On Thursday, the United States Supreme Court struck down California's donor disclosure requirement for non-profits in Americans for Prosperity Foundation v. Bonta. As Ilya Shapiro observed, the Court's decision is a victory for Americans' freedom of association.
1. Re @AFPfoundation v @AGRobBonta: On cusp of Indep Day, #SCOTUS vindicated that most cherished American freedom: the freedom of association—including right not to have the govt bother you about your associations, or facilitate neighbors’ harassment of you for them. #CatoSCOTUS— Ilya Shapiro (@ishapiro) July 1, 2021
3/3. Just as the Court was right to uphold the NAACP’s associational privacy against Alabama in 1958, it was right to do so against California 60 years later.— Ilya Shapiro (@ishapiro) July 1, 2021
In short, a great day for freedom and the Constitution, and a fitting end to this unusual, all-virtual #SCOTUS term.
Chief Justice Roberts delivered the opinion for all parts except for Part II–B–1. Justices Kavanaugh and Barrett joined the Chief Justice in full. Justice Alito joined the opinion except Parts II–B–1 and III–B. Justice Thomas filed an opinion concurring in part and concurring in judgment. Justice Alito also filed an opinion concurring in part and in judgment that Justice Gorsuch joined. Justice Sotomayor authored a dissent which was joined by Justices Breyer and Kagan.
The opinion reads:
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. See id., at 307–308. California does not rely on Schedule Bs to initiate investigations, and in all events, there are multiple alternative mechanisms through which the Attorney General can obtain Schedule B information after initiating an investigation. The need for up-front collection is particularly dubious given that California—one of only three States to impose such a requirement, see id., at 420—did not rigorously enforce the disclosure obligation until 2010. Certainly, this is not a regime “whose scope is in proportion to the interest served.” McCutcheon, 572 U. S., at 218 (internal quotation marks omitted).
In reality, then, California’s interest is less in investigating fraud and more in ease of administration. This interest, however, cannot justify the disclosure requirement. The Attorney General may well prefer to have every charity’s information close at hand, just in case. But “the prime objective of the First Amendment is not efficiency.” McCullen, 573 U. S., at 495. Mere administrative convenience does not remotely “reflect the seriousness of the actual burden” that the demand for Schedule Bs imposes on donors’ association rights. Reed, 561 U. S., at 196 (internal quotation marks omitted). . .
We are left to conclude that the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights. 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, because it fails exacting scrutiny in “a substantial number of its applications . . . judged in relation to [its] plainly legitimate sweep.” Stevens, 559 U. S., at 473 (internal quotation marks omitted).
As Jim Geraghty points out, the California Attorney General who started "rigorously enforcing" the donor disclosure requirement was none other than, you guessed it, now-Vice President Kamala Harris.
What kind of state attorney general would spend the better part of a decade attempting to enforce such a transparently unconstitutional law, that subjected innocent people to threats over their donations to nonprofits?— Jim Geraghty (@jimgeraghty) July 1, 2021
Oh, that one.https://t.co/0RwKQvQPlj
The one notable area where Justices in the majority did not agree dealt with what standard of review to apply to the case. Ed Whelan explains:
The threshold question in the case is what standard of review applies to First Amendment challenges to compelled disclosure. The Chief determines (in Part II-B-1 of his opinion) that “exacting scrutiny,” rather than “strict scrutiny,” should apply. Although you might not be able to discern it from the labels, exacting scrutiny is more permissive than strict scrutiny. Under exacting scrutiny, there must be “a substantial relation between the disclosure requirement and a sufficiently important governmental interest,” whereas under strict scrutiny the government must adopt the least restrictive means of achieving a compelling state interest.
This is the one issue on which the Chief’s opinion did not garner a majority. Justice Thomas would apply strict scrutiny, and Justice Alito, joined by Justice Gorsuch, sees no need to decide in this case between the two standards (and also leaves open the possibility that some compelled disclosures might be subject to one of the standards and others to the other).
While the suit was brought by a conservative organization, the outcome from the Court is a victory for groups of all ideologies.
"Far from representing uniquely sensitive causes, these organizations span the ideological spectrum, and indeed the full range of human endeavors" pic.twitter.com/ociUX659NV— Lachlan Markay (@lachlan) July 1, 2021
Despite this reality, many on the Left prefer the approach taken by Justice Sotomayor in her dissent and are already pushing the dark money conspiracy theories that they love so much. An article for Vox argued:
As Justice Sonia Sotomayor writes in a dissenting opinion, “today’s analysis marks reporting and disclosure requirements with a bull’s-eye.” The upshot is that wealthy donors now have far more ability to shape American politics in secret — and that ability is only likely to grow as judges rely on the decision in Americans for Prosperity to strike down other donor disclosure laws.
To learn more about the Court's rulings in Americans for Prosperity Foundation v. Bonta and other noteworthy cases from the 2020-2021 term, tune in today at 2:00 p.m. ET for RNLA's annual SCOTUS Round-Up. Today's webinar will feature analysis from Professor Josh Blackman and the Heritage Foundation's John Malcolm.