Amicus Curiae Brief — Thomas More Law Center, Petitioner v. Rob Bonta, Attorney General of California

Supreme Court briefSep 25, 2019

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Nos. 19-251, 19-255

IN THE

Supreme Court of the United States

AMERICANS FOR PROSPERITY FOUNDATION,

Petitioner,

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS THE

ATTORNEY GENERAL OF CALIFORNIA,

Respondent.

THOMAS MORE LAW CENTER,

Petitioner,

XAVIER BECERRA, IN HIS OFFICIAL CAPACITY AS THE

ATTORNEY GENERAL OF CALIFORNIA,

Respondent.

On Petitions for Writs of Certiorari to the United

States Court of Appeals for the Ninth Circuit

Brief of the Public Interest Legal Foundation,

Center for Constitutional Jurisprudence,

Foundation for Michigan Freedom and

Texas Public Policy Foundation as

Amici Curiae in Support of Petitioners

J. CHRISTIAN ADAMS

KAYLAN PHILLIPS

Counsel of Record

PUBLIC INTEREST LEGAL FOUNDATION

32 E. Washington St., Ste. 1675

Indianapolis, IN 46204

(317) 203-5599

kphillips@publicinterestlegal.org

(Additional Counsel Inside Cover)

JOHN C. EASTMAN

ANTHONY T. CASO

The Claremont Institute Center

for Constitutional Jurisprudence

c/o Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

jeastman@chapman.edu

ROBERT HENNEKE

TEXAS PUBLIC POLICY FOUNDATION

901 Congress Avenue

Austin, Texas 78701

(512) 472-2700

rhenneke@texaspolicy.com

ERIC E. DOSTER

DOSTER LAW OFFICES, PLLC

2145 Commons Parkway

Okemos, MI 48864

(517) 977-0147

eric@ericdoster.com

Table of Contents

Table of Authorities ................................................. ii

Interests of Amici Curiae ......................................... 1

Summary of the Argument ...................................... 5

Argument.................................................................. 6

II.

III.

Compelled Disclosure Is Antithetical to

the Foundational Principles of the

United States ................................................. 6

The Recent History Demonstrates that

Donor Disclosure Is a Tool that Has Been

Used to Engage in Personal Attacks ............ 8

The Texas Public Policy Foundation Leaked Document........................ 8

National Organization for Marriage’s Leaked Tax Document ............ 9

IRS Targeting Scandal ..................... 10

Friends of Abe ................................... 11

League of United Latin American

Citizens v. Public Interest Legal

Foundation ........................................ 12

Chick-fil-A ......................................... 13

U.S. Virgin Islands Subpoena ......... 14

Donor Disclosure Has Also Been Used to

Engage in Personal Attacks in the Election Context ................................................. 14

California’s Proposition 8 ................. 15

Will & Grace ..................................... 17

Representative Joaquin Castro ........ 17

Michigan Chamber of Commerce ..... 18

SoulCycle........................................... 19

Conclusion .............................................................. 20

Table of Authorities

Cases

Center for Competitive Politics v. Harris,

136 S. Ct. 480 (2015) ........................................... 2

Citizens United v. FEC,

558 U.S. 310 (2010) .................................. 2, 15-16

Doe v. Reed,

561 U.S. 186 (2010) ............................. 2, 8 n.2, 16

Friedrichs v. California Teachers Ass’n,

136 S. Ct. 1083 (2016) ......................................... 2

League of Latin American Citizens v. Public Interest

Legal Foundation,

No. 1:18-cv-00423 (E.D. Va. April 12, 2018) .... 13

NAACP v. Ala. ex rel. Patterson,

357 U.S. 449 (1958) .......................................... 6-7

National Inst. of Family & Life Advocates v. Becerra,

138 S. Ct. 2361 (2018) .......................................... 2

National Org. for Marriage, Inc. v. Geiger,

135 S. Ct. 1860 (2015) ......................................... 2

National Org. for Marriage, Inc. v. United States,

24 F. Supp. 3d 518 (E.D. Va. 2014) .............. 2, 10

NorCal Tea Party Patriots v. IRS,

No. 1:13-cv-341, 2014 U.S. Dist. LEXIS 97229

(S.D. Ohio July 17, 2014) .................................... 9

iii

ProtectMarriage.com—Yes on 8 v. Bowen, v. Bowen,

752 F.3d 827 (9th Cir. 2014) ............................... 2

True the Vote, Inc. v. IRS,

831 F.3d 551 (D.C. Cir. 2016) ...................... 10-11

True the Vote v. Lois Lerner,

137 S. Ct. 1068 (2017) .......................................... 2

Constitutions and Statutes

Cal. Const. Art. I § 7.5 ........................................... 15

Cal. Govt. Code Ann. § 84211(f) ............................ 15

Other Authorities

Brief Summary of the Ballot Proposal ............. 18-19

Caitlin O’Kane, Debra Messing demands attendee

list for Beverly Hills Trump fundraiser, president

hits back, CBS News (Sept. 2, 2019) ..................... 17

CEI, First Amendment Fight: CEI’s Climate Change

Subpoena (April 5, 2017) ....................................... 14

Debra Messing (DebraMessing) ............................ 17

Fredreka Schouten, Rep. Joaquin Castro tweets

names, employers of Trump donors in San Antonio,

CNN (Aug. 7, 2019) ........................................... 17-18

Kate Taylor, For Chick-fil-A, impact trumps ‘any political or cultural war’ when it comes to controversial

donations, Business Insider (May 15, 2019) .... 13-14

Kelly Phillips Erb, IRS Targeting Scandal: Citizens

United, Lois Lerner And The $20M Tax Saga That

Won’t Go Away (June 24, 2016) ............................. 11

Michael Cieply and Nicholas Confessore, Leaning

Right in Hollywood, Under a Lens, The New York

Times (Jan. 22, 2014) ............................................. 12

Michelle Ye Hee Lee, Trump’s critics are targeting

his donors, sparking fears of a backlash against disclosure, Washington Post (Sept. 10, 2019) ............ 18

Nolan Finley, Finley: Left turns to terroristic tactics

to silence critics, The Detroit News

(July 11, 2018) ........................................................ 19

NOM, National Organization for Marriage Demands

a Federal Investigation of the Human Rights Campaign and the Internal Revenue Service (April 5,

2012) ......................................................................... 9

Pew Research Center, Mobile Fact Sheet (June 12,

2019) .................................................................. 16-17

Rani Molla, One Trump fundraiser was all it took to

slash SoulCycle’s attendance, Vox

(Sept. 5, 2019).................................................... 19-20

Ted Johnson, Friends of Abe: Hollywood’s Comfort

Zone for Industry Conservatives Winds Down, Variety (April 27, 2016) .................................................. 11

Testimony of J. Christian Adams, U.S. House Subcommittee on the Constitution, Civil Rights and

Civil Liberties (Sept. 10, 2019) ......................... 12-13

The Federalist No. 1.............................................. 6-7

Thomas M. Messner, The Price of Prop 8,

Heritage Foundation Backgrounder, No. 2328 (Oct.

22, 2009) ................................................................. 16

Thomas Paine, COMMON SENSE, Introduction ........ 7

Transcript of Motion Hearing, League of Latin American Citizens v. Public Interest Legal Foundation

(May 24, 2019) ........................................................ 13

Trish Loughran, THE REPUBLIC IN PRINT: PRINT

CULTURE IN THE AGE OF U.S. NATION BUILDING

(2007) ........................................................................ 7

INTERESTS OF AMICI CURIAE1

The Public Interest Legal Foundation, Inc., (the

“Foundation”) is a non-partisan, public interest organization incorporated and based in Indianapolis,

Indiana. The Foundation’s mission is to promote the

integrity of elections nationwide through research,

education, remedial programs, and litigation. The

Foundation also seeks to ensure that voter qualification laws and election administration procedures are

followed. Specifically, the Foundation seeks to ensure

that the nation’s voter rolls are accurate and current,

working with election administrators nationwide and

educating the public about the same. The Foundation

has terminated fundraising in California due to California’s insistence on forcing the production of unredacted donor information as the Foundation has serious concerns about how the state will use and safeguard its donors information from abusive behavior.

The Center for Constitutional Jurisprudence was

established in 1999 as the public interest law arm of

the Claremont Institute, the mission of which is to restore the principles of the American Founding to their

rightful and preeminent authority in our national life.

Those principles include protection of a robust protection of the First Amendment’s freedoms of speech and

association to ensure that government remains ac-

1 No counsel for a party authored this brief in whole or in part,

nor did any person or entity, other than amici curiae and their

counsel, make a monetary contribution intended to fund the

preparation or submission of this brief. All parties were timely

notified and have consented to the filing of this brief.

countable to the people. In addition to providing counsel for parties at all levels of state and federal courts,

the Center has represented parties or participated as

amicus curiae before this Court in several cases of

constitutional significance addressing the Constitution’s protection of First Amendment rights, including

National Inst. of Family & Life Advocates v. Becerra,

138 S. Ct. 2361 (2018); True the Vote v. Lois Lerner,

137 S. Ct. 1068 (2017); Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016); Center for Competitive Politics v. Harris, 136 S. Ct. 480 (2015); National

Org. for Marriage, Inc. v. Geiger, 135 S. Ct. 1860

(2015); Doe v. Reed, 561 U.S. 186 (2010); and Citizens

United v. FEC, 558 U.S. 310 (2010). Of particular relevance here, the Center was also counsel for the ProtectMarriage.com—Yes on 8 committee, which unsuccessfully sought to restrict California’s further dissemination of donors to an initiative defining marriage after extensive and well-documented acts of retaliation and violence against such donors. ProtectMarriage.com—Yes on 8 v. Bowen, v. Bowen, 752 F.3d

827 (9th Cir. 2014), cert. denied sub nom. ProtectMarriage.com—Yes on 8 v. Padilla, 135 S. Ct. 1523 (2015).

The Center also served as counsel for the National Organization for Marriage in its suit for damages

against the Internal Revenue Service for the IRS’s illegal disclosure of the confidential portion of its tax

return containing its list of major donors. National

Org. for Marriage, Inc. v. United States, 24 F. Supp.

3d 518 (E.D. Va. 2014).

The Foundation for Michigan Freedom is a nonprofit, nonpartisan organization recognized by the Internal Revenue Service as tax-exempt pursuant to

Section 501(c)(3) of the Internal Revenue Code. A core

mission of the Foundation for Michigan Freedom is to

undertake legal research projects in the public interest and to provide legal support in litigation designed

to present positions on behalf of the public at-large on

matters of public interest. In particular, the Foundation for Michigan Freedom is dedicated to the promotion and protection of the democratic process, including the right of all citizens to participate and enter the

marketplace of ideas. As a nonprofit, nonpartisan organization, the Foundation for Michigan Freedom

recognizes that the First Amendment protects citizens from government interference of our right to

petition, criticize, and speak openly and freely on matters of public policy. The ability to do so anonymously

and without fear of retribution is a key principle of

that right and one that should be protected for all

viewpoints, regardless of whether one agrees with the

particular speaker.

Texas Public Policy Foundation is a nonprofit,

nonpartisan research organization based in Austin,

Texas, and is dedicated to promoting liberty, personal

responsibility, and free enterprise through academically-sound research and outreach. Since its inception

in 1989, the Foundation has emphasized the importance of limited government, private enterprise,

private property rights, and the rule of law. In accordance with its central mission, the Foundation has

hosted policy discussions, authored research, presented legislative testimony, and drafted model ordinances to advance principles of liberty and the Constitution.

All amici have a substantial interest in the resolution of this matter as all amici are 501(c)(3) charitable

organizations reliant on funding from generous donors. California’s attempt to coerce the disclosure of

charitable donors implicates serious constitutional

concerns and chills the speech of amici.

SUMMARY OF ARGUMENT

Donor disclosure is a tool that has been used to

fuel personal attacks. The Petitioners provided compelling evidence of attacks made against their donors.

See, e.g., Americans for Prosperity Petition at 11-12;

Thomas More Law Center Petition at 13. Unfortunately, their experiences are not isolated. Amici have

suffered or fear suffering similar attacks. Indeed, attacks on donors who contribute to causes or candidates with which one disagrees are prolific.

Anonymity is woven into the American fabric.

Many of the revolutionary documents that stirred the

colonists towards independence were penned under

pseudonyms. The reasons for seeking to remain anonymous were myriad then and remain so now. Anonymity must be protected from government overreach. Specifically, here, donors must be free to give

anonymously if they so choose. It is no solace to promise that the disclosure is only to the government, especially when that promise appears empty. See, e.g.,

Americans for Prosperity Petition at 7-10; Thomas

More Law Center Petition at 8.

Amici herein compile examples of voracious probes

for donor identities by ideological foes and the harms

stemming from disclosure of donor information, including examples where the disclosure was not authorized by law yet still occurred.

ARGUMENT

Compelled Disclosure Is Antithetical to

the Foundational Principles of the

United States.

“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy

may constitute an effective restraint on freedom of association.” NAACP v. Ala. ex rel. Patterson, 357 U.S.

449, 462 (1958).

Indeed, anonymous speech was essential to the

founding of the United States. Prominent founders

communicated their positions to colonists through

written works under pseudonyms such as Publius,

Cato, and Federal Farmer. “Publius” is the name chosen by those who wrote the Federalist Papers, a series

of essays aimed to garner support for the ratification

of the United States Constitution. The first such paper, now known to be authored by Alexander Hamilton, speaks to the author’s intent of presenting facts

that are not clouded by bias regarding any one author

himself.

In the course of the preceding observations, I

have had an eye, my fellow-citizens, to putting

you upon your guard against all attempts,

from whatever quarter, to influence your decision in a matter of the utmost moment to

your welfare, by any impressions other than

those which may result from the evidence of

truth.

…

My motives must remain in the depository of

my own breast. My arguments will be open to

all, and may be judged of by all. They shall at

least be offered in a spirit which will not disgrace the cause of truth.

The Federalist No. 1.

Thomas Paine’s “Common Sense” was originally

published anonymously. As Paine explained in his

work, “Who the Author of this Production is, is wholly

unnecessary to the Public, as the Object for Attention

is the Doctrine itself, not the Man.” Thomas Paine,

COMMON SENSE, Introduction (emphasis in original).

In addition to avoiding clouded judgments, founders understood the risk that came from speaking out

on issues of controversy. In response to calls for disclosure of the identities of the authors of Anti-federalist writings, one individual wrote that requiring an

author to sign his name “‘is as much as to say, Give

me a stick, and I will break your head.’” Trish

Loughran, THE REPUBLIC IN PRINT: PRINT CULTURE IN

THE AGE OF U.S. NATION BUILDING at page 134 (2007).

In 1958, this Court was confronted with the issue

of the State of Alabama seeking forced disclosure of

the names and addresses of members of the NAACP.

NAACP, 357 U.S. 449. The Court recognized that

“[e]ffective advocacy of both public and private points

of view, particularly controversial ones, is undeniably

enhanced by group association.” Id. at 460. Abridgement of the freedom of association “even though unintended, may inevitably follow from varied forms of

governmental action.” Id. at 461. The Court found

that Alabama’s forced disclosure of the NAACP’s

member lists “is likely to affect adversely the ability

of petitioner and its members to pursue their collective effort to foster beliefs” because “it may induce

members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations

and of the consequences of this exposure.” Id. at 46263. Those fears and consequences are still present today.

II.

Recent History Demonstrates that Donor

Disclosure Is a Tool that Has Been Used

to Engage in Personal Attacks.

Petitioners presented the district court with evidence demonstrating that “its employees, supporters

and donors face public threats, harassment, intimidation, and retaliation once their support for and affiliation with the organization becomes publicly known.”

Americans for Prosperity Petition at 49a.2 While, the

evidence Petitioners presented alone demonstrates

why the petitions should be granted, recent history

solidifies why this issue is of such exceptional importance. Amici present even more examples.

Texas Public Policy Foundation

Leaked Document

Amicus Texas Public Policy Foundation experienced the unauthorized disclosure of its private donor

information. In its complaint against the IRS, “Texas

Amici contend that the procedure at issue in these cases, where

the Petitioners had to prove the existence of threats, harassment, and reprisals, is likely to result in varying opinions on

what level of harm or perceived harm is needed. See Doe v. Reed,

561 U.S. 186, 241 (2010) (Thomas, J, dissenting) (“Significant

practical problems will result from requiring as-applied challenges to protect referendum signers' constitutional rights.”)

Nevertheless, as the district court found, the Petitioners satisfied the burden here.

Public Policy Foundation assert[ed] that ‘[i]n or

around the spring of 2012, the IRS illegally released

TPPF’s 990 form with the donor information unredacted [and s]ubsequently, this highly confidential information was widely circulated in the media.’” NorCal Tea Party Patriots v. IRS, No. 1:13-cv-341, 2014

U.S. Dist. LEXIS 97229, at *43-44, (S.D. Ohio, July

17, 2014).

Importantly, this unredacted donor information is

confidential under federal law, 26 U.S.C. § 6103, and

federal law provides civil damages for unauthorized

inspection or disclosure, 26 U.S.C. § 7431. Despite

these protections, Texas Public Policy Foundation’s

donor information was still disclosed.

National Organization for

Marriage’s Leaked Tax Document

The National Organization for Marriage (“NOM”)

is a nonprofit organization that seeks to protect marriage across the country. In November of 2012, voters

were set to vote on marriage-related issues in Maine,

Maryland, Minnesota, and Washington. The political

climate surrounding the issue of marriage was contentious nationwide. In March of 2012, NOM discovered that its confidential Schedule B from the tax year

2008 was posted on its political opponent’s website.

NOM, National Organization for Marriage Demands

a Federal Investigation of the Human Rights Campaign and the Internal Revenue Service (April 5,

2012), http://www.nomblog.com/21437.

As with Texas Public Policy Foundation, the existence of a confidentiality statute in federal law made

no difference, and NOM’s Schedule B was disclosed.

NOM filed suit in federal court, represented by

Amici Center for Constitutional Jurisprudence and

Public Interest Legal Foundation. The Internal Revenue Service (IRS) admitted “that it improperly released the Schedule B.” National Org. for Marriage,

Inc. v. United States, IRS, 24 F. Supp. 3d 518, 532

(E.D. Va. 2014). The court determined that, contrary

to federal law, the IRS disclosed the confidential tax

document to an individual named Matthew Meisel.

Id. at 520. Meisel then provided the document to the

Human Rights Campaign, a prominent national lesbian, gay, bisexual, transgender and queer civil rights

organization. Id. at 521. After announcing that it

would not prosecute Meisel himself, the Department

of Justice declined to grant Meisel immunity, which

would have compelled him to answer deposition questions about his source in the IRS. The district court

then denied NOM’s request for punitive damages,

finding that it had “made no showing from which a

reasonable jury could find that the disclosure of its

Schedule B was the result of willfulness or gross negligence.” Id. at 527. The court determined that the disclosure, which ended up heavily publicized, constituted a single disclosure, subject to either $1,000 in

statutory damages or the actual damages stemming

from the one disclosure. Id. at 532.

IRS Targeting Scandal

In May of 2013, it was discovered the IRS “‘developed and used inappropriate criteria to identify applications” from certain organizations associated with

the “tea party” movement. True the Vote, Inc. v. IRS,

831 F.3d 551, 559 (D.C. Cir. 2016). The revelation con-

firmed what many groups thought to be true: applications from certain groups were subjected to heightened scrutiny based on the groups’ viewpoints.

The Treasury Inspector General for Tax Administration issued a report outlining “‘requests for information that [they] later (in whole or in part) determined to be unnecessary.’” Id. at 560. Specifically, one

question later determined to be unnecessary involved

requesting the names of donors. Id.

The IRS Targeting Scandal was a violation of the

public’s trust that resulted in numerous congressional

hearings, resignations, court filings, and official reports. See Kelly Phillips Erb, IRS Targeting Scandal:

Citizens United, Lois Lerner And The $20M Tax Saga

That

Won’t

Away

(June

24,

2016)

https://www.forbes.com/sites/kellyphillipserb/2016/

06/24/irs-targeting-scandal-citizens-united-lois-lerner-and-the-20m-tax-saga-that-wont-go-away.

Friends of Abe

Another association that has been subjected to IRS

scrutiny is called “Friends of Abe.” “Friends of Abe,” a

nod to the country’s sixteenth President, is comprised

of conservative writers, actors and producers in Hollywood. Just like “Friends of Bill” was designed to create a space for those struggling with alcoholism to remain anonymous, Friends of Abe was designed to

serve as a space where individuals “‘could be who they

were and think what they thought without being criticized.’” Ted Johnson, Friends of Abe: Hollywood’s

Comfort Zone for Industry Conservatives Winds

Down, Variety (April 27, 2016), https://variety.com/

2016/biz/news/friends-of-abe-hollywood-winds-down1201760428/.

Friends of Abe sought 501(c)(3) nonprofit status

but encountered what appeared to be heightened

scrutiny. Specifically, the IRS sent “a demand —

which was not met — for enhanced access to the

group’s security-protected website, which would have

revealed member names.” Michael Cieply and Nicholas Confessore, Leaning Right in Hollywood, Under a

Lens, The New York Times (Jan. 22, 2014),

https://www.nytimes.com/2014/01/23/us/politics/leaning-right-in-hollywood-under-a-lens.html?_r=1&referrer=. “Tax experts said that an organization’s

membership list is information that would not typically be required. The I.R.S. already had access to the

site’s basic levels, a request it considers routine for

applications for 501(c)(3) nonprofit status.” Id.

Friends of Abe later discontinued activities.

League of United Latin American

Citizens v. Public Interest Legal

Foundation

Amicus Public Interest Legal Foundation itself

has experienced the hardships adjacent to attacks

from ideological foes. Most recently, the Foundation

was sued by the League of United Latin American Citizens as a result of its efforts to educate the public on

public information obtained from the Commonwealth

of Virginia.

The Foundation sought, collected, and publicized

public records from Virginia election officials regarding noncitizen registration and voting in Virginia. See

Testimony of J. Christian Adams, U.S. House Subcommittee on the Constitution, Civil Rights and Civil

Liberties (Sept. 10, 2019) at 6. These public records

included lists of “declared non-citizen” cancellations

and the Foundation republished the public government records in their original form and spoke about

them. It was later discovered that Virginia was improperly canceling citizens as “non-citizens.” The

Foundation notified Virginia that it is in violation of

federal law for removing citizens from its rolls. Rather

than work with Virginia elections officials to fix the

problem, the League of United Latin American Citizens and several individuals sued the Foundation for

defamation and violations of the Voting Rights Act.

League of Latin American Citizens v. Public Interest

Legal Foundation, No. 1:18-cv-00423 (E.D. Va., filed

April 12, 2018). “That case has since settled and [the

Foundation] apologized for overly relying on the government list maintenance records and repeated statements by election officials that the cancelled registrants were declared non-citizens.” Testimony of J.

Christian Adams at 6. A sizeable portion of the plaintiffs’ lawsuit was to bore into the Foundations fundraising and donor information through discovery,

matters the court eventually indicated were irrelevant. Transcript of Motion Hearing at 21, League of

Latin American Citizens v. Public Interest Legal

Foundation (May 24, 2019) (“[B]reaking down where

their money came from appears to this Court at least

at this juncture a waste of everyone’s time.”) Nevertheless the damage was done. This was one of multiple cases that have the ancillary benefit of harassing

ideological foes for donor information.

Chick-fil-A

Chick-fil-A’s charitable giving has been under fire

since “CEO Dan Cathy said the company supported

‘the biblical definition of the family unit.’” Kate Taylor, For Chick-fil-A, impact trumps ‘any political or

cultural war’ when it comes to controversial donations,

Business

Insider

(May

15,

2019),

https://www.businessinsider.com/chick-fil-a-explainsdonations-groups-considered-anti-gay-2019-5.

In the years that followed, the company has faced

backlash for additional charitable giving, including to

the Fellowship of Christian Athletes and the Salvation Army. Id.

U.S. Virgin Islands Subpoena

The Competitive Enterprise Institute (CEI) is a

non-profit organization that focuses on the principles

of limited government and individual liberty. CEI is

involved in the climate policy debate, another hotly

contested issue in the United States. “On April 7,

2016, CEI received a subpoena from U.S. Virgin Islands Attorney General Claude Walker demanding a

full decade’s worth of [its] communications, emails,

statements, and other documents regarding energy

and climate policy. Those documents included private

donor information.” CEI, First Amendment Fight:

CEI’s Climate Change Subpoena (April 5, 2017),

https://cei.org/climatesubpoena. CEI engaged in a

months-long fight regarding the subpoena, and it was

eventually withdrawn.

III.

Donor Disclosure Has Also Been Used to

Engage in Personal Attacks in the Election Context.

As Petitioners note, disclosures of charitable donations are distinguishable from election-related disclosures. See Americans for Prosperity Foundation Petition at 22-23; Thomas More Law Center Petition at

23-25. Yet the following examples from the election

context demonstrate the harms that may flow from

the targeting of donors.

California’s Proposition 8

A contentious state ballot proposition in California

epitomizes precisely why donors to organizations addressing hot button issues may wish to stay anonymous. Proposition 8 concerned an amendment to California’s constitution providing that “[o]nly marriage

between a man and a woman is valid or recognized in

California.” Cal. Const. Art. I § 7.5. Proposition 8

quickly became a household name across the nation

as the country was sharply divided on the issue of the

redefinition of marriage. Pursuant to state law, a person who gave $100 or more to a committee supporting

or opposing Proposition 8 would be subject to public

disclosure. Cal. Govt. Code Ann. § 84211(f). This disclosure included the donor’s full name, street address,

and occupation. Id. As Justice Thomas recounted, disclosures of even minor donors had major consequences.

Some opponents of Proposition 8 compiled

this information and created Web sites with

maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property

damage, or threats of physical violence or

death, as a result. They cited these incidents

in a complaint they filed after the 2008 election, seeking to invalidate California's mandatory disclosure laws. Supporters recounted

being told: “‘Consider yourself lucky. If I had

a gun I would have gunned you down along

with each and every other supporter,’” or, “‘we

have plans for you and your friends.’” Complaint in ProtectMarriage.com--Yes on 8 v.

Bowen, Case No. 2:09-cv-00058-MCE-DAD

(ED Cal.), P 31.

Citizens United v. FEC, 558 U.S. 310, 481 (2010)

(Thomas, J., dissenting in part).

Accounts of attacks on donors supporting Proposition 8 have been well-documented. See also, Thomas

M. Messner, The Price of Prop 8, Heritage Foundation

Backgrounder, No. 2328 (Oct. 22, 2009), available at

https://www.heritage.org/marriage-and-family/report/the-price-prop-8 and Doe v. Reed, 561 U.S. 186,

205 (2010) (Alito, J., concurring) (“The widespread

harassment and intimidation suffered by supporters

of California’s Proposition 8 provides strong support

for an as-applied exemption in the present case.”).

Following Proposition 8, the targeting of donors

has increased exponentially. “The success of such intimidation tactics has apparently spawned a cottage

industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First

Amendment rights.” Citizens United, 558 U.S. at 482

(Thomas, J., dissenting in part) (emphasis in original). As Justice Thomas acknowledged, “‘the advent

of the Internet’ enables ‘prompt disclosure of expenditures,’ which ‘provide[s]’ political opponents ‘with the

information needed’ to intimidate and retaliate

against their foes.” Id. at 484 (citing to part IV of the

Court’s decision). The proliferation of the Internet

over the past decade, including the ubiquity of portable Internet-enabled devices, further underscores this

real concern. See Pew Research Center, Mobile Fact

Sheet (June 12, 2019), https://www.pewinternet.org/fact-sheet/mobile/ (“The vast majority of

Americans – 96% – now own a cellphone of some kind.

The share of Americans that own smartphones is now

81%, up from just 35% in Pew Research Center’s first

survey of smartphone ownership conducted in 2011.”)

Will & Grace

In August of 2019, actors Debra Messing and Eric

McCormack of the television program “Will & Grace”

each posted on Twitter a news story regarding a President Trump fundraiser to be held in Beverly Hills.

Messing stated, “Please print a list of all attendees

please. The public has a right to know.” Debra Messing (DebraMessing), https://twitter.com/DebraMessing/status/ 1167658588384501760.

Messing went on to say, “‘I am proud to be a donor

when I contribute to a campaign,’… ‘I am happy to be

listed when I attend a fundraiser. I am assuming anyone who donates to Trump's fundraiser would feel

the same. Why wouldn’t they?’” Caitlin O’Kane, Debra

Messing demands attendee list for Beverly Hills

Trump fundraiser, president hits back, CBS News

(Sept. 2, 2019), https://www.cbsnews.com/news/

trump-fundraiser-beverly-hills-debra-messing-demands-attendee-list-for-fundraiser-event-presidenthits-back-today/.

Representative Joaquin Castro

Texas Representative Joaquin Castro, brother to

Democratic presidential candidate Julián Castro, represents the city of San Antonio. Shortly after a tragic

event in El Paso, Texas, more than 500 miles away

from San Antonio, Representative Castro posted on

social media a list of donors to President Trump who

live in San Antonio. “‘These contributions are fueling

a campaign of hate that labels Hispanic immigrants

as “invaders,”’ Castro wrote, posting a graphic that included the names and employers of 44 Trump donors,

including several retirees.” Fredreka Schouten, Rep.

Joaquin Castro tweets names, employers of Trump donors in San Antonio, CNN (Aug. 7, 2019),

https://www.cnn.com/2019/08/06/politics/joaquin-castro-trump-donor-names/index.html.

The chilling effect of Castro’s social media post

was felt outside San Antonio. “A Trump donor in Beverly Hills, who plans to attend the upcoming fundraiser, said he was appalled by Castro’s tweet. The

donor asked that neither he nor his wife be identified

out of fear that someone would search for them online

and find their home.” Michelle Ye Hee Lee, Trump’s

critics are targeting his donors, sparking fears of a

backlash against disclosure, Washington Post (Sept.

10, 2019), https://www.washingtonpost.com/politics/

president-trumps-critics-are-weaponizing-information-about-his-donors-raising-concerns-about-federal-donor-disclosure-requirements/2019/09/10/

b0b60ff8-cfe4-11e9-87fa-8501a456c003_story.html.

Michigan Chamber of Commerce

In 2018, Michigan voters considered “Ballot Proposal 2,” which sought to amend the state constitution

“to establish a commission of citizens with exclusive

authority to adopt district boundaries for the Michigan Senate, Michigan House of Representatives and

U.S. Congress, every 10 years.” See Brief Summary of

the Ballot Proposal at 2, https://www.house.mi.gov/

hfa/PDF/Alpha/Ballot_Proposal_2018-2_VNP_

Redistricting.pdf. Among the opponents of Proposal 2

was the Michigan Chamber of Commerce.

An organization called Represent.Us ran advertisements targeting Members of the Chamber’s Executive Board specifically. Notably, “[t]hose pictured in

the ads are not identified as chamber board members,

but rather as a ‘dark money group’ formed to deny

Michigan citizens their right to vote on ‘anti-gerrymandering.’ Along with their names and photographs, the companies they run are also listed.” Nolan

Finley, Finley: Left turns to terroristic tactics to silence

critics, The Detroit News (July 11, 2018),

https://www.detroitnews.com/story/opinion/columnists/nolan-finley/2018/07/12/political-terrorism-leftrepresent-us/774802002/. Social media comments on

the advertisements were concerning. “Posters repeatedly suggested [Chamber Chair] Davidoff should face

the guillotine, or be shot. One opined that violence

‘can be used for good.’ Several others urged the site’s

followers to confront Davidoff — and his kids — in

public. Another asked when the killing could start.”

Id.

SoulCycle

When one investor to SoulCycle, an indoor cycling company, hosted a fundraiser for President

Trump, a boycott of the company quickly followed.

The boycott has been successful. “SoulCycle attendance declined about 1 percent compared with the

same week a year earlier. That’s been followed with

consistent declines of 6 percent to 7.5 percent in subsequent weeks.” Rani Molla, One Trump fundraiser

was all it took to slash SoulCycle’s attendance, Vox

(Sept. 5, 2019), https://www.vox.com/2019/9/5/20851

538/soulcycle-boycott-attendance-down-data-earnest.

CONCLUSION

Modern politics has become vitriolic and even dangerous. Disclosure of donors to causes that engage the

public in controversial policy disputes puts those donors at risk, and will likely have a severe chilling effect on the exercise of First Amendment speech and

association rights. The petitions for writ of certiorari

should be granted to overturn California’s blatant attempt to facilitate the kind of threats and acts of retaliation described in this brief, by compelling the disclosure of donor lists produced to the IRS under a statutory promise of confidentiality.

Respectfully submitted,