Recent stories about potential cabinet picks for a Biden Administration prompts more careful attention to privacy concerns by new appointees. For example, the discussion of California Attorney General Xavier Becerra as a possible pick for U.S. Attorney General raises the concern that issues such as the privacy of donors to non-profit organizations might be given short shrift in the new administration.
General Becerra succeeded Vice-President-Elect Kamala Harris as Attorney General in California and, unfortunately, continued and expanded her earlier efforts to breach donor privacy. Indeed, he has defended efforts to force disclosure of donors to 501(c)(3) non-profit organizations in a manner that severely threatens privacy and the freedoms of speech and association. Donor and membership lists have been protected from government scrutiny dating back to the 1958 Supreme Court cases, NAACP v. Alabama. The NAACP was understandably concerned that disclosure of its members would subject them to threats and retaliation. Such fears are no less valid today.
One judge reviewing a challenge by Americans for Prosperity (AFP) to the disclosure requirements in California noted in 2016 that such disclosure “chills the exercise of [the group’s] First Amendment freedoms to speak anonymously and to engage in expressive association” and that “this court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.” One need only look at recent headlines to understand that advocates for unpopular causes on both sides of the political spectrum continue to be the targets of threats and harassment from opposing members of the public. And past IRS targeting of unpopular political groups shows that it is not merely private citizens, but very often government officials who improperly retaliate against political opponents.
PPSA has supported AFP and other groups challenging California’s threats to privacy and the First Amendment, filing amicus briefs in the Supreme Court in support of petitions raising those issues. We will continue to stand with friends and allies across the ideological spectrum to protect donors from being targeted and harassed in an attempt to chill the exercise of their First Amendment rights.
Which brings us back to General Becerra and Vice-President-Elect Harris: PPSA would far prefer to have them as allies in protecting the privacy of donors regardless of ideological stripe. We are hopeful that events since Harris’s time as California AG have shown that people on all sides of the political spectrum face genuine threats to their privacy. And we hope that, if nominated and confirmed as U.S. Attorney General, General Becerra seriously reconsiders the hostility to privacy that is currently ascendant in California. We look forward to trying to persuade the new administration to avoid a comparable hostility at the national level. But if past proves prologue, we will challenge actions against donor privacy through advocacy in Congress and the courts.