Conservative Free Speech Survives Attack by AG Harris

April 27, 2016 By Alex Tomescu

Photo courtesy of Steve Rhodes, flickr

California Attorney General Kamala Harris, in an attempt to burnish her credentials as the liberal successor to Senator Barbara Boxer, has continued the Left’s long tradition of harassment of private citizens when their political views are not aligned with the progressive agenda. Since 2013, Ms. Harris has demanded that national nonprofits turn over their IRS Form 990 Schedule B lists, which gives the names and addresses of donors who contribute $5,000 or more per year. This assault on free speech and democracy was thwarted last Thursday, when a federal judge issued a permanent injunction against Ms. Harris’ order that the Americans for Prosperity Foundation, a well-known nonprofit dedicated to free market principles, turn over its list of major donors or stop soliciting contributions in California.
 
Under current law, nonprofits like the AFP Foundation, are required to file the Form 990 Schedule B identifying major donors with the IRS. The IRS, in turn, is supposed to keep that form confidential. Anyone familiar with the machinations of President Obama’s politicized IRS and the actions of Lois Lerner are well aware of how seriously the IRS considers the confidentiality of private citizens. These nonprofits are also required to register with the state of California, but never before have they been required to submit the IRS forms in California. The AFP Foundation, along with numerous other nonprofit groups, challenged Ms. Harris’ demands in court, and won a significant victory for the First Amendment principles of free speech and free association.

U.S. District Court Judge Manuel L. Real, in his 12-page ruling, stated that “setting aside the Attorney General failure to establish a substantial relationship between her demand for AFP’s Schedule B and a compelling government interest, AFP would independently prevail… because it has proven that disclosing its Schedule B to the Attorney General would create a burden on its First Amendment rights.” In other words, notwithstanding Ms. Harris’ inability to adequately explain why the government needs these records, the resultant chilling effect on free speech that the records demand would ensure, were enough to convince the judge that a permanent injunction against the Attorney General’s order was necessary to protect AFP’s First Amendment rights.

Ms. Harris’ office maintained that the information was required for compliance with California tax law. However, California law already provides the power to obtain donor information via subpoena – in the event that the nonprofit is being investigated for wrongdoing. Nowhere in Ms. Harris’ demands for this donor information was there an indication that any wrongdoing occurred; rather Ms. Harris was advancing the Democrats’ tactic of publicly outing political opponents so that they can be subject to intimidation and retaliation by government officials and the liberal media, to the point where renouncing their views or shrinking away from the public debate are the only available options.
Not so long ago, dissent was considered “the highest form of patriotism.” Now, Democrats are no longer satisfied with personal attacks in the vein of comparing climate change skeptics to Holocaust deniers, or forcing the resignation of business executives for holding unfashionable social views (regardless of their adoption of corporate policies that run counter to those personal views). The latest strategy is to criminalize dissent – witness the actions of New York Attorney General Eric Schneiderman, joined by other Democratic attorneys general, who is attempting to coerce certain energy firms to submit to the current climate change consensus through the threat of investigations and possible fraud and racketeering charges. In another time (and under Republican administrations), the use of prosecutorial powers as a political cudgel would send liberals into convulsions of rage, intoning about dark, Nixonian tactics or vague insinuations of the impending theocracy.

Now, while these maneuvers by Democratic attorneys general will likely not end in prosecution for those energy firms, they do fall in line with what Ms. Harris is attempting here in California, specifically an attempt to suppress and silence their political opponents. That is why the decision last week in federal court was so important to not only AFP, but to the preservation of a free and robust political debate in California and across America. Private citizens should be emboldened to participate in public policy debates, and if their preferred method of civic engagement is a financial donation to an organization with the time and resources to advance certain policies, then those citizens should be able to exercise that right without fear of retribution from government officials.

Kamala Harris will no doubt continue to attempt to curtail the First Amendment should she succeed Barbara Boxer in the Senate – that is where Harry Reid spends his time trying to police political speech, when he is not busy getting into, and losing, fights with exercise equipment. But last Thursday’s decision should serve as a reminder to Ms. Harris that politicians should strive to protect the First Amendment rights of the citizens that they serve, not attempt to intimidate them into silence. Hopefully, AFP and other civic-minded organizations will use this resounding victory to continue to remind her and others of that fact.

Alexander Tomescu is an associate attorney at Wewer & Lacy, LLP, focusing in the practice of election and campaign law.