CCP v. Harris

CCP v. Harris

In order to legally solicit tax-deductible contributions in California, entities must first register with the state’s Registry of Charitable Trusts (“Registry”), which is administered by California’s Department of Justice.

To support its activities, the Center for Competitive Politics (CCP) solicits charitable contributions nationwide, including in California. Consequently, CCP registers with the State, and submits its publicly available IRS Form 990 to the Attorney General. This year, for the first time since CCP began soliciting contributions in California in 2008, the Attorney General requested an unredacted copy of CCP’s Schedule B.

Schedule B is an addendum to Form 990, which lists the names and addresses of CCP’s contributors. While a redacted version of this form is publicly available, per the disclosure and privacy provisions of the IRC, the Schedule B contributor information of § 501(c)(3) organizations is exempt not only from public disclosure, 26 U.S.C. § 6104(d)(3), but also from disclosure to state officials. The IRC creates a specific means for state officials to seek confidential tax return information by direct request to the Secretary of the Treasury. 26 U.S.C. § 6104(c)(3). But § 501(c)(3) organizations are explicitly exempted from this provision.1

Therefore, California Attorney General’s request for CCP’s Schedule B violates the clear terms of the IRC, and ignores the Supremacy Clause of the United States Constitution, which forbids state actions that conflict with federal law.  Worse still, the Attorney General cites no authority whatsoever to substantiate her demand for the Schedule B.

 

The Attorney General’s demand creates a stark choice for CCP. Either of its potential courses of action would result in constitutional harm actionable under 42 U.S.C. § 1983. CCP may refuse to comply with the Attorney General’s Letter and risk losing its ability to solicit charitable contributions in California, despite Ninth Circuit and U.S. Supreme Court precedent holding that fundraising for charitable organizations is fully protected speech.

On the other hand, if CCP does give the Attorney General its confidential Schedule B as a precondition of engaging in protected fundraising speech, its First Amendment right to associate with its contributors, many of whom would rather not be disclosed, and their right to freely associate with each other, will be chilled.

As the United States Supreme Court first recognized in the civil rights cases of the 1950s, the anonymity of contributors to nonprofit educational organizations is generally protected, lest an individual be subject to retaliation for supporting an organization that educates the public on an unpopular topic. The State may only demand disclosure of an organization’s funders if necessary to advance a sufficiently important governmental interest. Defendant has not even attempted to make such a showing.

Should CCP act in the interest of its contributors and forgo fundraising efforts in the State to protect its donors’ names and addresses, it and its donors will be irreparably harmed. This will include not only lost contributions (and a corresponding loss of funding to advance CCP’s mission) during the pendency of this litigation (which CCP will not be able to recover as damages from the state at a later time), but also the silencing of CCP’s speech directed at potential donors in California.

As a result, CCP filed suit in the United States District Court Eastern District of California, asking for a preliminary injunction preventing the Attorney General from obtaining CCP’s confidential donor list. You can find a litigation backgrounder at this link.  You can find an updated backgrounder on the implications of the 9th Circuit decision at this link.

Case Documents

District Court for the Eastern District of California

United States Supreme Court

Ninth Circuit Court of Appeals

Commentary