Guess Who Just Admitted Harris and Becerra Violated the First Amendment
By DAN MCLAUGHLIN
National Review
Xavier Becerra (L) answers questions during his Senate Finance Committee nomination hearing on Capitol Hill in Washington, D.C., February 24, 2021; Vice President Kamala Harris in a virtual town hall at the White House in Washington, D.C., February 18, 2021. (Greg Nash, Jonathan Ernst/Reuters)
Surprising briefs emerge in a First Amendment case before the Supreme Court.
The Supreme Court in January agreed to hear Americans for Prosperity Foundation v. Becerra, which alleges that California violated the First Amendment by demanding that conservative nonprofits in the state — indeed, all nonprofits — disclose their donors to the state attorney general. That policy started under Jerry Brown and was enforced by his successors, Vice President Kamala Harris and Secretary of Health and Human Services nominee Xavier Becerra. Becerra continues to defend the policy in court, even though it runs directly afoul of a 1958 decision, NAACP v. Alabama ex rel. Patterson, which established that the First Amendment right to association requires protecting the privacy of a group’s members and supporters.
Under Harris and Becerra, the California attorney general’s office was callous with the security of this sensitive information. The trial disclosed extensive evidence that the California AG’s office “systematically failed to maintain the confidentiality” of donor lists (filed on a form called Schedule B)
- 1,778 Schedule Bs had been posted online; in some cases, the AG had known for years of the public disclosures and did not notify the nonprofits. Not all of these were conservative organizations, either; one victim was Planned Parenthood.
- Evidence showed that the registry of some 350,000 Schedule Bs was “an open door for hackers.”
- The AG’s office interpreted its rules to allow disclosures to public-record and academic-research requests.
- There was no supervision of third-party vendors who regularly accessed the registry.
As the solicitor general’s brief on behalf of the Trump administration — recommending the Court take the case — wrote:
. . . the district court found that petitioners had presented “ample evidence” that their known contributors had in the past suffered harassment, reprisals, and similar harms, and that contributors listed on the Schedule B would therefore face a reasonable probability of such harms in the future were their identities made public.
The civil-rights context of the NAACP’s fight with Alabama in 1958 highlighted the urgency that this issue can have. Today’s cancel-culture wars against people who give money to conservative causes have produced dramatic examples as well, particularly in California. Merely donating to the anti-same-sex marriage Proposition 8 was enough to result in harassment and, in the case of Mozilla CEO Brendan Eich, losing his job — even though Proposition 8 passed with the support of a majority of Californians.
For some California nonprofits, the stakes are higher still. An amicus brief in the case filed by Citizen Power Initiatives for China, a pro-Chinese-democracy group founded by a survivor of the 1989 Tiananmen Square massacre, wrote that California’s promises of confidentiality are “little comfort to groups like Citizen Power Initiatives whose donor lists are a target for sophisticated hacks by foreign powers and their agents”:
Nearly all of Citizen Power Initiatives’ donors and potential donors have significant ties to China — family, business, citizenship — and are vulnerable to all manner of coercion. In 2019, China imprisoned one consistent major donor who is based in the country and had yearly travels to the United States. Another major donor discontinued his support after learning that the Chinese government had discovered his donations. In addition, leaders of the organization have spoken with many who are sympathetic to their cause but who cannot lend support for fear of losing their business or subjecting themselves and their families to persecution. . . . People’s lives and livelihoods are at stake.
China Aid Association, a human-rights group founded by another survivor of Tiananmen Square that stands up for (among others) persecuted Chinese Christians, noted in its brief the aggressive history of the Chinese Communist regime in penetrating databases that might help it retaliate against enemies of its regime:
Last summer, China hacked into the Vatican. Before that, it cracked the iPhone — and the Android system. And before that, it stole myriad files from the Office of Personnel Management, including 5.6 million sets of fingerprints. . . . California’s plan to continue to trust students and temporary workers to upload donor lists only onto the private Internet, thanks to new “weekly” checks . . . will still leave the lists exposed for up to six days — plenty of time for China’s hackers. . . . One of China’s key means of attacking critics abroad is by hacking into their accounts and organizational systems. Hundreds of entities have been penetrated—from technology firms, to universities, to nonprofits, to religious institutions. . . . California uploads the entire contents of its donor registry — some 60,000 donor lists — to the Internet every year.
Dozens of other conservative and libertarian individuals and organizations have filed briefs supporting the challenge to California’s policy, ranging from 22 states and Mitch McConnell to the Cato Institute, the Chamber of Commerce, and the Becket Fund for Religious Liberty.
Becerra leads the defense of the case. His brief, filed in December, scoffed at “any claim that California’s requirement could lead to public harassment or other negative consequences,” reflecting his and Harris’s cavalier attitude toward the concerns of everyone from pro-marriage American conservatives to Chinese dissidents.
But you know who else isn’t buying the arguments of Harris and Becerra? For one, the Biden-Harris administration, whose brief filed this week argued that the Court should throw out the Ninth Circuit’s pro-California ruling and send the case back — not because compelled donor disclosures are generally bad, but because the California attorney general’s office under Harris and Becerra was so reckless and incompetent in protecting donor information:
On these unique facts, where [Harris’s and Becerra’s] history of not maintaining Schedule B [donor] information as securely as it should have raises a serious concern, . . . the overall deterrent effect on the exercise of First Amendment rights should be assessed as a function of both . . . the probability of public disclosure and the severity of the harms such disclosure could produce. (Quotations omitted; emphasis in original).
The Biden-Harris administration’s brief also noted the unusually coercive nature of the Harris-Becerra approach to compelled disclosure, which unlike disclosure to the IRS, is not just a condition of receiving a tax exemption:
Charitable organizations that fail to comply are not merely denied a subsidy but also barred from operating and fundraising in the State. . . . [Becerra] has not sought to defend California’s Schedule B disclosure requirement as a condition on governmental subsidies. When petitioners did not comply with the requirement, [Harris] informed them not only that they might lose their state tax exemptions but also that they could be barred from operating or soliciting contributions in California.
The administration that employs Harris — and is seeking to employ Becerra — is not the only voice on the left that thinks they went too far. The American Civil Liberties Union, in a brief joined by the NAACP Legal Defense and Educational Fund and the Human Rights Campaign, told the Court:
The disclosure law at issue here, at least as it has been implemented by California, risks undermining the freedom to associate for expressive purposes. That freedom . . . is fundamental to our democracy. . . . In light of California’s record of inadvertently publicizing these sensitive documents, its demand should be treated as a de facto public disclosure requirement . . .
The ACLU brief laid the blame squarely at the feet of the office run by Harris and Becerra for failing to keep donor information private:
The record in this case discloses a disturbing pattern of failures to keep the forms confidential. California’s assurances that previous mistakes will not be repeated is unlikely to persuade donors that their information, once handed over to the State, will remain confidential . . . . California cannot force nonprofit organizations and their supporters to bear the risk of the State’s demonstrated inability to maintain the confidentiality of sensitive associational information. . . . The breaches of confidentiality here were massive. . . . [The lawsuit] identified 1,778 confidential Schedule Bs that the Attorney General had inadvertently posted on [a public] website . . . [including] the Schedule B form for Planned Parenthood Affiliates of California, which contained the names and address of hundreds of donors.
The Council on American-Islamic Relations likewise weighed in, warning of the ominous implications of Becerra’s arguments: “Government efficiency is not an excuse for mass violations of First Amendment rights.” A particularly scathing brief was filed by People for the Ethical Treatment of Animals and an alliance of 122 other nonprofits, many of them left-wing organizations but also spanning the political and social spectrum, including the Southern Poverty Law Center, Doctors Without Borders, NARAL Pro-Choice North Carolina, Wisconsin Right to Life, the National Children’s Cancer Society, the Zionist Organization of America, and an order of Franciscan nuns. The PETA brief directly blasted the “abysmal” mismanagement of donor information by Harris and Becerra:
Given the California Attorney General’s established track record of numerous and regular inadvertent disclosures of the confidential donor information it collected en masse, the risk of loss of privacy is high. In light of these systematic failures to safeguard private donor information, the district court found the Attorney General’s “inability to assure confidentiality increases the ‘reasonable probability’ that compelled disclosure of donors would chill Plaintiff’s First Amendment rights. Donors and potential donors would be reasonably justified in a fear of disclosure given such a context.” . . . Given California’s abysmal track record, if other states follow its lead, it is unreasonable to expect donor information to remain confidential.
Among other things, the PETA brief slammed Harris and Becerra for hypocrisy for demanding that nonprofits practice data security and notify donors of breaches, while their own office “failed to notify any of the 1,800 charities whose confidential donor information was leaked by that office when it inadvertently published Schedule Bs on its website.” And the brief goes on to suggest that the collection of donor information is so unnecessary that it raises suspicions about the motives of Harris and Becerra in collecting it:
The compelled disclosure of confidential donor information from all 115,000 charities registering to engage in protected speech in California, including major donors outside the State of California, has no substantial relationship to preventing fraud in California. It does nothing to prevent fraud…Equally problematic, the requirement operates on the assumption that every registering charity is guilty of fraud until proven innocent. . . . The record is clear: the Attorney General has no genuine need for Schedule Bs. . . . Because the Attorney General has such little actual use for Schedule Bs, a reasonable person might ask, “If they do not need the information to enforce solicitation laws, then why do they want it?”
It remains to be seen how the Supreme Court will come out. It could conclude that Harris and Becerra crossed a bright line by demanding donor information that the government has no right to compel. Or, it could conclude that the government can ask for this information in other situations, but that Harris and Becerra were particularly careless and inept in protecting it. But to listen to the Biden-Harris administration’s own lawyers and ideological allies, there is little doubt that Harris and Becerra rode roughshod over the important First Amendment rights of vulnerable citizens in their haste to put the squeeze on political freedom in California. The Senate should consider, in light of this, whether Becerra can be trusted to run the largest federal department that oversees the medical privacy of all Americans.