Americans for Prosperity v. Rodriquez

No. 19-251 - Argued April 26, 2021
At Issue

Does the policy of the California attorney general’s office requiring charities to disclose the names and addresses of their major donors violate the First Amendment of the U.S. Constitution?

Advocates
  • Derek L. Shaffer, for the Petitioners
  • Elizabeth B. Prelogar, for the United States, as amicus curiae, supporting vacatur and remand
  • Aimee A. Feinberg, for the Respondent
Background and Case Commentary

The California Attorney General’s office has a policy requiring charities to provide the state, on a confidential basis, information about their major donors, purportedly to help the state protect consumers from fraud and the misuse of their charitable contributions. Petitioner Americans for Prosperity (and the petitioner in the consolidated case, Thomas More Law Center) did not file complete lists of their major donors with the California Attorney General’s office, despite filing complete lists with the federal Internal Revenue Service, as required by federal law.

In response to demands by the California Attorney General that they file the complete lists, the organizations filed a lawsuit alleging that the filing requirement unconstitutionally burdened their First Amendment right to free association by deterring individuals from financially supporting them. The organizations provided evidence that although the state is required to keep donor names private, the state’s database was vulnerable to hacking, and many donor names were repeatedly released to the public. But a panel of the U.S. Court of Appeals for the Ninth Circuit rejected that argument, based on its conclusion that “exacting scrutiny” rather than “strict scrutiny” was the appropriate standard, and “exacting scrutiny” requires only “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.”

During the argument, Justice Sotomayor asked Mr. Shaffer, for the petitioners, a question suggesting that California’s policy should survive exacting scrutiny. Specifically, she asked how the petitioners can reconcile their view of exacting scrutiny/narrow tailoring with the Court’s opinion in Doe v. Reed, 561 U.S. 186 (2010).  My answer explains why Doe is not on point.

Americans for Prosperity v. Rodriquez on Oyez: https://www.oyez.org/cases/2020/19-251

Key Questions from Oral Argument

Justice Sotomayor to Petitioner (14:41): Counsel, if we were to apply the type of narrow tailoring you advocate, I don't see how the public disclosure at issue in Doe would have survived. In Doe, this Court held that Washington State's requirement that signatories to referendum be publicly disclosed was substantially related to its interest in protecting electoral integrity.

But, there, the State Secretary -- the State's Secretary of State -- pardon the redundancy -- checked signatures for fraud. That doesn't seem to be anything like narrow tailoring, if that's what we were applying.

It seems to me, as the Chief Justice pointed out, that McCutcheon is different than what we have been doing under exacting scrutiny. Under your theory of the case, though, Doe shouldn't survive.

Eugene Volokh: Justice Sotomayor, as you emphasized in your opinion in Doe, the result in that case flowed from, quote, the relative weight of the interests at stake and the traditionally public nature of initiative and referendum processes, end quote.

In our case the government interest is less weighty, and the traditionally public nature of the initiative and referendum is absent.

First, Doe involved the interest in preventing fraud on the electoral process—an unusually powerful interest that goes to the heart of our democracy. An interest in preventing fraud against donors is less powerful; it may authorize compelled disclosure in response to an audit, but not blanket up-front disclosure to the government.

And, second, here there is nothing traditionally public about contributions to charities—as opposed to signing petitions, which, as you noted in Doe, typically occurs in public.

Indeed, that is why Doe authorized a form of disclosure that even California isn’t arguing for in our case: disclosure of the names of signers to any member of the public who wanted them. Surely such disclosure would be unacceptably intrusive in our case, which shows that Doe is not analogous.

Contributors

Eugene Volokh