This morning the Supreme Court heard argument in what I consider to be the most important case of the term, Americans for Prosperity Foundation v. Bonta (which used to be Rodriguez, and before that Becerra, as those serving as California’s attorney general keep shifting). The case involves a broad California law requiring nonprofit organizations to disclose extensive donor information to the state. For more background, see this blog post and Cato’s brief.)
The way argument went, it’s almost certain that the challengers to the law, Americans for Prosperity Foundation and Thomas More Law Center will win this case, but the devil will be in the details. Will a splintered Court issue a narrow ruling that essentially forces every charity soliciting donations in California (including Cato) to go to court to protect its donor lists, or will the justices uphold the broad associational freedom and privacy that the First Amendment protects? It’s not clear from argument, but I’m optimistic.
AFPF and Thomas More have shown on the record the justified concerns they have for the harms that could befall their donors if they were compelled to disclose them, but those very real harms aren’t the most important part of the case. Indeed, AFPF and Thomas More should win this case even if there were no demonstrated threats against donors. The case is important because the Constitution protects private, anonymous association, which can be overcome only if the government shows an interest that is both compelling and narrowly tailored.
Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas each expressed concern over California’s claim of a sweeping, prophylactic power to collect sensitive personal information, and even Justice Sotomayor queried the state’s lawyer about donors’ reasonable fear of hacking.
The desire to remain anonymous in your political activities is a venerable and time‐honored practice. That’s why AFPF drew unprecedented support from advocacy organizations across the ideological spectrum, as well as apolitical charities: ACLU, Alliance Defending Freedom, Americans United for Life, Animal Legal Defense Fund, Becket Fund, Cato, Council on American‐Islamic Relations, Human Rights Campaign, Institute for Justice, NAACP, NARAL of North Carolina, PETA, Young Americans for Freedom, Young Americans for Liberty, Southern Poverty Law Center, Zionist Organization of American, various religious orders and missionary groups, universities, and more.
Even without any threats, anonymity can be used to give arguments more attention than the identity of their author or funder. It’s still the government’s job to demonstrate when and why anonymous association should be squashed.