As
previously reported, in June the U.S. 9th Circuit Court of Appeals upheld against a facial challenge California's administrative rule requiring non-profit organizations that wish to solicit tax deductible contributions in the state to file an annual report that includes an unredacted IRS Form 990 Schedule B, the names and contributions of significant donors. The filings are not made public by the state. Now in
Americans For Prosperity Foundation v. Harris, (9th Cir., Dec. 29, 2015), the 9th Circuit also rejected an "as-applied" challenge to the California law. This challenge was brought by Americans for Prosperity (a
libertarian advocacy group funded in large part by the Koch brothers) and by the Thomas More Law Center (which
describes itself as an advocacy group which "defends and promotes America’s Judeo-Christian heritage and moral values"). According to the court:
First, the plaintiffs have not shown the demand for nonpublic disclosure of their Schedule B forms to the Attorney General has actually chilled protected conduct or would be likely to do so.... Second, the plaintiffs have not shown a “reasonable probability” of harassment at the hands of the state if the Attorney General is permitted to collect their Schedule B forms for nonpublic use.
The 9th Circuit, however, upheld the district court's preliminary injunction barring the California Attorney General from making the Schedule B's public, saying in part:
Because the Attorney General agrees with the plaintiffs that Schedule B information should not be publicly disclosed, and because she is in the process of promulgating a regulation prohibiting such public disclosure, a preliminary injunction prohibiting public disclosure of donor information promotes, rather than undermines, the state’s policy.
