There’s an intriguing, underappreciated aspect to the constitutional issues before the Supreme Court in this case, which involves California’s requirement that certain charitable organizations which fundraise in the state file non-public forms with the Attorney General’s office that include disclosure of the identities of substantial contributors. 

If these forms remained confidential with the AG’s office, as they are supposed to be under CA law, there would not be much risk that contributors to controversial organizations would be harassed, retaliated against, or chilled from donating.  But a key fact is that CA has a bad track record of inadvertently publicly disclosing some of these forms; state employees posted over 1,800 of them online.  The state now asserts it has instituted new protocols that will ensure the confidentiality of these forms going forward.  Understandably, there are questions about how much confidence anyone should have that these new protocols will be fully effective.  But even if they are, petitioners contend that CA’s track record of exposing contributors will still exercise a chilling effect on future donors.

CA’s law is being challenged both on its face and as-applied.  If the law is upheld on its face, CA could still impose the filing requirement, but individual charities could argue that their donors, in particular, face a reasonable probability of harassment, retaliation, and the like – and that the law is therefore unconstitutional as applied to them.  I want to focus on the as-applied issue (though my point will ultimately apply to the facial challenge as well).

Normally, an as-applied challenge means that the way a general law applies to the particular circumstances of an individual or group makes that law unconstitutional with respect to that person or group.  But here, it would be the combination of California’s inability to follow its own law and rules¸ along with the specific vulnerability of particular charities, that would make the law unconstitutional as applied to that charity.  That’s the interesting twist:  I cannot recall a case (maybe others can) in which a state law or policy is unconstitutional as-applied because the state’s track record means the state cannot be assumed to adhere to its own policies. 

Again, if CA could be trusted to keep these non-public forms actually non-public, the risk that AFP’s donors would be harassed would be extremely low.  Put another way:  if this case came from a state that required these forms but which had never publicly disclosed any of the information on those forms, would an as-applied challenge succeed?

This aspect of the case does also potentially affect certain versions of the facial challenge.  Thus, the ACLU argues that the law should be treated as a “de facto” public-disclosure requirement, given CA’s history of incompetent disclosure, and struck down on its face partly for that reason:  “But in light of California’s record of inadvertently publicizing these sensitive documents, its demand should be treated as a de facto public-disclosure requirement, triggering a more stringent form of exacting scrutiny. The record in this case discloses a disturbing pattern of failures to keep the forms confidential.”

 The intriguing aspect to all this is that the Court is being asked to take an “institutionally realist” view of California’s executive branch.  Even though CA officials are not supposed to leak these forms to the public, and are even prohibited by law from doing so, the reality is that they have demonstrated over and over again a failure to follow their own law and protocols.  Normally, courts assume a “presumption of regularity” to the conduct of government.  Thus, this case implicates, in my terms, the tension in constitutional law between the Court taking a more “realist” or more “formalist” stance toward public institutions — in this case, toward CA’s executive branch.  In a more formal stance, the Court would say CA law requires these forms to be kept confidential and we decide the case on that basis.  But from the oral argument, it appears the Justices are likely to assess CA’s law against the reality of how its government actually functions (or malfunctions).

 In the major precedents on disclosure and the First Amendment, the risk of retaliation did not result from the government failing to follow its own laws.  In NAACP v. Alabama and the Gremillion case, the forms were meant to be publicly disclosed.  In Shelton v. Tucker, the state could fire teachers at will, which is what made the disclosure laws unconstitutional there.

In the AFP case, petitioners do offer one theory that would strike down the CA law whether or not the state had a clean track record; the argument is that the state does not have a strong enough interest to require these forms in the first place.  But if AFP wins, either in the Supreme Court or on remand, based in part on CA’s record of incompetence, that will reflect the courts deciding to take an institutionally realist view of state government.