Legal Docket - Demanding donor details

MARY REICHARD, HOST: It’s Monday morning, May 3rd, 2021 and we’re glad to be back for another week of The World and Everything in It. Good morning to you! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

The U.S. Supreme Court handed down just one opinion last week. The majority ruled a deportation notice from the government must arrive as a single document. One that contains all the necessary information for the person being deported.

In this case, a man from Guatemala came into the United States illegally in 2005. He received deportation notifications across two separate mailings. He fought the government on the grounds that the law specifies “a” notice.

His lawyer argued that “a” means “just one.”

And a majority of six justices agreed with him. In dissent, Justice Brett Kavanaugh and joined by Chief Justice John Roberts and Samuel Alito thought the majority wrongly tread into policy matters and creates more burdens for the already-burdened immigration system.

REICHARD: Now for oral arguments.

First, a case that arises out of California from the time when our current vice president Kamala Harris was that state’s attorney general, from 2011 to 2016.

California is one of only four states that requires charities and nonprofits soliciting money there to hand over a list of donors.

IRS Form 990 gives an overview of an organization. Attached to that form is Schedule B. That contains very specific information: names of donors, their addresses, and total contributions.

Until Kamala Harris took office, California didn’t require charities to file Schedule B with the state. But Harris explained she needed donor details to streamline fraud investigations. Charities that didn’t comply received deficiency letters from her.

EICHER: In 2014, the nonprofit group Americans for Prosperity sued Harris, alleging the requirement of disclosure of major donors amounted to a violation of their freedoms of speech and association under the U.S. Constitution.

It’s been in the courts ever since, and now it’s before the highest court. Which has consolidated this case with a similar challenge from Thomas More Law Center, a conservative public-interest law firm.

Lawyer for the nonprofits, Derek Shaffer, laid out the costs and the fallacies of Harris’s demand.

SHAFFER: This demand casts a profound nationwide chill, and it does so for no good reason, Your Honors. California's upfront collection of Schedule Bs does not further the state's law enforcement goals. Forty-six states today police charities without any such blanket demand. California itself likewise did so for years, Your Honors, without any problems. These 
Schedule Bs never find any legitimate use unless and until a complaint comes in, as happens for only a fraction of 1 percent of all charities. Even when reviewed, Schedule Bs, for all of their extreme sensitivity, have only trifling utility.

On the other side representing California, Aimee Feinberg.

She argued the nonprofits failed to make the case that Schedule B disclosure requirements are unconstitutional. The state needs them to root out fraud, and the state strives to keep the documents confidential.

That unleashed a barrage of questions from the justices on both sides of the ideological aisle.

Justice Alito recalled massive data breaches originating in the state of California.

ALITO: A donor may say: This is a state that has been grossly negligent in the past. No sanctions against anybody who's leaked this information. I have to assume that this may happen again. Why isn't that a reasonable way to look at this?

Well, Feinberg replied, the lower court noted efforts to rectify past lapses and commended efforts to prevent them in the future. 
Justice Alito didn’t let up.

ALITO: It said your past record was shocking, did it not?

Part of the state’s argument is that we must look at disclosure requirements in two ways: one, is it wrong overall, wrong on its face, or, as lawyers put it, “facially.” Or, two, is it wrong just in certain situations, or again to use the legal term of art, “as applied”?

Justice Clarence Thomas spotted the trouble with that analysis. Listen to this exchange with Shaffer, lawyer for the nonprofits:

THOMAS: How would it affect your analysis if the organization involved did something that was not controversial, such as provide free dog beds, or taking care of stray puppies or something like that? Would your analysis change in any way?

SHAFFER: It wouldn't, Justice Thomas.

REICHARD: Because no matter whether “facially” or “as applied,” even the handling of puppies can be controversial.

Justice Amy Coney Barrett wondered whether what riles up people in California may strike people in Alabama as a nothingburger, for example. Hard to find one standard for what constitutes harassment in that environment.

Shaffer kept to his focus: any requirement to disclose is unconstitutional, regardless of the purpose of a charity.

Because, as Justice Thomas expounded:

THOMAS: In this era, there seems to be quite a bit of loose accusations about organizations, for example. An organization that has certain views might be accused of being a white supremacist organization, or racist, or homophobic. Something like that and as a result become quite controversial. Do you think that sort of labeling would change your analysis?

SHAFFER: It’s part of the problem. Precisely because there is such intensity of views and such a proclivity to vilify perceived enemies in your time, it raises the stakes if you will.

Feinberg for the state tried her best to minimize the amount of damage done by intolerant people who doxx others, whether on purpose or not. Sure, sometimes a data breach may happen, disclosures occur, she argued, but nobody can guarantee perfection.

Feinberg got some support from Justice Elena Kagan who questioned the premise of the other side. Some donors may be worried about public disclosure out of harassment fears, she told Shaffer, but not everyone is.

KAGAN: a very substantial majority of donors in a very substantial majority of charities are not concerned about that. In fact, they rather like public disclosure of their generosity. If that's so, could you win a facial challenge?

SHAFFER: Yes, Justice Kagan, for two reasons.

He would go on to explain that his side has shown plenty of people who are afraid of retaliation. He asked, Why should he have to bring a particular number to prevail?

Just strike the whole disclosure mandate down, all the way, he argued. Anything less would be a Pyrrhic victory, requiring nonprofits to continually fight expensive court battles to vindicate their First Amendment rights.

Justice Stephen Breyer pointed out the elephant in the room. Any ruling here, he said, necessarily involves campaign finance disclosures, does it not?

BREYER: If you win in this case, I think the Court will have in some form held that the interest of the donors in maintaining privacy of their giving to a charity. Here at least outweighs the interest of the State in having a law on the books that even if it’s not actually enforced frightens people into behaving properly. Okay? Something like that.

Justice Breyer wondering whether this case is really a stalking horse to undermine campaign-finance rules. And how to distinguish political from non-political speech.

Shaffer pointed out the higher principle of the right to privacy. He pounded on the difference between IRS requirements that are applicable nationwide versus California’s bureaucratic whims.

And he underscored what the Founders of this nation thought about freedom in this exchange with Justice Barrett:

BARRETT: Do you think the right to anonymously associate is an inherent part of the freedom of assembly?

SHAFFER: Yes, it is. It was precious to the framers. Anonymity was a core concern of theirs that’s reflected in this court’s precedents. But also, the right to assemble is the right to assemble privately and peaceably. And when the government comes asking us who your donors are, that is a direct infringement.

The tenor of this argument points to a win for the nonprofits, and maybe a smack-down for overreaching government.

But the crucial aspect is how the justices reach that conclusion. That makes all the difference in how lawyers can use it in other cases in the future, and how citizens can guard their rights.

This last case today is one of several this term dealing with Native American tribes.

This one’s not about broken treaties or land rights, though. It’s about whether native-run corporations are entitled to money from the CARES Act.

First, let’s define some terms: The CARES Act. It’s an acronym you may remember is the Coronavirus Aid, Relief, and Economic Security Act, passed during the Trump administration in response to the economic fallout from the pandemic and pandemic policies.

Another term: ANCs. That initialism stands for Alaska Native Corporations. ANCs engage in for-profit businesses like oil and gas productions and farming. The federal government established them in 1971 when it settled land claims with indigenous Alaskans.

ANCs are different from tribal gaming or casinos, though. Coronavirus shutdowns hit hospitality and entertainment hard, and that included casinos mainly in the Lower 48 states.

All that to say, we can frame the fight here as Native tribes in the Lower 48 who object to their share of CARES Act relief cut down by the northerners who don’t really need it. They say the ANCs up in Alaska aren’t in financial trouble, and the law didn’t intend to include them.

So it’s a matter of interpreting what the CARES Act means by the phrase: “recognized governing bodies of Indian Tribes.”

Not easy, because the phrase “Indian Tribe” is all over federal law, and isn’t clearly defined.

Justice Amy Coney Barrett wanted to clarify what the case is really about in this exchange with lawyer for the tribes of the Lower 48.

BARRETT: Isn't this really about whether
 the lower 48 are allocated more money? In other 
words, that the primary dispute here isn't about 
 governance or who serves as the intermediary or
 the ANCs being able to trump how the villages 
might decide things, but what piece of the pie 
goes where?


RASMUSSEN: No, our view is that this is a fundamental question about tribal sovereignty and that the tribes are the sovereigns. Congress was giving the money to the sovereigns for them to make the decision that would...

How the justices decide will determine who decides and where authorities can distribute that money set aside for Native American communities.

And that’s this week’s Legal Docket.

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