should only be made accesible to state officials in accordance to a procedure set out in federal law.
These briefs were filed for different coalitions of the following organizations: Free Speech Coalition; Free Speech Defense and Education Fund;
Americans for Constitutional Liberty; America's Foundation for Law and Liberty; America's Liberty Committee; CatholicVote.org; Citizen Outreach, LLC;
Citizen Outreach Foundation; Citizens United; Citizens United Foundation; ClearWord Communications Group; Coalition for a Strong America; Conservative
Legal Defense and Education Fund; Davidson & Co.; DownsizeDC.org; Downsize DC Foundation; Eberle Communications Group, Inc.; Family Research Council;
Gun Owners of America, Inc.; Gun Owners Foundation; The Jesse Helms Center; JFT Consulting, Inc.; Law Enforcement Alliance of America; The Leadership
Institute; Liberty Guard; National Right to Work Committee; Public Advocate of the United States; 60 Plus; 60 Plus Association; U.S. Constitutional
Rights Legal Defense Fund; U.S. Justice Foundation; and Western Center for Journalism.
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