That raises the possibility of later disclosure of the information, retaliation against donors, or both; whether it’s unusual enough for the U.S. Supreme Court to step in to stop it remains to be seen. Harris’s target and adversary in the resulting suit, by coincidence or otherwise, is the “Center for Competitive Politics, a vigorous supporter of political free-speech rights that does not get involved in election campaigns” but does speak out strongly about the First Amendment implications of campaign regulation; we’ve often cited its work and that of its founder, Brad Smith. [Lyle Denniston, SCOTUSBlog; Instapundit, citing “Supreme Court’s 1958 decision in NAACP v. Alabama, in which the Court unanimously protected the NAACP’s membership lists against compelled disclosure to Alabama officials.”]
19 Comments
AG Harris has gone and chosen the perfect facts here to make good law!
What could possibly be better than a non-partisan defender of the 1st Amd. As a plaintiff in a free speech & association case?
Slowly, but surely, we are losing our freedom in this country. That government officials would even consider this is appalling.
Simple – just store those records on Hillary’s email server.
Actually, there is a pretty easy way to avoid this: don’t become a 501(c)(3). If you do, you get tax exempt status, but there are some downsides, like having to reveal your donor list.
the NFL just changed from a non-profit to a for-profit entity. I suspect it was because the NFL did not want to subject itself to the requirements of the law for non-profits…
In that donating is a form of speech, are you really saying that the government has the right to know who has said what without any hint of illegality?
While you may think there is a simple (yet right trampling solution,) wouldn’t the better, more simple solution to follow the law as decided by the Supreme Court be the more appropriate route?
Or are you in favor of using public funds to prosecute and persecute people who have done nothing wrong?
No. No. No.
I believe one should be able to donate to whom one wants without government involvement. However, if one wants to take advantage of a government program, such as getting a tax deduction, one needs to follow the government’s rules. In this case, that means one’s identity can be revealed.
I believe the public has a right to know who is getting a public benefit (lower taxes). If you don’t like the rules, donate to an institution not incorporated under 501(c)(3). There are plenty of those around.
Free speech that one has to pay for?
I think you are looking at it backwards. You have the right to free speech, wihout payment. If you think I can pay you enough, you can give up the right. the same goes for the government.
The question is not whether you have free speech, but what you will take in exchange for giving up all or part of that right.
Allan, it’s sort of difficult to make donations “without government involvement” if donors “need to follow the government’s rules,” whatever they may be. Moreover, even if taking a tax deduction were “taking advantage of a government program,” donating to a 501(c)(3) in and of itself does not qualify, for the donation and deduction are two different things.
Oh by the way, anyone here take the standard deduction? You participated in a government program! Oh, I see, you itemized instead. Well, you participated by doing that. Paid taxes without taking any deductions at all? Sounds like you participated in the federal tax system, pal. Refused to pay any taxes at all? Your non-participation subjects you to the government’s rules then, too — welcome to jail. Can someone tell me where the choice to “take advantage of a government program” lies in all of this?
Actually, I look at it like this:
We all have to pay taxes. That is the baseline. Do your duty, government leaves you alone. Free speech, woohoo.
The government then says, we will pay you to give up some of your free speech rights. Want a tax deduction for donating to a non-profit? No problem, but don’t complain if we ask the non-profit to identify you. If the organization does not want to do so, then it can organize as a company and pay taxes like anyone else. Or they can organize in such a fashion that they do not have to pay taxes, but their donors do not get privacy. In other words, they are not paid to give up some of their privacy.
Your post makes it seems like we have both a right to free speech and a right to tax deductions. I think the former is correct, the latter is not.
Three follow up points.
1. There is no constitutional prohibition on making tax returns public, as far as I know. The prohibition is codified in the tax code. Perhaps that is a good politcal choice, perhaps not.
2. You seem to be arguing more for a right to privacy than a right to association. To the extent that there is a right to privacy in the constituion, it does not come from the first amendment exclusively. Instead, it falls under the “penumbra” doctrine from the prophalatic, abortion, and sodomy cases. I am not saying that one does not have a right to privacy in one’s donations under the constitution. I am just trying to get the argument into the right box, so to speak.
3. You might argue that the price the government is asking for you to give up your right to association is too low. You may be right, but the correct price is a political calculation. On the other hand, you might say that the government should be forbidden from paying people to give up their rights. I don’t think you are right there. The government does this all the time. For example, plea agreements…
Allan you are missing the point that the donation and deduction are separate transactions. Asking the recipient to disclosure a donor list is asking it to do so regardless of whether the donors took tax deductions. Your argument falls apart for that reason alone.
Allan,
The baseline is that we all have rights (including the right of free speech.) The “baseline” of taxes is to insure the protection of those rights (which is the purpose of government to begin with) and to do things that individuals cannot do themselves (such as roads, military, etc)
Your belief that the the government paying people to “give up some of your free speech rights” is predicated on the mistaken belief that the government can collect taxes or fees on the speech itself. The government should not be able to force me to “sell” a right. “The power to tax is the power to destroy” should awaken you to the idea that through taxes, the government can destroy a right.
Even if you aren’t persuaded by that standard, by law the Federal government and state governments cannot disclose the tax returns and tax information on individuals. Even if one buys into your arguments, the tax returns and the deductions a person takes are private information that cannot be disclosed. The AG asking for the names of donors is both an end run around the law as well as having a chilling effect on speech.
Once again, the government is to protect rights, not force people to buy them, sell them or do anything but maintain the ability to exercise those rights.
Oh really? So you think anyone who takes a deduction should have their tax form made public? Do you also think that someone should be able to make an anonymous donation if they take the tax hit instead of the deduction?
This would, in effect, be an anonymity tax, and I don’t see the purpose. In my world, organizations would be free to publish or not publish (or partially publish) their donor list, and people would be free to take the messages of those who did not publish them with a grain of salt.
It actually doesn’t. The information must be provided to the IRS so they can ensure someone’s not claiming a donation that the nonprofit never received (and at least that much is reasonable if you want a deduction), but by law the IRS is supposed to keep it secret. California wants this information… why?
I don’t know whether California wants the information. However, if it does, I don’t think there is a constitutional bar to them getting it. I do think there may be statutory bars. I am not taking a position on whether the statutory bars (or allowances) have merit.
Too low? No, it’s too high. I doubt many would complain if we were talking about $5.
David,
I think you misunderstood. What I meant is: “you may argue that the right to association is worth so much to you that the price the government is paying for you to abandon it is too low.”
You see it as a price the government is paying you to give up the right. I see it as a price I am paying the government to keep it. I think my view is more accurate – when it comes to income taxes, I’m paying the government, not the other way around (people with very low incomes might get money back, but those people are not itemizing donations.) And again, hardly anyone would complain if the price was $5. People care because the price is high for something that should be a right.
Um… what? Even if you didn’t read the court documents, surely you at least read the title of the post? What exactly do you think we are talking about here?
Sorry. “whether” should have been “why”.