The San Francisco Ninth Circuit Court of Appeals overruled a U.S. District Court judge to give authority to California Attorney General Kamala Harris to obtain the donor list from the Koch Brothers-backed Americans for Prosperity Foundation.
The ‘Americans for Prosperity Foundation’ was founded by Charles and David Koch as a national foundation in 2004 and registered in all states, including California, as a nonprofit organization promoting limited government and free markets by educating individuals around the country about practical ways to improve their circumstances.
It became one of the most influential American conservative political advocacy organizations after the 2009 inauguration of President Barack Obama, when AFP helped transform the Tea Party movement into a potent political force to oppose the Obama agenda, such as the stimulus, Obamacare, and cap-and-trade.
AFP is especially loathed by unions for supporting limits on the collective bargaining rights of public-sector trade unions, right-to-work laws, and raising the federal minimum wage.
But AFP became the number one target of elected Democrat officials and their constituencies for the role the organization played in breaking Democrat majority control of the House of Representatives in 2010 and the U.S. Senate in 2014.
AFP has complied with the filing requirements with the Internal Revenue Service each year for over a decade and disclosed its nationwide list of major donors’ names and addresses on tax form “Schedule B” for a nonprofit charity. Federal criminal statutes protect the constitutional right to privacy by forbidding the IRS to make any unauthorized disclosure of charity donors to a 501(c)4 non-profit.
For a decade, California accepted AFP’s charitable registrations and renewals without need for filing Schedule Bs. But in 20014, California Attorney General and candidate for U.S. Senate Kamala Harris suddenly began demanding Schedule Bs under threat of draconian sanctions, such as personal fines against a charity’s officers.
In the suit filed to protect its donors’ names and contribution levels, AFP stated that Harris made the demand without “acknowledging any change in position, issuing any implementing regulations, or establishing any meaningful assurance of confidentiality.”
Harris blatantly acknowledged in court papers that she wants to use the confidential donor information to investigate potential fraudulent conduct, such as donors using a charity to fund their business or pass money to family members.
Harris and her family are hard edge progressives. She married top entertainment law Douglas Emhoff; her younger sister, Maya, is a Ford Foundation VP and former executive director of the ACLU of Northern California; and her brother-in-law is Tony West, the former No. 3 official at the Obama Administration’s Department of Justice.
The Democrat Party has been apoplectic since the 2010 Supreme Court decision in Citizens United that opened the door to allow outside groups to spend on political causes.
The Nation‘s John Nichols called the Justices who signed the majority opinion as “errand boys for the oligarchs” and a decision favoring “plutocracy.”
President Barack Obama scolded the five-member majority of the Court that was sitting just below him during his 2010 State of the Union address. He warned that the decision would “open the floodgates” and allow corporations and wealthy individuals to unduly influence American politics. His diatribe stunned Republicans and was cheered by Democrats who rightfully feared the growing influence of conservative donors and activists.
If Harris can “Name, Shame, and Silence Conservative Donors” of Americans for Prosperity Foundation, it would be a crowning achievement for the left and a “tremendous coup for Harris” in her campaign to replace retiring Senator Barbara Boxer, according to the Media ITE blog.
AFP in February was granted a preliminary injunction protecting against disclosure of the Foundation’s Schedule B by the district court after considering evidence of threats, violence, and harassment directed at the Foundation, as attested to in sworn affidavits and confirmed by accompanying documentation.
The court stated,:“Public disclosure of [the Foundation’s] Schedule B, and thus the names and addresses of its donors, would open those persons up to harassment, retaliation, and chilling of free speech.” It added: “These negative consequences would objectively work to chill protected First Amendment speech.”
But a three-judge Ninth Circuit Court of Appeals panel overturned the lower court judge, allowing California Attorney General Kamala Harris access to information from the Americans for Prosperity Foundation while the group’s lawsuit is being decided.
The appeals panel’s unanimous decision said that AFP failed to show reason to fear disclosure. The court wrote, “To the extent the district court found actual chilling or a reasonable probability of harassment from confidential disclosure to the attorney general, those findings are clearly erroneous,” said the panel for the U.S. Court of Appeals for the Ninth Circuit.
This is the second time this year the San Francisco-based Court has ruled for the Democrat running for the U.S. Senate on a challenge to the state’s requirement for nonprofits to disclose their conservative donors. The court in May also upheld an order for the nonprofit Center for Competitive Politics to report contributors who gave it $5,000 or more.
Derek Shaffer, Americans for Prosperity, said AFP will immediately appeal the ruling to the U.S. Supreme Court.
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