Center for Competitive Politic v. Kamala Harris , 784 F.3d 1307 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR COMPETITIVE POLITICS, No. 14-15978
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-00636-
MCE-DAD
KAMALA D. HARRIS, in her official
capacity as Attorney General of the
State of California, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted
December 8, 2014—San Francisco California
Filed May 1, 2015
Before: A. Wallace Tashima and Richard A. Paez, Circuit
Judges, and Gordon J. Quist, Senior District Judge.*
Opinion by Judge Paez
*
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
2 CTR. FOR COMPETITIVE POLITICS V. HARRIS
SUMMARY**
Civil Rights
The panel affirmed the district court’s denial of a
preliminary injunction in an action brought by the Center for
Competitive Politics under 42 U.S.C. § 1983 seeking to
enjoin the California Attorney General from requiring it to
disclose the names and contributions of the Center’s
“significant donors” on Internal Revenue Form 990 Schedule
B, which the Center must file with the state in order to
maintain its registered status with the state’s Registry of
Charitable Trusts.
The panel first rejected the Center’s contention that the
disclosure requirement was, in and of itself, injurious to the
Center and its supporters’ exercise of their First Amendment
rights to freedom of association. The panel held that the
chilling risk inherent in compelled disclosure triggered
exacting scrutiny. Under the exacting scrutiny’s balancing
test, the strength of the governmental interest must reflect the
seriousness of the actual burden on First Amendment right.
The panel held that the Center had not shown any “actual
burden” to itself or to its supporters. The panel determined
that the Center did not claim or produce evidence to suggest
that its significant donors would experience threats,
harassment, or other potentially chilling conduct as a result of
the Attorney General’s disclosure requirement. On the other
side of the scale, the panel held that the Attorney General has
a compelling interest in enforcing the laws of California and
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CTR. FOR COMPETITIVE POLITICS V. HARRIS 3
that the disclosure requirement bore a “substantial relation”
to the “sufficiently important” government interest of law
enforcement.
The panel also rejected the Center’s contention that the
disclosure requirement was preempted because Congress
intended to protect the privacy of the donor information of
non-profit organizations from all public disclosure when it
added 26 U.S.C. § 6104, part of the Pension Protection Act of
2006. The panel held that Section 6104 does not so clearly
manifest the purpose of Congress that the panel could infer
from it that Congress intended to bar state attorneys general
from requesting the information contained in Form 990,
Schedule B.
COUNSEL
Allen J. Dickerson (argued), Center for Competitive Politics,
Alexandria, Virginia; Alan Gura, Gura & Possessky, PLLC,
Alexandria, Virginia for Plaintiff-Appellant.
Kamala Harris, California Attorney General, Alexandra
Robert Gordon (argued), Deputy Attorney General, San
Francisco, California for Defendant-Appellee.
Joseph Vanderhulst, ActRight Legal Foundation, Plainfield,
Indiana, for Amici Curiae National Organization for
Marriage, Inc., and National Organization for Marriage
Educational Trust Fund.
Bradley Benbrook and Stephen Duvernay, Benbrook Law
Group, PC, Sacramento, California, for Amicus Curiae
Charles M. Watkins.
4 CTR. FOR COMPETITIVE POLITICS V. HARRIS
OPINION
PAEZ, Circuit Judge:
In order to solicit tax deductible contributions in
California, a non-profit corporation or other organization
must be registered with the state’s Registry of Charitable
Trusts. Cal. Gov. Code § 12585. To maintain its registered
status, an entity must file an annual report with the California
Attorney General’s Office, and must include IRS Form 990
Schedule B. The Internal Revenue Service (IRS) requires
non-profit educational or charitable organizations registered
under 24 U.S.C. § 501(c)(3) to disclose the names and
contributions of their “significant donors” (donors who have
contributed more than $5,000 in a single year) on Form 990
Schedule B. The Center for Competitive Politics (CCP), a
non-profit educational organization under § 501(c)(3), brings
this lawsuit under 42 U.S.C. § 1983, seeking to enjoin the
Attorney General from requiring it to file an unredacted Form
990 Schedule B. CCP argues that disclosure of its major
donors’ names violates the right of free association
guaranteed to CCP and its supporters by the First
Amendment.
CCP appeals the district court’s denial of CCP’s motion
for a preliminary injunction to prevent the Attorney General
from enforcing the disclosure requirement. We have
jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
CTR. FOR COMPETITIVE POLITICS V. HARRIS 5
I.
A.
CCP is a Virginia non-profit corporation, recognized by
the IRS as an educational organization under § 501(c)(3).
CCP’s “mission is to promote and defend the First
Amendment rights of free political speech, assembly,
association, and petition through research, education, and
strategic litigation.” CCP supports itself through financial
donations from contributors across the United States,
including California. CCP argues that the disclosure
requirement infringes its and its supporters’ First Amendment
right to freedom of association. CCP also argues that federal
law preempts California’s disclosure requirement.
Defendant Kamala Harris, the Attorney General of
California, is the chief law enforcement officer of the State of
California. See Cal. Const. art. 5, § 13. Furthermore, under
the Supervision of Trustees and Fundraisers for Charitable
Purposes Act (the Act), Cal. Gov’t Code § 12580 et seq., the
Attorney General also has primary responsibility to supervise
charitable trusts and public benefit corporations incorporated
in or conducting business in California, and to protect
charitable assets for their intended use. Cal. Gov’t Code
§§ 12598(a), 12581. The Act requires the Attorney General
to maintain a registry of charitable corporations and their
trustees and trusts, and authorizes the Attorney General to
obtain “whatever information, copies of instruments, reports,
and records are needed for the establishment and maintenance
of the register.” Cal. Gov’t Code § 12584.
An organization must maintain membership in the
registry in order to solicit funds from California residents.
6 CTR. FOR COMPETITIVE POLITICS V. HARRIS
Cal. Gov’t Code § 12585. The Act requires that corporations
file periodic written reports, and requires the Attorney
General to promulgate rules and regulations specifying both
the filing procedures and the contents of the reports. Cal.
Gov’t Code § 12586(b), Cal. Code Regs. tit. 11, § 300 et seq.
(2014). One of the regulations adopted by the Attorney
General requires that the periodic written reports include
Form 990.1 Cal. Code Regs. tit. 11, § 301 (2014). Although
many documents filed in the registry are open to public
inspection, see Cal. Code Regs. tit. 11, § 310, Form 990
Schedule B is confidential, accessible only to in-house staff
and handled separately from non-confidential documents.
The Attorney General argues that there is a compelling
law enforcement interest in the disclosure of the names of
significant donors. She argues that such information is
necessary to determine whether a charity is actually engaged
in a charitable purpose, or is instead violating California law
by engaging in self-dealing, improper loans, or other unfair
business practices. See Cal. Corp. Code §§ 5233, 5236, 5227.
At oral argument, counsel elaborated and provided an
example of how the Attorney General uses Form 990
Schedule B in order to enforce these laws: having significant
donor information allows the Attorney General to determine
when an organization has inflated its revenue by
overestimating the value of “in kind” donations. Knowing
the significant donor’s identity allows her to determine what
1
California is not alone in requiring charitable organizations to file an
unredacted Form 990 Schedule B. At least Hawaii, Mississippi, and
Kentucky share the same requirement. Haw. Rev. Stat. Ann. § 467B-6.5
(2014); Ky. Rev. Stat. Ann. §§ 367.650-.670 (2014); Miss. Code Ann.
§ 79-11-507 (2014). According to Amicus Charles Watkins, Florida and
New York also require unredacted versions of Form 990 Schedule B.
CTR. FOR COMPETITIVE POLITICS V. HARRIS 7
the “in kind” donation actually was, as well as its real value.
Thus, having the donor’s information immediately available
allows her to identify suspicious behavior. She also argues
that requiring unredacted versions of Form 990 Schedule B
increases her investigative efficiency and obviates the need
for expensive and burdensome audits.
B.
CCP has been a member of the registry since 2008. Since
its initial registration, CCP has filed redacted versions of
Form 990 Schedule B, omitting the names and addresses of
its donors. In 2014, for the first time, the Attorney General
required CCP to submit an unredacted Form 990 Schedule B.
In response to this demand, CCP filed suit, alleging that the
Attorney General’s requirement that CCP file an unredacted
Form 990 Schedule B amounted to a compelled disclosure of
its supporters’ identities that infringed CCP’s and its
supporters’ First Amendment rights to freedom of
association. CCP also alleged that a section of the Internal
Revenue Code, 26 U.S.C. § 6104, which restricts disclosure
of the information contained in Schedule B, preempted the
Attorney General’s requirement.
As noted above, the district court denied CCP’s motion
for a preliminary injunction, ruling that CCP was unlikely to
succeed on the merits of either of its claims, and that,
therefore, CCP could not show that it would suffer irreparable
harm or that the public interest weighed in favor of granting
the relief it requested. Ctr. for Competitive Politics v. Harris,
No. 2:14–cv–00636–MCE–DAD, 2014 WL 2002244 (E.D.
Cal. May 14, 2014).
8 CTR. FOR COMPETITIVE POLITICS V. HARRIS
II.
We review a district court’s ruling on a motion for
preliminary injunctive relief for abuse of discretion. See FTC
v. Enforma Natural Prods., 362 F.3d 1204, 1211-12 (9th Cir.
2004); Harris v. Bd. of Supervisors, L.A. Cnty., 366 F.3d 754,
760 (9th Cir. 2004). We review findings of fact for clear
error and conclusions of law de novo. See Indep. Living Ctr.
of S. Cal., Inc. v. Shewry, 543 F.3d 1050, 1055 (9th Cir.
2008). Our review of a denial of preliminary injunctive relief
must be “limited and deferential.” Harris, 366 F.3d at 760.
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. NRDC,
555 U.S. 7, 20 (2008). A preliminary injunction is “an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.” Id. at 22
(citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
Thus, CCP bears the heavy burden of making a “clear
showing” that it was entitled to a preliminary injunction.
We apply exacting scrutiny in the context of First
Amendment challenges to disclosure requirements.
“Disclaimer and disclosure requirements may burden the
ability to speak, but they . . . do not prevent anyone from
speaking.” Citizens United v. FEC, 558 U.S. 310, 366 (2010)
(internal citations and quotation marks omitted). Therefore,
courts have “subjected these requirements to ‘exacting
scrutiny,’ which requires a ‘substantial relation’ between the
disclosure requirement and a ‘sufficiently important’
governmental interest.” Id. at 366–67 (quoting Buckley v.
CTR. FOR COMPETITIVE POLITICS V. HARRIS 9
Valeo, 424 U.S. 1 (1976)).2 Exacting scrutiny encompasses
a balancing test. In 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.” John Doe No. 1, 561 U.S. at 196
(quoting Davis v. FEC, 554 U.S. 724, 744 (2008)) (emphasis
added).
III.
A.
CCP argues that the Attorney General’s disclosure
requirement is, in and of itself, injurious to CCP’s and its
supporters’ exercise of their First Amendment rights to
freedom of association. CCP further argues that the Attorney
General must have a compelling interest in the disclosure
requirement, and that the requirement must be narrowly
tailored in order to justify the First Amendment harm it
causes. This is a novel theory, but it is not supported by our
case law or by Supreme Court precedent.
In arguing that the disclosure requirement alone
constitutes significant First Amendment injury, CCP relies
2
Although most of the cases in which we and the Supreme Court have
applied exacting scrutiny arise in the electoral context, see John Doe No.
1 v. Reed, 561 U.S. 186, 196 (2010) (referring to long line of such
precedent), we have also applied the exacting scrutiny standard in the
context of a licensing regime. See Acorn Invs., Inc. v. City of Seattle,
887 F.2d 219 (9th Cir. 1989). Moreover, the foundational compelled
disclosure case, NAACP v. Ala. ex. rel. Patterson, arose outside the
electoral context. In that case, the NAACP challenged a discovery order
(arising out of a contempt proceeding) that would have forced it to reveal
its membership lists. 357 U.S. 449 (1958).
10 CTR. FOR COMPETITIVE POLITICS V. HARRIS
heavily on dicta in Buckley v. Valeo, in which the Supreme
Court stated that “compelled disclosure, in itself, can
seriously infringe on privacy of association and belief
guaranteed by the First Amendment.” 424 U.S. at 64.
Notably, the Court said “can” and not “always does.”
Furthermore, in making that statement, the Court cited a
series of Civil Rights Era as-applied cases in which the
NAACP challenged compelled disclosure of its members’
identities at a time when many NAACP members experienced
violence or serious threats of violence based on their
membership in that organization.3 Id. The Court went on to
explain that “[t]he strict test established by NAACP v.
Alabama is necessary because compelled disclosure has the
potential for substantially infringing the exercise of First
3
CCP also cites extensively to these cases; however, because all of them
are as-applied challenges involving the NAACP (which had demonstrated
that disclosure would harm its members), these cases are all inapposite:
Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539 (1963)
(holding that the NAACP was not required to comply with a subpoena and
disclose membership lists to a Florida state legislative committee
investigating communist activity); NAACP v. Button, 371 U.S. 415 (1963)
(upholding NAACP’s challenge to a Virginia statute barring the improper
solicitation of legal business, which the state had attempted to use to
prohibit the organization’s operation); Shelton v. Tucker, 364 U.S. 479
(1960) (striking down on First Amendment grounds an Arkansas statute
requiring public school teachers to disclose all organizations to which they
had belonged or contributed in the past five years); Bates v. Little Rock,
361 U.S. 516 (1960) (invalidating an Arkansas local ordinance requiring
disclosure of membership lists on First Amendment grounds as applied to
the NAACP, given the substantial record of the threats and harassment
that members of the organization would experience as a result of
disclosure); NAACP v. Alabama, 357 U.S. 449 (1958) (holding that the
NAACP was not required to comply with a discovery order requiring
disclosure of its membership lists). In Shelton, while the NAACP was not
a party, the primary plaintiff, Shelton, was a member of the NAACP.
364 U.S. at 484.
CTR. FOR COMPETITIVE POLITICS V. HARRIS 11
Amendment rights.” Id. at 66 (emphasis added). The most
logical conclusion to draw from these statements and their
context is that compelled disclosure, without any additional
harmful state action, can infringe First Amendment rights
when that disclosure leads to private discrimination against
those whose identities may be disclosed.
Of course, compelled disclosure can also infringe First
Amendment rights when the disclosure requirement is itself
a form of harassment intended to chill protected expression.
Such was the case in Acorn Investments, Inc. v. City of
Seattle, another opinion upon which CCP bases its theory that
compelled disclosure alone constitutes First Amendment
injury. In Acorn, the plaintiff brought a First Amendment
challenge to Seattle’s licensing fee scheme and its
concomitant requirement that panoram businesses disclose
the names and addresses of their shareholders. 887 F.2d at
220. Panorams, or “peep shows,” were a form of adult
entertainment business strongly associated with criminal
activity. Id. at 222–24. Seattle’s disclosure requirement
exclusively targeted the shareholders of panoram businesses,
and the only justification that the city advanced was
“accountability.” Id. at 226. The plaintiff argued that the
disclosure requirement was intended to chill its protected
expression, and, given the absence of any reasonable
justification for the ordinance, we held that it violated the
First Amendment. Id. In so holding, we found especially
instructive and cited as indistinguishable a Seventh Circuit
case, Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.
1980), in which “the court concluded that there could be ‘no
purpose other than harassment in requiring the individual . . .
stockholders to file separate statements or applications.’” Id.
(quoting Genusa, 619 F.3d at 1217). However, here, there is
no indication in the record that the Attorney General’s
12 CTR. FOR COMPETITIVE POLITICS V. HARRIS
disclosure requirement was adopted or is enforced in order to
harass members of the registry in general or CCP in
particular. Thus, the concern animating the holdings of
Acorn and Genusa does not apply here.
CCP is correct that the chilling risk inherent in compelled
disclosure triggers exacting scrutiny—“the strict test
established by NAACP v. Alabama,” Buckley, 424 U.S. at
66—and that, presented with a challenge to a disclosure
requirement, we must examine and balance the plaintiff’s
First Amendment injury against the government’s interest.
However, CCP is incorrect when it argues that the compelled
disclosure itself constitutes such an injury, and when it
suggests that we must weigh that injury when applying
exacting scrutiny. Instead, the Supreme Court has made it
clear that we must balance the “seriousness of the actual
burden” on a plaintiff’s First Amendment rights. John Doe
No. 1, 561 U.S. at 196 (emphasis added); Chula Vista
Citizens for Jobs & Fair Competition v. Norris, No.
12–55726, — F.3d —, 2015 WL 1499334, at *13 (9th Cir.
Apr. 3, 2015) (en banc) (applying this standard in evaluating
a First Amendment challenge to a disclosure requirement
under exacting scrutiny). Here, CCP has not shown any
“actual burden” on its freedom of association.
B.
CCP’s creative formulation, however, does affect the
scope of its challenge. In John Doe No. 1, signatories of a
referendum petition challenged the Washington Public
Records Act (PRA),4 which permitted public inspection of
such petitions. 561 U.S. at 191. The plaintiffs sought to
4
Wash. Rev. Code § 42.56001 et seq.
CTR. FOR COMPETITIVE POLITICS V. HARRIS 13
prevent the disclosure of the names of those who had signed
a referendum petition to challenge and put to a popular vote
a Washington state law that had extended benefits to same-
sex couples. Id. The complaint charged both that the PRA
was unconstitutional as to the referendum petition to overturn
the same-sex benefits law and as to referendum petitions
generally. Id. at 194. Thus, there was some dispute as to
whether their challenge was best construed as an as-applied
or as a facial challenge. Id. The Court explained that “[t]he
label is not what matters.” Id. Rather, because the
“plaintiffs’ claim and the relief that would follow . . .
reach[ed] beyond the particular circumstances of these
plaintiffs,” they were required to “satisfy our standards for a
facial challenge to the extent of that reach.” Id.
In formulating its claim such that the disclosure
requirement itself is the source of its alleged First
Amendment injury, CCP’s claim “is not limited to [its]
particular case, but challenges application of the law more
broadly to all [registry submissions].” Id. Were we to hold
that the disclosure requirement at issue here itself infringes
CCP’s First Amendment rights, then it would necessarily also
infringe the rights of all organizations subject to it. Even
though CCP only seeks to enjoin the Attorney General from
enforcing the disclosure requirement against itself, the
Attorney General would be hard-pressed to continue to
enforce an unconstitutional requirement against any other
member of the registry.5 Therefore, because “the relief that
would follow . . . reach[es] beyond the particular
circumstances of th[is] plaintif[f,] [CCP’s claim] must . . .
satisfy our standards for a facial challenge to the extent of
5
CCP conceded at oral argument that its challenge is best understood as
a facial challenge.
14 CTR. FOR COMPETITIVE POLITICS V. HARRIS
that reach.” Id. (citing United States v. Stevens, 559 U.S.
460, 472–73 (2010)).
“Which standard applies in a typical [facial challenge] is
a matter of dispute that we need not and do not address . . . .”
Stevens, 559 U.S. at 472. The Supreme Court has at different
times required plaintiffs bringing facial challenges to show
“that no set of circumstances exists under which [the
challenged law] would be valid,” United States v. Salerno,
481 U.S. 739, 745 (1987), or that it lacks any “plainly
legitimate sweep,” Washington v. Glucksberg, 521 U.S. 702,
740, n. 7 (1997) (Stevens, J., concurring) (internal quotation
marks omitted). Alternatively, in the First Amendment
context, the Court has sometimes employed a different
standard to evaluate facial overbreadth challenges, “whereby
a law may be invalidated as overbroad if ‘a substantial
number of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.’” Stevens,
559 U.S. at 473 (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449, n. 6 (2008)).
The least demanding of these standards is that of the First
Amendment facial overbreadth challenge. Because CCP
cannot show that the regulation fails exacting scrutiny in a
“substantial” number of cases, “judged in relation to [the
disclosure requirement’s] plainly legitimate sweep,” we need
not decide whether it could meet the more demanding
standards of Salerno and Glucksberg.
C.
Although not for the reasons that CCP posits, Buckley v.
Valeo is instructive for assessing CCP’s facial challenge. In
Buckley, the plaintiffs challenged the disclosure requirements
CTR. FOR COMPETITIVE POLITICS V. HARRIS 15
of the Federal Election Campaign Act6 as overbroad on two
grounds. 424 U.S. at 60–61. The first ground was that the
disclosure requirement applied to minor party members, such
as members of the Socialist Labor Party, who might face
harassment or threats as a result of the disclosure of their
names. Id. The plaintiffs sought a blanket exemption for
minor parties. The second ground of the Buckley plaintiffs’
challenge was that the thresholds triggering disclosure were
too low, because the requirement attached to any donation of
$100 or more (with additional reporting requirements to a
Committee, though not to the public, for donations over $10).
Id.
After applying exacting scrutiny, the Buckley Court
rejected the plaintiffs’ minor party challenge because “no
appellant [had] tendered record evidence of the sort proffered
in NAACP v. Alabama,” and so had failed to make the
“[r]equisite [f]actual [s]howing.” Id. at 69–71. Where the
record evidence constituted “[a]t best . . . the testimony of
several minor-party officials that one or two persons refused
to make contributions because of the possibility of disclosure
. . . the substantial public interest in disclosure identified by
the legislative history of this Act outweighs the harm
generally alleged.” Id. at 71–72. The Court, however, left
open the possibility that if a minor party plaintiff could show
“a reasonable probability that the compelled disclosure of a
party’s contributors’ names will subject them to threats,
harassment, or reprisals from either Government officials or
private parties,” then it could succeed on an as-applied
challenge. Id. at 74. Thus, even where, unlike here, the
plaintiffs adduced some evidence that their participation
6
Then codified at 2 U.S.C. § 431 et seq., now at 52 U.S.C. § 30101 et
seq.
16 CTR. FOR COMPETITIVE POLITICS V. HARRIS
would be chilled, the Buckley Court rejected a facial
challenge.
Further undermining CCP’s argument, the Buckley Court
also rejected the plaintiffs’ “contention, based on alleged
overbreadth, . . . that the monetary thresholds in the
record-keeping and reporting provisions lack[ed] a substantial
nexus with the claimed governmental interests, for the
amounts involved [were] too low.” Id. at 82. The Court
noted that they were “indeed low,” but concluded that it
“[could not] say, on this bare record, that the limits
designated [were] wholly without rationality,” because they
“serve[d] informational functions,” and “facilitate[d]
enforcement” of the contribution limits and disclosure
requirements. Id. at 83. Thus, the Buckley Court rejected the
plaintiffs’ overbreadth challenge both with respect to minor
parties and the donation thresholds.
Engaging in the same balancing that the Buckley Court
undertook, we examine the claims and interests the parties
assert here. In contrast to the Buckley plaintiffs, 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.7 CCP has not
demonstrated any “actual burden,” John Doe No. 1, 561 U.S.
at 196, on its or its supporters’ First Amendment rights. As
7
The minor parties in Buckley feared harassment because they
advocated unpopular positions. CCP has not alleged that its supporters
would face a similar backlash. However, amicus National Organization
for Marriage contends that, like the minor party donors and members in
Buckley, its significant donors could face retaliatory action if their names
were ever released to the public.
CTR. FOR COMPETITIVE POLITICS V. HARRIS 17
discussed supra, contrary to CCP’s contentions, no case has
ever held or implied that a disclosure requirement in and of
itself constitutes First Amendment injury.8
Furthermore, unlike in John Doe No. 1 or in other cases
requiring the disclosure of the names of petition signatories,
in this case, the disclosure would not be public. The Attorney
General keeps Form 990 Schedule B confidential. Although
it is certainly true that non-public disclosures can still chill
protected activity where a plaintiff fears the reprisals of a
government entity, CCP has not alleged any such fear here.
CCP instead argues that the Attorney General’s systems for
preserving confidentiality are not secure, and that its
significant donors’ names might be inadvertently accessed or
released. 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
8
Contrary to CCP’s contention, Talley v. California, 362 U.S. 60
(1960), is not such a case. In Talley, the Supreme Court struck down a
law that outlawed the distribution of hand-bills that did not identify their
authors. Id. at 64. In so doing, the Court did not explicitly apply exacting
scrutiny, though it cited NAACP v. Alabama and Bates. Id. at 65. The
basis for the Court’s holding was the historic, important role that
anonymous pamphleteering has had in furthering democratic ideals. Id.
at 64 (“There can be no doubt that such an identification requirement
would tend to restrict freedom to distribute information and thereby
freedom of expression . . . Anonymous pamphlets, leaflets, brochures and
even books have played an important role in the progress of mankind.”).
Thus, in that case, the Court was certain of the First Amendment harm that
the ordinance imposed.
18 CTR. FOR COMPETITIVE POLITICS V. HARRIS
confidential use would chill its donors’ participation.9 See
United States v. Harriss, 347 U.S. 612, 626 (1954).10
On the other side of the scale, as CCP concedes, the
Attorney General has a compelling interest in enforcing the
laws of California. CCP does not contest that the Attorney
General has the power to require disclosure of significant
donor information as a part of her general subpoena power.
Thus, the disclosure regulation has a “plainly legitimate
9
CCP also argues that only an informal policy prevents the Attorney
General from publishing the forms and requires her to take appropriate
measures to ensure the forms stay confidential. However, where a record
is exempt from public disclosure under federal law, as is Form 990
Schedule B, it is also exempt from public inspection under the California
Public Records Act. Cal. Gov’t Code § 6254(k) (2015). Thus, it appears
doubtful that the Attorney General would ever be required to make Form
990 Schedule B publicly available. Moreover, while the exemption under
§ 6254(k) is permissive, and not mandatory, Marken v. Santa Monica
Malibu Unified Sch. Dist., 136 Cal. Rptr. 3d 395, 405 (Ct. App. 2012),
where public disclosure is prohibited under state or federal law, the
responsible California agency is also prohibited from public disclosure.
See Cal. Gov’t Code § 6254(f) (“This section shall not prevent any agency
from opening its records concerning the administration of the agency to
public inspection, unless disclosure is otherwise prohibited by law.”). As
public disclosure (distinct from disclosure to the Attorney General) of
significant donor information is not authorized by federal law, it is likely
not authorized by California law, either. However, because CCP has not
provided any evidence that even public disclosure would chill the First
Amendment activities of its significant donors, the potential for a future
change in the Attorney General’s disclosure policy does not aid CCP in
making its facial challenge.
10
In Harriss, the Supreme Court rejected a First Amendment challenge
to an act imposing disclosure requirements on lobbyists, where plaintiffs
presented “[h]ypothetical borderline situations” where speech might be
chilled, because “[t]he hazard of such restraint is too remote” to require
striking down an otherwise valid statute.
CTR. FOR COMPETITIVE POLITICS V. HARRIS 19
sweep.” Stevens, 559 U.S. at 473. CCP argues instead that
the disclosure requirement does not bear a substantial enough
relationship to the interest that the Attorney General has
asserted in the disclosure, and that the Attorney General
should be permitted only to demand the names of significant
donors if she issues a subpoena. CCP’s argument that the
disclosure requirement exceeds the scope of the Attorney
General’s subpoena power is similar to the Buckley plaintiffs’
argument that the low monetary thresholds exceeded the
scope of Congress’s legitimate regulation.
Like the Buckley Court, we reject this argument,
especially in the context of a facial challenge. The Attorney
General has provided justifications for employing a
disclosure requirement instead of issuing subpoenas. She
argues that having immediate access to Form 990 Schedule
B increases her investigative efficiency, and that reviewing
significant donor information can flag suspicious activity.
The reasons that the Attorney General has asserted for the
disclosure requirement, unlike those the City of Seattle put
forth in Acorn, are not “wholly without rationality.” See
Buckley, 424 U.S. at 83. Faced with the Attorney General’s
“unrebutted arguments that only modest burdens attend the
disclosure of a typical [Form 990 Schedule B],” we reject
CCP’s “broad challenge,” John Doe No. 1, 561 U.S. at 201.
We conclude that the disclosure requirement bears a
“substantial relation” to a “sufficiently important”
government interest. See Citizens United, 558 U.S. at 366
(internal citations omitted).
However, as the Supreme Court did in Buckley and John
Doe No. 1, we leave open the possibility that CCP could show
“a reasonable probability that the compelled disclosure of
[its] contributors’ names will subject them to threats,
20 CTR. FOR COMPETITIVE POLITICS V. HARRIS
harassment, or reprisals from either Government officials or
private parties” that would warrant relief on an as-applied
challenge. See McConnell v. FEC, 540 U.S. 93, 199 (2003)
(rejecting a facial challenge, but leaving open the possibility
of a future as-applied challenge).
In sum, CCP’s First Amendment facial challenge to the
Attorney General’s disclosure requirement fails exacting
scrutiny.
IV.
CCP also contends that federal tax law preempts the
Attorney General’s disclosure requirement. CCP argues that
Congress intended to protect the privacy of the donor
information of non-profit organizations from all public
disclosure when it added 26 U.S.C. § 6104, part of the
Pension Protection Act of 2006, and that, therefore,
permitting state attorneys general to require this information
from non-profit organizations registered under § 501(c)(3)
would conflict with that purpose. CCP’s argument is
unavailing.
Federal law is supreme and Congress can certainly
preempt a state’s authority. However, principles of
federalism dictate that we employ a strong presumption
against preemption. Arizona v. United States, 132 S. Ct.
2492, 2500 (2012). Therefore, federal law will only preempt
state law if such preemption was “the clear and manifest
purpose of Congress.” Id. at 2501. Congress can express that
intent explicitly, or the intent can be inferred when a state law
irreconcilably conflicts with a federal law. Id. Alternatively,
“the intent to displace state law altogether can be inferred”
when the federal government has established a legislative
CTR. FOR COMPETITIVE POLITICS V. HARRIS 21
framework “so pervasive that Congress left no room for states
to supplement it.” Id. (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)). A state law can be in
conflict with a federal law when the state law “stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Id.; see also Barnett
Bank of Marion Cnty. N.A. v. Nelson, 517 U.S. 25, 31 (1996)
(holding that such an obstacle can arise even where the two
laws are not directly in conflict).
CCP argues that 26 U.S.C. § 6104(c)(3) expressly
preempts the Attorney General’s disclosure requirement.
That section provides:
Upon written request by an appropriate State
officer, the Secretary 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.
(emphasis added). CCP reads this language to ban the
Secretary from sharing the tax information of § 501(c)(3)
organizations with state attorneys general. The language is
better construed as a limited grant of authority than as a
prohibition. However, even if CCP’s reading were accurate,
a statute restricting the disclosures that the Commissioner of
the IRS may make does not expressly preempt the authority
of state attorneys general to require such disclosures directly
22 CTR. FOR COMPETITIVE POLITICS V. HARRIS
from the non-profit organizations they are tasked with
regulating.
CCP further argues that the Attorney General’s disclosure
requirement conflicts with the purpose of § 6104, but neither
of the two subsections of § 6104 upon which CCP relies can
support its argument. Neither subsection indicates that
Congress sought to regulate states’ access to this information
for the purposes of enforcing their laws, or that Congress
sought to regulate the actions of any entity other than the IRS.
The first subsection allows for the public availability of the
tax returns of certain organizations and trusts, but goes on to
qualify that “[n]othing in this subsection shall authorize the
Secretary to disclose the name or address of any contributor
to any organization or trust.” 26 U.S.C. § 6104(b) (emphasis
added). The second subsection lays out disclosure
requirements for § 501(c)(3) organizations generally, and
then provides an exception to those requirements, such that
they “shall not require the disclosure of the name or address
of any contributor to the organization.” Id. § 6104(d)(3)(A).
These subsections may support an argument that
Congress sought to regulate the disclosures that the IRS may
make, but they do not broadly prohibit other government
entities from seeking that information directly from the
organization. Nor do they create a pervasive scheme of
privacy protections. Rather, these subsections represent
exceptions to a general rule of disclosure. Thus, these
subsections do not so clearly manifest the purpose of
Congress that we could infer from them that Congress
intended to bar state attorneys general from requesting the
information contained in Form 990 Schedule B from entities
like CCP.
CTR. FOR COMPETITIVE POLITICS V. HARRIS 23
The district court relied on our opinion in Stokwitz v.
United States, 831 F.2d 893 (9th Cir. 1987), in holding that
CCP was unlikely to succeed on its preemption argument. In
that case, an attorney for the U.S. Navy was charged with
misconduct and his personal tax returns were seized. Id. at
893. He argued that 26 U.S.C. § 6103, regulating public
disclosure of such documents, forbade their use in the
proceedings against him. Id. at 894. We disagreed:
“[c]ontrary to appellant’s contention, there is no indication in
either the language of section 6103 or its legislative history
that Congress intended to enact a general prohibition against
public disclosure of tax information.” Id. at 896. Instead, the
legislative history of the section revealed that “Congress’s
overriding purpose was to curtail loose disclosure practices
by the IRS.” Id. at 894. Here, since nothing in the legislative
history of § 6104 suggested that its purpose was in any way
different from that of § 6103, the district court concluded that
the Attorney General’s disclosure requirement was likewise
not preempted.
While CCP is correct that Congress added § 6104 thirty
years after § 6103, and that, therefore, Congress’s intent may
have differed, our opinion in Stokwitz is nevertheless
instructive. The very legislative history to which CCP directs
us describes the operation of sections 6103 and 6104 in
tandem. See Staff of the Joint Committtee on Taxation, 109th
Cong., Technical Explanation of H.R. 4, the “Pension
Protection Act of 2006” at 327–29 (Comm. Print 2006).
Nothing in the legislative history suggests that Congress
sought to extend the regulatory scheme it imposed on the IRS
with § 6103 to other entities when it added § 6104.
Moreover, when two sections operate together, and when
Congress clearly sought to regulate the actions of a particular
entity with one section, it is not unreasonable to infer that
24 CTR. FOR COMPETITIVE POLITICS V. HARRIS
Congress sought to regulate the same entity with the other.
Therefore, Stokwitz supports our conclusion that § 6104, like
§ 6103, is intended to regulate the IRS, and not to ban all
means of accessing donor information.
Section 6104 does not so clearly manifest the purpose of
Congress that we could infer from it that Congress intended
to bar state attorneys general from requesting the information
contained in Form 990 Schedule B. See Arizona, 132 S. Ct. at
2501. CCP’s preemption claim must fail.
V.
In order to prevail on a motion for a preliminary
injunction, a plaintiff must show a likelihood of success on
the merits and that irreparable harm is not only possible, but
likely, in the absence of injunctive relief. Winter, 555 U.S. at
20. CCP has not shown a likelihood of success on the merits.
Because it is not likely that the Attorney General’s disclosure
requirement injures CCP’s First Amendment rights, or that it
is preempted by federal law, it is not likely that CCP will
suffer irreparable harm from enforcement of the requirement.
Thus, CCP cannot meet the standard established by Winter.
For the foregoing reasons, the district court’s denial of
CCP’s motion for a preliminary injunction is AFFIRMED.