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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)<\/p><\/div>\n
Surprising briefs emerge in a First Amendment case before the Supreme Court.<\/span><\/h3>\nT<\/span>he<\/span>\u00a0Supreme Court in January\u00a0agreed to hear<\/a>\u00a0Americans for Prosperity Foundation v. Becerra<\/em>, which alleges that California violated the First Amendment by demanding that conservative nonprofits in the state \u2014 indeed, all nonprofits \u2014 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\u00a0runs directly afoul<\/a>\u00a0of a 1958 decision,\u00a0NAACP v. Alabama ex rel. Patterson<\/em>, which established that the First Amendment right to association requires protecting the privacy of a group\u2019s members and supporters.<\/p>\nUnder Harris and Becerra, the California attorney general\u2019s office was callous with the security of this sensitive information. The trial disclosed extensive evidence that the California AG\u2019s office \u201csystematically failed to maintain the confidentiality\u201d of donor lists (filed on a form called Schedule B)<\/p>\n
\n- 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.<\/li>\n
- Evidence showed that the registry of some 350,000 Schedule Bs was \u201can open door for hackers.\u201d<\/li>\n
- The AG\u2019s office interpreted its rules to allow disclosures to public-record and academic-research requests.<\/li>\n
- There was no supervision of third-party vendors who regularly accessed the registry.<\/li>\n<\/ul>\n
As the solicitor general\u2019s\u00a0brief<\/a>\u00a0on behalf of the Trump administration \u2014 recommending the Court take the case \u2014 wrote:<\/p>\n. . . the district court found that petitioners had presented \u201cample evidence\u201d 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.<\/p><\/blockquote>\n
The civil-rights context of the NAACP\u2019s fight with Alabama in 1958 highlighted the urgency that this issue can have. Today\u2019s 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\u00a0case<\/a>\u00a0of Mozilla CEO Brendan Eich, losing his job \u2014\u00a0even though Proposition 8 passed with the support of a majority of Californians<\/em>.<\/p>\nFor some California nonprofits, the stakes are higher still. An amicus\u00a0brief<\/a>\u00a0in 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\u2019s promises of confidentiality are \u201clittle comfort to groups like Citizen Power Initiatives whose donor lists are a target for sophisticated hacks by foreign powers and their agents\u201d:<\/p>\nNearly all of Citizen Power Initiatives\u2019 donors and potential donors have significant ties to China \u2014 family, business, citizenship \u2014 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\u2019s lives and livelihoods are at stake.<\/p><\/blockquote>\n
China Aid Association, a human-rights group founded by another survivor of Tiananmen Square that stands up for (among others) persecuted Chinese Christians,\u00a0noted in its brief<\/a>\u00a0the aggressive history of the Chinese Communist regime in penetrating databases that might help it retaliate against enemies of its regime:<\/p>\nLast summer, China hacked into the Vatican. Before that, it cracked the iPhone \u2014 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\u2019s plan to continue to trust students and temporary workers to upload donor lists only onto the\u00a0private<\/em>\u00a0Internet, thanks to new \u201cweekly\u201d checks . . . will still leave the lists exposed for up to six days \u2014 plenty of time for China\u2019s hackers. . . . One of China\u2019s key means of attacking critics abroad is by hacking into their accounts and organizational systems. Hundreds of entities have been penetrated\u2014from technology firms, to universities, to nonprofits, to religious institutions. . . . California uploads the entire contents of its donor registry \u2014 some 60,000 donor lists \u2014 to the Internet every year.<\/p><\/blockquote>\nDozens of other conservative and libertarian individuals and organizations have filed briefs supporting the challenge to California\u2019s policy, ranging from 22 states and Mitch McConnell to the Cato Institute, the Chamber of Commerce, and the Becket Fund for Religious Liberty.<\/p>\n
Becerra leads the defense of the case. His\u00a0brief<\/a>, filed in December, scoffed at \u201cany claim that California\u2019s requirement could lead to public harassment or other negative consequences,\u201d reflecting his and Harris\u2019s cavalier attitude toward the concerns of everyone from pro-marriage American conservatives to Chinese dissidents.<\/p>\nBut you know who else isn\u2019t buying the arguments of Harris and Becerra? For one, the Biden-Harris administration, whose\u00a0brief<\/a>\u00a0filed this week argued that the Court should throw out the Ninth Circuit\u2019s pro-California ruling and send the case back \u2014 not because compelled donor disclosures are generally bad, but because the California attorney general\u2019s office under Harris and Becerra was so reckless and incompetent in protecting donor information:<\/p>\nOn these unique facts, where [Harris\u2019s and Becerra\u2019s] 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\u00a0both . . .\u00a0<\/em>the probability of public disclosure and the severity of the harms such disclosure could produce. (Quotations omitted; emphasis in original).<\/p><\/blockquote>\nThe Biden-Harris administration\u2019s 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:<\/p>\n
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\u2019s 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.<\/p><\/blockquote>\n
The administration that employs Harris \u2014 and is seeking to employ Becerra \u2014 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,\u00a0told the Court<\/a>:<\/p>\nThe 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\u2019s record of inadvertently publicizing these sensitive documents, its demand should be treated as a\u00a0de facto<\/em>\u00a0public disclosure requirement . . .<\/p><\/blockquote>\nThe ACLU brief laid the blame squarely at the feet of the office run by Harris and Becerra for failing to keep donor information private:<\/p>\n
The record in this case discloses a disturbing pattern of failures to keep the forms confidential. California\u2019s 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\u2019s 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.<\/p><\/blockquote>\n
The Council on American-Islamic Relations likewise weighed in,\u00a0warning<\/a>\u00a0of the ominous implications of Becerra\u2019s arguments: \u201cGovernment efficiency is not an excuse for mass violations of First Amendment rights.\u201d A particularly scathing\u00a0brief<\/a>\u00a0was 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\u2019s Cancer Society, the Zionist Organization of America, and an order of Franciscan nuns. The PETA brief directly blasted the \u201cabysmal\u201d mismanagement of donor information by Harris and Becerra:<\/p>\nGiven the California Attorney General\u2019s 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\u2019s \u201cinability to assure confidentiality increases the \u2018reasonable probability\u2019 that compelled disclosure of donors would chill Plaintiff\u2019s First Amendment rights. Donors and potential donors would be reasonably justified in a fear of disclosure given such a context.\u201d . . . Given California\u2019s abysmal track record, if other states follow its lead, it is unreasonable to expect donor information to remain confidential.<\/p><\/blockquote>\n
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 \u201cfailed 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.\u201d 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:<\/p>\n
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\u2026Equally 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, \u201cIf they do not need the information to enforce solicitation laws, then why do they want it?\u201d<\/p><\/blockquote>\n
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\u2019s 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.<\/p>\n
Under Harris and Becerra, the California attorney general\u2019s office was callous with the security of this sensitive information. The trial disclosed extensive evidence that the California AG\u2019s office \u201csystematically failed to maintain the confidentiality\u201d of donor lists (filed on a form called Schedule B)<\/p>\n
- \n
- 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.<\/li>\n
- Evidence showed that the registry of some 350,000 Schedule Bs was \u201can open door for hackers.\u201d<\/li>\n
- The AG\u2019s office interpreted its rules to allow disclosures to public-record and academic-research requests.<\/li>\n
- There was no supervision of third-party vendors who regularly accessed the registry.<\/li>\n<\/ul>\n
As the solicitor general\u2019s\u00a0brief<\/a>\u00a0on behalf of the Trump administration \u2014 recommending the Court take the case \u2014 wrote:<\/p>\n
. . . the district court found that petitioners had presented \u201cample evidence\u201d 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.<\/p><\/blockquote>\n
The civil-rights context of the NAACP\u2019s fight with Alabama in 1958 highlighted the urgency that this issue can have. Today\u2019s 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\u00a0case<\/a>\u00a0of Mozilla CEO Brendan Eich, losing his job \u2014\u00a0even though Proposition 8 passed with the support of a majority of Californians<\/em>.<\/p>\n
For some California nonprofits, the stakes are higher still. An amicus\u00a0brief<\/a>\u00a0in 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\u2019s promises of confidentiality are \u201clittle comfort to groups like Citizen Power Initiatives whose donor lists are a target for sophisticated hacks by foreign powers and their agents\u201d:<\/p>\n
Nearly all of Citizen Power Initiatives\u2019 donors and potential donors have significant ties to China \u2014 family, business, citizenship \u2014 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\u2019s lives and livelihoods are at stake.<\/p><\/blockquote>\n
China Aid Association, a human-rights group founded by another survivor of Tiananmen Square that stands up for (among others) persecuted Chinese Christians,\u00a0noted in its brief<\/a>\u00a0the aggressive history of the Chinese Communist regime in penetrating databases that might help it retaliate against enemies of its regime:<\/p>\n
Last summer, China hacked into the Vatican. Before that, it cracked the iPhone \u2014 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\u2019s plan to continue to trust students and temporary workers to upload donor lists only onto the\u00a0private<\/em>\u00a0Internet, thanks to new \u201cweekly\u201d checks . . . will still leave the lists exposed for up to six days \u2014 plenty of time for China\u2019s hackers. . . . One of China\u2019s key means of attacking critics abroad is by hacking into their accounts and organizational systems. Hundreds of entities have been penetrated\u2014from technology firms, to universities, to nonprofits, to religious institutions. . . . California uploads the entire contents of its donor registry \u2014 some 60,000 donor lists \u2014 to the Internet every year.<\/p><\/blockquote>\n
Dozens of other conservative and libertarian individuals and organizations have filed briefs supporting the challenge to California\u2019s policy, ranging from 22 states and Mitch McConnell to the Cato Institute, the Chamber of Commerce, and the Becket Fund for Religious Liberty.<\/p>\n
Becerra leads the defense of the case. His\u00a0brief<\/a>, filed in December, scoffed at \u201cany claim that California\u2019s requirement could lead to public harassment or other negative consequences,\u201d reflecting his and Harris\u2019s cavalier attitude toward the concerns of everyone from pro-marriage American conservatives to Chinese dissidents.<\/p>\n
But you know who else isn\u2019t buying the arguments of Harris and Becerra? For one, the Biden-Harris administration, whose\u00a0brief<\/a>\u00a0filed this week argued that the Court should throw out the Ninth Circuit\u2019s pro-California ruling and send the case back \u2014 not because compelled donor disclosures are generally bad, but because the California attorney general\u2019s office under Harris and Becerra was so reckless and incompetent in protecting donor information:<\/p>\n
On these unique facts, where [Harris\u2019s and Becerra\u2019s] 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\u00a0both . . .\u00a0<\/em>the probability of public disclosure and the severity of the harms such disclosure could produce. (Quotations omitted; emphasis in original).<\/p><\/blockquote>\n
The Biden-Harris administration\u2019s 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:<\/p>\n
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\u2019s 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.<\/p><\/blockquote>\n
The administration that employs Harris \u2014 and is seeking to employ Becerra \u2014 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,\u00a0told the Court<\/a>:<\/p>\n
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\u2019s record of inadvertently publicizing these sensitive documents, its demand should be treated as a\u00a0de facto<\/em>\u00a0public disclosure requirement . . .<\/p><\/blockquote>\n
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:<\/p>\n
The record in this case discloses a disturbing pattern of failures to keep the forms confidential. California\u2019s 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\u2019s 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.<\/p><\/blockquote>\n
The Council on American-Islamic Relations likewise weighed in,\u00a0warning<\/a>\u00a0of the ominous implications of Becerra\u2019s arguments: \u201cGovernment efficiency is not an excuse for mass violations of First Amendment rights.\u201d A particularly scathing\u00a0brief<\/a>\u00a0was 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\u2019s Cancer Society, the Zionist Organization of America, and an order of Franciscan nuns. The PETA brief directly blasted the \u201cabysmal\u201d mismanagement of donor information by Harris and Becerra:<\/p>\n
Given the California Attorney General\u2019s 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\u2019s \u201cinability to assure confidentiality increases the \u2018reasonable probability\u2019 that compelled disclosure of donors would chill Plaintiff\u2019s First Amendment rights. Donors and potential donors would be reasonably justified in a fear of disclosure given such a context.\u201d . . . Given California\u2019s abysmal track record, if other states follow its lead, it is unreasonable to expect donor information to remain confidential.<\/p><\/blockquote>\n
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 \u201cfailed 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.\u201d 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:<\/p>\n
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\u2026Equally 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, \u201cIf they do not need the information to enforce solicitation laws, then why do they want it?\u201d<\/p><\/blockquote>\n
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\u2019s 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.<\/p>\n