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Media Alerts - Center for Competitive Politics v. Harris - Ninth Circuit
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June 9, 2015
  Center for Competitive Politics v. Harris - Ninth Circuit
Headline: Ninth circuit panel affirms district court's denial of a nonprofit corporation's motion for preliminary injunction to prevent the disclosure of the names and addresses of the organization's contributors to the CA Attorney General on First Amendment freedom of association grounds.

Area of Law: Remedies, Preliminary Injunctions

Issues Presented: Whether a charitable organization is entitled to a preliminary injunction to prevent the CA Attorney General from requiring it to disclose the names and contributions of the organization's "significant donors" on an unredacted copy of the organization's IRS Form 990 Schedule B as a condition of soliciting funds in CA?

Brief Summary: Plaintiff, a charitable organization, sought a preliminary injunction to prevent the California Attorney General from requiring disclosure of the names and addresses of plaintiff's contributors. IRS Form 990 Schedule B contains this information and all charitable organizations have to provide this form to the state's Attorney General to solicit tax-deductible contributions in California.

The panel rejected plaintiff's arguments that the state's disclosure requirement violated plaintiff's First Amendment right of free association and, in the alternative, that this requirement was preempted by federal law. The panel held that plaintiff failed to show that the disclosure requirement was, in and of itself, injurious to plaintiff or any actual burden on its First Amendment rights or that of its supporters. The panel also rejected plaintiff's contention that Congress expressly preempted state agencies from requiring the information or that they intended to do so. Plaintiff also failed to show their first amendment rights had been infringed. The panel affirmed the district court's denial of the Motion for a preliminary injunction.

Extended Summary: Plaintiff Center for Competitive Politics ("CCP") sought a preliminary injunction in its action against Kamala Harris in her official capacity as Attorney General of the State of California. CCP attempted to enjoin the Attorney General from requiring disclosure of an unredacted version of the Internal Revenue Service Form 990 Schedule B ("Schedule B") which lists the names and addresses of the organization's contributors. Charitable organizations are required to provide this form to the state Attorney General's Office in order to solicit tax-deductible contributions in California.

CCP argued that the Attorney General's demand for Schedule B violates its First Amendment right to freedom of association and, also, is preempted by federal law and that a preliminary injunction is necessary to prevent the disclosure of its contributors. A party that seeks a preliminary injunction must prove (1) that they are likely to succeed on the merits, (2) they will suffer irreparable harm, (3) the balance of equities tips in their favor, (4) and the public interest favors an injunction.

The panel rejected CCP's contention that the state's disclosure requirement infringes the organization's freedom of association because such disclosure would deter charitable contributions which are the "lifeblood of organizations engaged in the public debate." The panel applied "exacting scrutiny in the context of First Amendment challenges to disclosure requirements, Citizens United v. FEC, 558 U.S. 310, 366 (2010). Exacting scrutiny "encompasses a balancing test under which, "n order for a government action to survive exacting scrutiny, 'the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.'" The panel ruled that "CCP has not demonstrated any 'actual burden' . . . on its supporters' First Amendment rights," noting that "CCP does not claim and produces no evidence to suggest that their significant donors would experience threats, harassment, or other potentially chilling conduct as a result of the Attorney General's disclosure requirement." The panel further noted that disclosure of CCP's donors would not be "public" because the Attorney General keeps Form 990 Schedule B confidential. The panel rejected CCP's argument "that the Attorney General's systems for preserving confidentiality are not secure, and that its significant donors' names might be inadvertently accessed or released," noting that "such arguments are speculative, and do not constitute evidence that would support CCP's claim that disclosing its donors to the Attorney General for her confidential use would chill its donors' participation." On the other side of the balancing test, the panel accepted the Attorney General's justifications for employing a disclosure requirement instead of issuing subpoenas ("that having immediate access to Form 990 Schedule B increases her investigative efficiency, and that reviewing significant donor information can flag suspicious activity") and concluded that "the disclosure requirement bears a "substantial relation" to a "sufficiently important" government interest," citing Citizens United.

The panel also rejected CCP's contention that federal law preempts state law through express, conflict, and field preemption. CCP's argument relies on federal laws preventing public inspection of the names or addresses of an organization's contributors or the release of the information to state agencies. Express preemption requires Congress to explicitly provide the extent to which the federal provision preempts state law. There is nothing in the text of the Internal Revenue Codes at issue that addresses whether a state official can require an organization to disclose the information, so express preemption must fail. The legislative intent of Congress in enacting the federal laws cited by CCP was to curtail loose practices by the IRS, not to regulate state agencies. CCP, therefore, cannot prove that they are likely to succeed based on preemption.

The panel affirmed the district court's denial of CCP's motion for a preliminary injunction, holding that CCP has not shown a likelihood of success on the merits and that it is not likely that CCP will suffer irreparable harm from enforcement of the disclosure requirement.

To read the full opinion, please visit:

Argument Date: December 8, 2014

Date of Issued Opinion: May 1, 2015

Docket Number: 2:14-cv-00636-MCE-DAD

Decided: Affirmed

Case Alert Author: Matthew J. Gustin

For Center for Competitive Politics, Plaintiff: Allen Dickerson, PHV, Lead Attorney, PRO HAC VICE, Center for Competitive Politics, Alexandria, VA; Alan Gura, Gura & Possessky PLLC, Alexandria, VA.

For Kamala Harris, Defendant: Alexandra Robert Gordon, LEAD ATTORNEY, CA. Dept. of Justice, Office of the Attorney General, San Francisco, CA.

Author of Opinion: Morrison C. England, JR., Chief United States District Judge

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 06/09/2015 05:01 PM     9th Circuit  

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