The Ninth Circuit recently held that Center for Competitive Politics had to turn over its list of donors to the California Attorney General’s office for law enforcement purposes. Even though the lists are not publicly disclosed, CCP argued that doing so infringed on its members’ constitutional rights. CCP tried to get this order reversed by the Supreme Court but the Supreme Court declined to take up the case.
Now Americans for Prosperity (a key Koch Brothers organization) and the Thomas More Law Society argued that under the CCP case, they should be entitled to an exemption from disclosure of their donor records to the CA Attorney General on grounds that the First Amendment requires an exemption from disclosure when disclosure could raise the risk of harassment of donors. On this basis, a federal district judge (Judge Manny Real, a quite controversial district court judge) issued a preliminary injunction barring the CA AG from collecting these groups’ donor data on grounds these groups’ donors reasonably faced harassment.
Yesterday an Ninth Circuit panel (Reinhardt, Fisher, Nguyen) unanimously reversed in part, ruling that the district court abused its discretion in holding there was a reasonable threat of harassment of these groups donors on this record. It kept in place, however, an injunction barring public release of this information. The CA AG has said her office won’t be disclosing this information, and there is a pending regulation to this effect. The Ninth Circuit said that the injunction barring the public disclosure then furthered California’s public policy.
This seems like the right result. The claims of harassment of contributors to conservatives causes have turned out to be greatly exaggerated. I explore this most recently in Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 Journal of Law and Politics 557 (2012).