A friend-of-the-court brief filed by 58 organizations this week asks the Supreme Court to hear the case Center for Competitive Politics v. Kamala Harris, Attorney General of California. The brief describes how Ms. Harris is violating the First Amendment protections of private association described in the 1958 landmark decision NAACP v. California, where the Alabama attorney general sought the names and addresses of NAACP members to stifle the civil rights movement.

The National Organization for Marriage, whose donor names were leaked by the IRS to hostile blogs, and nationally recognized conservative nonprofit organizations such as Media Research Center, Concerned Women for America, Citizens United, Family Research Council, Faith & Freedom Coalition, the Weyrich Lunch, Leadership Institute, and Project Veritas are among the 58 organizations on the brief.

The brief describes how Ms. Harris is using extortionate demands to intimidate and censor nonprofit advocacy organizations and charities by requiring they file with her a confidential tax return schedule showing their top donors. Those demands are worse than what the Alabama attorney general tried because they violate federal law protecting confidential tax return information. The New York attorney general is doing the same as Ms. Harris.

The larger problem in America is that political elites violate the law in ways that would result in fines or even jail for citizens, but too often the courts protect lawbreaking by the ruling class.

Here is a clip from part IV of the brief describing Ms. Harris’ clear violations of federal law, which, by the way, is supposed to impose criminal penalties on government officials who intentionally violate this law. The entire brief may be read here.

From the brief:

An August 5, 2015 bipartisan report of the Senate Finance Committee about the Internal Revenue Service’s treatment of nonprofit organizations identifies various unlawful disclosures of confidential tax information by the IRS, including the Form 990 Schedule B information of the National Organization of Marriage, one of the co-amici on this brief.^[1]

Recently publicized violations of disclosure of confidential tax return information by the IRS -- and of course what is publicized is based only on the times that the IRS was caught -- demonstrate that even the federal service with its supposedly sophisticated guards of confidentiality is untrustworthy.  State attorneys general are partisan elected positions subject to the temptations and whims of partisan politics no matter how dedicated and professional, making their offices potentially more untrustworthy in these circumstances.

Whether or not state attorneys general could guarantee that confidential tax return information would not be leaked intentionally for nefarious reasons, or disclosed to third parties unintentionally, the fact that any would demand confidential tax information as a condition of a license to engage in speech protected by the First Amendment must be deemed a violation of federal law.

Internal Revenue Code (IRC) sections 6103 and 6104 provide for the confidentiality of tax return information, and list the express and limited circumstances under which states may obtain confidential tax return information.  The ban on unlawful disclosure applies to the IRS and state officials.  IRC section 6103(a) states:  “Returns and return information shall be confidential, and except as authorized [under Title 26] no officer or employee of any state . . . shall disclose any return or return information.”  (Emphasis added.) 

Respondent’s (Kamala Harris) demand that nonprofits file their partial donor lists on this federally protected form is itself unlawful disclosure.  “The term ‘disclosure’ means the making known to any person in any manner whatever a return or return information.”  IRC section 6103(b)(8) (emphasis added).  The prohibition is not merely on disclosure to the general public.  “Any person” certainly must include persons within state (or federal) government whose offices are not expressly authorized to view confidential tax return information.  That reading is not only consistent with the federal statutes, but is required.  Otherwise, viewing confidential tax return information becomes a government free-for-all. 

Respondent’s demand for Form 990 Schedule B makes confidential tax return information “known” to Respondent and some unknown number of civil servants of unknown security clearances, legal training, or affiliations in her office who may not be suitably vetted or supervised for such sensitive matters.  See, for example, “Kamala Harris aide arrested for allegedly running rogue police force,” Politico, May 6, 2015.^[2]  Her demands are therefore illegal.

As interpreted by the IRS, the federal statutes’ ban on disclosure except as authorized by the statutes themselves is clear:  “For a disclosure of any return or return information to be authorized by the Code, there must be an affirmative authorization because section 6103(a) otherwise prohibits the disclosure of any return or return information by any person covered by section 7213(a)(1).”

Respondent’s arbitrary, dragnet licensing demands for names and addresses of donors listed on Form 990 Schedule B are not affirmatively authorized by IRC sections 6103 or 6104, thereby creating illegal “disclosure” within her office.  Civil and criminal penalties described in IRC section 7213 for state officials are not a matter for this Court to decide for the present Petition, but highlight the seriousness of confidentiality of tax return information, and are relevant to the reasons why this Court should grant certiorari to create notice that such conduct is reviewable as unlawful.

IRC sections 6103 and 6104 foreclose Respondent’s dragnet licensing demands.  Only “[u]pon written request by an appropriate State officer, the Secretary [of the Treasury] may make available for inspection or disclosure returns and return information of any organization described in section 501(c) (other than organizations described in paragraph (1) or (3) thereof) for the purpose of, and only to the extent necessary in, the administration of State laws regulating the solicitation or administration of the charitable funds or charitable assets of such organizations.”  IRC section 6104(c)(3)  (emphasis added).  The federal statutes are clear that such information may be obtained only in limited circumstances, and with statutory checks on disclosure to states.

Respondent’s demands creating disclosure of confidential tax return information are not required by the California Code, and certainly are not “necessary” -- a condition required by IRC section 6104(c)(3) -- to the licensing of charitable solicitation.  The court of appeals also failed to explain why such information, if ever relevant to an investigation of a particular nonprofit, could not be obtained by investigative methods consistent with the Fourth Amendment rather than through a dragnet licensing process.

Congress wisely did not presume the benevolence of state officials that the Ninth Circuit seemed to assume, and limited disclosure within states to expressly delineated circumstances.

Indeed, Respondent has already taken steps to further violate the IRC 6104(c)(3) requirement that disclosure be limited “only to the extent necessary in the administration of State laws regulating the solicitation or administration of the charitable funds or charitable assets of such organizations.”  In a recently proposed regulation, Respondent would make confidential tax information available for “administrative subpoenas,”^[3] which are issued unilaterally by government agencies without the need to show probable cause to judges.  Respondent would therefore be acting as a hub for disclosure to other, unlimited state offices, and her violations of federal law would be cloaked from notice to the victims. 

It is appropriate here to note that controversial former IRS official Lois Lerner collaborated extensively about Form 990 information and enforcement issues with state charitable solicitation officials and their umbrella organization, the National Association of State Charity Officials (NASCO), an affiliate of the National Association of Attorneys General.

At the same time her Tax Exempt division at the IRS was engaging in ideologically discriminatory policies, Ms. Lerner was collaborating with state officials to help “ramp up” their regulation of nonprofit organizations.  As reported in the BNA Daily Tax Report:^[4]

The increase in federal-state cooperation is not imagined, but confirmed by both federal and state officials.  According to both Lois Lerner, IRS Director, Exempt Organizations, and Mark Pacella, chief deputy attorney of the Pennsylvania Attorney General’s Office, information sharing between the IRS and state AGs is ramping up.  Over the past four years, Lerner said in April, state charity oversight officials referred 600 organizations to the IRS, and 90 percent of those referrals led to examinations.

And as reported at CNSNews.com:

Ms. Lerner touts a proposed rulemaking … to reduce barriers to states’ participation in the [IRS’] information-sharing program * * *  Lerner explained that the IRS expected to have regular interaction with NASCO about the new filing and monitor trends that arise with the new Form 990 . . . .^[5]

Ms. Lerner collaborated with state charity officials on her office’s redesign of IRS Form 990, noting their existing “compliance relationship” would increase.  As reported in 2009 by The NonProfit Times:

Lerner explained that the IRS expected to have regular interaction with NASCO about the new filing and monitor trends that arise with the new Form 990 and hoped the feedback would help shape future adjustments. The IRS and state regulators already have a compliance relationship — the IRS can give some information to state regulators about enforcement activities under the Pension Protection Act of 2006, while the state regulators can lead the IRS to potential tax violations. In 2008, EO disclosed nearly 200 enforcement activities to state agencies, including terminations and revocations, and state officials made 83 referrals to EO, including political activities, employment tax and failures in operating within designated exemption status.^[6]

The formerly accessible and collaborative Ms. Lerner has since been held in contempt of Congress for refusing to testify about her activities at the center of an IRS scandal involving its treatment of conservative nonprofit organizations and their donors.^[7]  Information continues to come forth about IRS targeting groups and individuals for apparent ideological reasons (“Lois Lerner Wanted To Audit A Group With Ties To Bristol Palin,” The Daily Caller, August 5, 2015),^[8] crass partisan statements (“Lois Lerner Criticized GOP As 'Crazies,' 'Assholes' In Emails,” The Huffington Post, September 29, 2014),^[9] and various alleged lawless abuses of power.

Which is to say that the presumption of benevolence the court of appeals accorded the government is misplaced.  Information continues to trickle out under congressional investigations,^[10] inspector general investigations,^[11] private lawsuits,^[12] and threats of contempt^[13] involving government malevolence towards conservative nonprofits.

The court of appeals erred by failing to find Respondent’s demands for donor information unlawful.  First of all, the charitable solicitation statute itself does not authorize the Attorney General to demand donor information in the licensing process.  Respondent’s prior restraint by her own regulation would effectively supersede federal law.  Secondly, even if authorized by state statute, federal law already sets the conditions under which federal tax return information deemed confidential by federal law may be obtained by states or state officials for law enforcement purposes. 

A third reason is that the demand is an extortionate unconstitutional condition because it forces nonprofits to choose between either parting with valuable and federally protected confidentiality of tax return information in order to exercise constitutionally protected rights, or foregoing their rights.  This is akin to an unconstitutional condition to obtain a permit as described in Koontz v. St. Johns River Water Management District, where this Court held, citing other examples of unconstitutional conditions, that a permit may not be conditioned on the deprivation of the applicant’s constitutional rights^] For the many reasons already set forth in this brief, Respondent’s demands violate the First Amendment as a condition for nonprofits to exercise First Amendment rights.

^[1] THE INTERNAL REVENUE SERVICE’S PROCESSING OF 501(C)(3) AND 501(C)(4) APPLICATIONS FOR TAX-EXEMPT STATUS SUBMITTED BY “POLITICAL ADVOCACY” ORGANIZATIONS FROM 2010-2013,  REP. 119, 114^th Cong. 1st Sess. (2015) 136,

http://op.bna.com/der.nsf/id/klan-9z4sa5/$File/FINAL%20Bipartisan%20Staff%20Report.pdf.

^[2] http://www.politico.com/story/2015/05/brandon-kiel-kamala-harris-aide-arrested-117683.html.

^[3]  See “California Charity Registration: Form 990 Schedule B Disclosure,” Nonprofit Law Blog, June 21, 2015, http://www.nonprofitlawblog.com/california-charity-registration-form-990-schedule-b-disclosure/.

 

^[4] “States Ramp Up Regulation of Nonprofits –

With Help from the Feds,” July 13, 2011” http://www.mondaq.com/unitedstates/x/138762/Corporate+Tax/States+Ramp+Up+Regulation+of+Nonprofits+With+Help+From+the+Feds

^[5] “CA, NY Attorneys General Accused of Violating Donor Confidentiality Laws,” August 2, 2013,   http://cnsnews.com/news/article/ca-ny-attorneys-general-accused-violating-donor-confidentiality-laws.

^[6]   “Attorney General Focusing On Fiduciary Responsibilities,” February 1, 2009, http://www.thenonprofittimes.com/news-articles/attorney-general-focusing-on-fiduciary-responsibilities/.

^[7]  “House votes to hold Lois Lerner in contempt of Congress,” The Washington Post, May 7, 2014, http://www.washingtonpost.com/blogs/post-politics/wp/2014/05/07/house-votes-to-hold-lois-lerner-in-contempt-of-congress.

^[8] http://dailycaller.com/2015/08/05/lois-lerner-wanted-to-audit-a-group-with-ties-to-bristol-palin/.

^[9] http://www.huffingtonpost.com/2014/07/30/lois-lerner-emails-_n_5634379.html.

^[10] See Footnote 8, supra.

^[11] “Treasury Inspector General: ‘Potential Criminal Activity’ Surrounding Lerner Emails,” Breitbart.com, February 27, 2015,

http://www.breitbart.com/big-government/2015/02/27/treasury-inspector-general-potential-criminal-activity-surrounding-lerner-emails/.

^[12] “Pro-Israel Z Street Trumps IRS in Federal Appellate Court Ruling,” The Jewish Press, June 21, 2015,

http://www.jewishpress.com/news/breaking-news/pro-israel-z-street-trumps-irs-in-federal-appellate-court-ruling/2015/06/21/.

^[13] “Federal judge threatens to hold IRS chief in

contempt,” FoxNews.com, July 30, 2015, http://www.foxnews.com/politics/2015/07/30/federal-judge-threatens-to-hold-irs-chief-in-contempt/