SCOTUS asks solicitor general to weigh in on Calif. law requiring nonprofits to disclose donors

On Feb. 24, the United States Supreme Court called on United States Solicitor General Noel John Francisco to file a brief expressing the federal government’s views on two suits challenging a California law requiring nonprofits to disclose identifying information about their donors. The lawsuit names and docket numbers are Americans for Prosperity Foundation v. Becerra (19-251) and Thomas More Law Center v. Becerra (19-255).

What does it mean when the Supreme Court calls on the Solicitor General to submit a brief, and what comes next? These orders are generally referred to as “Calls for the View of the Solicitor General” (CVSGs). Four of the Supreme Court’s nine justices must concur in order to issue a CVSG. Before becoming a federal appellate court judge in 2013, Patricia Millett wrote, “CVSGs are a unique feature of Supreme Court practice, and they underscore the special position of the Solicitor General in Supreme Court litigation. The Court is seeking the views of a non-party, not on the merits of the case, but on whether the Court should exercise its discretionary certiorari jurisdiction to hear the case at all.”

In its Feb. 24 order, the Supreme Court did not set a deadline for the brief. According to Millett, “The Solicitor General’s Office strives to file pending CVSGs in time to meet the Court’s traditional cut-off dates for action each Term.”

More about the Solicitor General: The office of the United States Solicitor General is an agency of the U.S. Department of Justice that argues on behalf of the federal government before the Supreme Court and in all federal appellate courts. The federal government is involved either as a party or as an amicus curiae in approximately two-thirds of all cases before the Supreme Court.

What is at issue? California law requires nonprofits to file copies of their IRS 990 forms with the state. Schedule B of this form includes the names and addresses of all individuals who donated more than $5,000 to the nonprofit in a given tax year. The California law requires that nonprofits give the state copies of their Schedule B forms. Although the law does not allow public access of Schedule B information, court documents indicate inadvertent disclosures have occurred.

Americans for Prosperity Foundation v. Becerra (19-251) and Thomas More Law Center v. Becerra (19-255): In 2014, Americans for Prosperity Foundation (AFPF), a 501(c)(3) nonprofit, filed suit in U.S. district court, alleging violations of their First Amendment associational rights. In 2016, Judge Manuel Real, of the United States District Court for the Central District of California, found in favor of AFPF and enjoined the state from collecting Schedule B information from the group. Real was appointed to the court by Pres. Lyndon Johnson (D).

In 2015, Thomas More Law Center (TMLC), also a 501(c)(3) nonprofit, filed a similar suit in the same U.S. district court. In a separate 2016 ruling, Real also found in favor of TMLC and enjoined the state from collecting Schedule B information from the group.

The two suits were combined on appeal. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously overturned Real’s rulings in 2018. Judges Raymond Fisher, Richard Paez, and Jacqueline Nguyen issued the ruling. Fisher and Paez were appointed to the court by President Bill Clinton (D). Nguyen was appointed by President Barack Obama (D). The plaintiffs petitioned the Ninth Circuit for en banc review. That petition was rejected March 29, with five judges dissenting. On Aug. 26, 2019, the plaintiffs appealed this decision to the Supreme Court.

What we’re reading

The big picture

Number of relevant bills by state: We’re currently tracking 44 pieces of legislation dealing with donor disclosure. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

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Number of relevant bills by current legislative status

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Number of relevant bills by partisan status of sponsor(s)

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Recent legislative actions

Below is a complete list of legislative actions taken on relevant bills since our last issue. Bills are listed in alphabetical order, first by state then by bill number.

  • Connecticut HB05406: This bill would establish disclosure requirements for independent expenditures supporting or opposing incumbents before they form committees.
    • Introduced and referred to Joint Government Administration and Elections Committee Feb. 28.
    • Committee sponsorship.
  • Connecticut HB05410: This bill would, among other things, increase disclosure of independent expenditures and prohibit such expenditures by foreign-influenced entities.
    • Introduced and referred to Joint Government Administration and Elections Committee Feb. 28.
    • Committee sponsorship.
  • Kentucky HB522: This bill would establish reporting and disclosure requirements for internet announcements that expressly advocate for the election or defeat of a candidate or group of candidates.
    • Introduced Feb. 27.
    • Democratic sponsorship.
  • Tennessee HB2665: This bill would prohibit public agencies from requiring 501(c) entities to furnish them with personal information about donors.
    • Subcommittee on Constitutional Protections and Sentencing action deferred from Feb. 25 to March 3.
    • Republican sponsorship.
  • Virginia HB849: This bill would subject political campaign communications made via online platforms to the same disclosure requirements currently applied to print media, television, and radio advertisements.
    • House approved Senate substitute Feb. 25.
    • Democratic sponsorship.
  • Virginia SB979: This bill extends the applicability of the state’s campaign finance disclosure act to candidates for directors or soil and water conservation districts.
    • House Privileges and Elections Committee advanced Feb. 28.
    • Republican sponsorship.