Courthouse Steps Oral Argument Teleforum: Americans for Prosperity Foundation v. Becerra

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Nick Marr:  Welcome, everyone, to The Federalist Society Teleforum conference call as this afternoon, April 26, 2021, we're have a Courthouse Steps Oral Argument Teleforum. We reviewing arguments that were heard earlier this morning in a case called Americans for Prosperity Foundation v. Becerra. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society.

      As always, please note that expressions of opinion on our call today are those of our expert.

      We're very pleased to be joined this afternoon by Mr. Erik Jaffe. He's a partner at Schaerr Jaffe and appellate litigator, widely experienced. He's also the chair of our Free Speech and Election Law Practice Group. So we're very pleased to have Mr. Jaffe here today to review the case and discuss implications.

So with that, Erik, thanks for very much for being with us. The floor is yours.

Erik Jaffe:   All right. Well, thank you very much and thanks to The Federalist Society for sponsoring this. As everyone who's logged into this Teleforum undoubtedly knows, this morning there was arguments in Americans for Prosperity Foundation v.—it was Rodriquez. I think the name has now changed, but it was Becerra originally but anyway—v. California. Let's just leave it at that. The argument when quite well, though I suspect we will get a fairly narrow decision that, at the end of the day, will do about as much damage as it did good.

      Opening for AFP for the petitioners was a Derek Shaffer, who I thought did an excellent job and particularly had a masterful knowledge of the record so that he would routinely cite folks to particular parts of the record backing up his arguments, which I think was the strength of AFP's case in general is having a very well developed record, and did a very good job arguing for the position. He just ran into a lot of skepticism on a variety of aspects of his argument.

      I'll basically go through what I thought were the highlights of the different justices in the order in which they -- in order of seniority, so in the order that they ask questions, and point out what I think were the big issues that concerned them and that got their attention.

      Starting with the Chief Justice, he, right out of the box, starting expressing a concern with two things. One that struck me was he seemed worried the level of scrutiny and with an interest, it seemed to me, in keeping it as a watered down version of scrutiny, something that was not so aggressive as strict scrutiny, so asking about what's the difference between exacting scrutiny and strict scrutiny. So he focuses on is it strict scrutiny or is it exacting scrutiny.

      I thought the whole exercise was designed to guarantee that whatever level of scrutiny came out was weak enough to save things that the Court liked while strong enough to perhaps take care of this. So I think, in general, he may have been decently sympathetic to AFP at least on an as-applied basis and potentially even on a facial challenge basis. But it struck me that he didn't want to adopt a legal rule that would influence future cases, particularly in the context of campaign finance or perhaps by a similar challenge to the IRS Schedule B disclosure requirements.

      Following the Chief -- not following -- so the Chief did actually ask a number of questions that I thought were helpful to the petitioners. In particular, what did it take to show chill. He asks this lob question to the petitioner's counsel saying, "What could you possibly have shown more than you showed to show chill?" because AFP, of course, had shown threats, death threats, all kinds of consequences to association with AFP that you would think would be enough to show chill for their donors, and yet the other side doesn't think it was enough. And the Chief, I think more rhetorically than anything else, said, "What more could you have possibly shown?" So at least it says to me that he is sympathetic to the as-applied challenge, but he may not be so sympathetic to the facial challenge and more importantly is looking to keep the legal rules sufficiently narrow to not have a large future implication.

      Clarence Thomas, Justice Thomas came in, and his major concern across all of the questioners, all of the arguers, it seems to me, is what happens to donors who are associated with vilified groups. It's the advent of extreme vilification of groups. He gave examples of folks who are called racist, who are called white supremacist, that we have now moved on from disagreeing with people to vilifying them in a way that may make it impossible for folks to associate with them at all. That seemed to be his primary concern is what protection to you give to donors of groups that might be labeled fairly or unfairly in more extreme terms. That, of course, suggests to me that he's quite sympathetic to the petitioners and, in particular, maybe even sympathetic to a facial challenge that just sort of says anybody donating has to disclose.

      He did echo some concern with the IRS disclosure rules implicitly suggesting that perhaps those are okay, but how would one distinguish a regime in California that just mirrored the IRS rules. This is theme that came up elsewhere, and I think that's a fair question. You could see that the justices, Justice Thomas in particular and other justices generally, are both concerned with perhaps protecting IRS disclosure requirements, which has some different interests involved and perhaps different safeguards involved, but worry that California will then just adopt a rule that mirrored the IRS but perhaps not be quite a trustworthy as the federal government in protecting the information they got ahold of. So that was an interesting theme on his part, and that was a theme echoed throughout.

      Justice Breyer, not surprisingly, his questions reflected a greater concern for the government interests involved and a greater weight to the government interests involved, including things like deterrents. Part of the trouble with the record in this case, of course, is that California was incapable of showing that they actually used these mass disclosed forms for any meaningful purpose. So it was left to many of the amici, California's amici, to try to come up with a reason why mass disclose of your donors might be valuable even in the face of the ability to get more specific disclosure if you were actually investigating somebody.

      Justice Breyer took up the flag for that position and came up with a lot of reasons why perhaps the government had an interest in deterring people even if they never used the forms, etc., etc., and ultimately asked questions that suggested he wanted a balancing test, balancing the states interest in deterring fraud, the IRS's interest in enforcing the tax laws, or even the campaign finance situations. Ultimately, I think his most telling question was, "Isn't this just a stalking horse for campaign finance?" So in many ways, he was staking out the position and asking questions that staked out the position for why don't we just have a basic balancing test. If the government has an important interest and your interest in being scared isn't so big, too bad, so sad. I think in some ways that echoed a little bit of the Chief's concerns with not having too strict a level of scrutiny. I don't think the Chief would go as far as to the ad hoc balancing that Justice Breyer was implicitly suggesting, but certainly you can see a commonality of interest across those sets of questioning.

      Then we got to Justice Alito, next in the line of seniority, and he was far more sympathetic to the petitioner's position, especially in the as-applies context but perhaps in the facial context as well, asking what more could you possibly need to win an as-applied challenge than the death threats and attacks actually shown in this case and the actual leaked information in this case. He got some answers there, and obviously he's initially asking this of a sympathetic audience. He says, "Well, I don't know what else you would have had." But when he asks it to the other side, they keep saying, "Well, you know, it's case-by-case basis, and so if there was somebody who has a legitimate fear, they would be entitled to an exception." But of course, they wouldn't even admit that this plaintiff had a legitimate fear in the face of death threats to members and donors, so one wonders where, if ever, the exception would apply. That was exactly the question Justice Alito asks and said so that did California ever give an exception, and do they have to go to court every time. I think the short answer he got by the end of the argument was yes, they have to go to court every time, and even then, they'd probably lose. Though I don't think they said it quite as bluntly, that was plainly the answer.

      Given that those are the answers to his concerns, I imagine Justice Alito will, at a minimum, be pretty sympathetic to the as-applied challenge and may even go farther into a facial challenge, given that the regime here provides no meaningful protection other than having to go to court every time on individual one off basis for any nonprofit that was worried that its donors would run away, which while maybe not all of the nonprofits, it would certainly be quite a few of them.

      Then we get to Justice Sotomayor who, I thought, had a fairly balanced approach in terms of what she was signaling and concerned about. It wasn't necessarily all one way or the other. She, like the Chief, was concerned with not wanting to expand a narrow tailoring requirement or the least restrictive means requirement. So I think that we're seeing a theme of nobody saying strict scrutiny really would apply here, even though that was the position taken by the Thomas More Society -- Foundation or Society. I'm sorry I messed up their name. But I think AFP had taken a more balanced position that says even under somewhat more lenient, exacting scrutiny, as opposed to strict scrutiny, you still have to have some tailoring requirement. With Justice Sotomayor, she questioned exactly what degree of tailoring would that entail. It didn't have to be the least restrictive, but it couldn't be mothing, so but where do you come out in that, particularly with concern for other cases, past cases where any level of tailoring might have led to a difference result. The example she gives is the Doe case that involved verifying signatures on petitions for referenda which didn't seem to have whole lot of tailoring at all or at least just wasn't considered and discussed. She was quite concerned with that.

      She also seemed concerned with not giving adequate credit to the state's interest in this case in the sense of deterrents, much like Justice Breyer, deterrents or whether a direct audit led it to a particular target of interest might tip them off and they would somehow hide things. Even such simple concerns, state interest says, it just saves us time to have them all in a warehouse so we don't have to ask for them again. That of course is, from a Fourth Amendment perspective, quite troubling that one would credit such seemingly unlikely and unproven interests as a substantial state interest under a weakened version of scrutiny. But that certainly seemed to be where the point of the question was heading is that almost anything the state vomits on to a page counts as a substantial interest. Then we just engage in some degree of lesser or greater balancing and scrutiny as to whether or not they have tailored things enough with the key word there being balancing of the tailoring to the interest.

      I will say that she was -- where I was pleased with her questioning was she was quite sympathetic to the as-applied challenge that for whatever loose goosy rules might apply to overall challenges, she seemed rather sympathetic to the notion that the AFP in this instance has demonstrated the threat to them, had suggested that there was no adequate tailoring as to them, and so I could once again see a split baby decision that gives the as-applied challenge to AFP but on standards that few others will be able to satisfy in the future.

      Justice Kagan, I thought, had some interesting questions next, particularly targeted at going after the facial challenge. She sort of said what degree of burden in terms of how many instances does this law have to be burdensome in order to justify a facial challenge. What if most private organizations and their donors are perfectly happy to have their donors disclose because they're perfectly innocuous organizations that don’t care and, in fact, like having their donors disclosed and the donors like being disclosed because they like associating with those organizations. I assume you would think of things like the Red Cross or other places that are just sort of generic, do good kind of places, as opposed to controversial kind of places. She thought that alone might be enough to stop a facial challenge and force you into a private challenge.

      I thought petitioner had interesting answers to that and said that the level of facial challenge impact is only measured against those who would object, not those who would voluntarily comply, citing a City of Los Angeles case. I'll let the Court fight about that and worry about the subtleties of facial versus as-applied, but it seemed to me that she was pretty non-sympathetic to the facial challenge.

      On the as-applied challenged, she asked some interesting hypotheticals about what if it was less of a risk of public disclosure. Of course, California historically has done an appalling job of keeping the supposedly private information private. They claim to have improved their procedures. Of course their claims were that the regulations just codify the informal procedures that failed miserably in the past. But be that as it may, let's take California at its word that it will do better in the future than it has in the past. Justice Kagan, I thought interestingly, explored what degree of certainly of things staying private are needed before the fears of donors of public disclosure no longer weighed in the First Amendment balance.

      It looked to me that signaled a little bit of a forward looking path and less of a concern with what happened to this particular case than what would happen to future as-applied challengers once California could pass the laugh test of sure we'll keep your data private, of course we will. Nobody here but us chickens. Nobody will tell anyone, we promise, we promise, we promise. She seemed more sympathetic to giving California the benefit of the doubt on those things. As you can imagine given my sarcasm right now, I of course didn't find that terribly persuasive. Therefore, I think there's some chance that she would join the as-applied ruling in favor of AFP if that comes down but would not, certainly, be in favor of a facial challenge and my suspicion is even an as-applied challenge. Few future challengers would be able to satisfy the same level of leniency towards the state.

      Justice Gorsuch, once again as expected, was more sympathetic to the challenge, including to the facial challenges, and asking interesting questions about whether the right to private association or anonymous association was a standalone right or merely a derivative right designed to facilitate speech or other First Amendment activities. The answer he got from the petitioner was obviously it's a standalone right, and I think there was a repeated reference back to the brief by the Becket Fund making exactly this argument that it’s a standalone independent right and hence the burden would be direct rather than indirect. As you can imagine, the United States' amicus and California came in and said, no, it's merely a derivative right and that you have to weigh the burden of loss of privacy but that loss of privacy per se is not itself a violation. It's only a problem if it chills.

      Then we get to Justice Kavanaugh. I think a lot of his questions focused on how do you distinguish the IRS. How do you distinguish other instances and, to my mind, echoed a little the Chief's implicit concerns with not wanting a rule that reached too far. He again seemed somewhat sympathetic to the particulars of the case but more concerned with what rule one would lay down and how one would distinguish the IRS and whether California could roll in with an IRS-like scheme and be able to then get the same information. It wasn't a great signaling as to how he thought that played out at the end of the day, but his questions definitely focused on that issue that was troubling him, so I take that to signal that he doesn't want to dump the IRS or at least not prematurely dump the IRS disclosure requirements but was certainly more concerned with California's disclosure requirements.

      And finally, we get to Justice Barrett, Justice Coney Barrett, and I think, like Justice Gorsuch, was concerned with the nature of the right of association, was concerned that whatever test gets adopted here not collapse down to an interest balancing test. It called to mind the commentary in the Second Amendment cases and the Heller case in particular where for something to be a protected constitutional right can't just be an interest balancing, that ad hoc interest balancing is essentially useless. Her questions seemed to echo that same theme of if we adopt a random interest balancing of does the state have a good enough reason to infringe upon these concerns that that wouldn't be terribly protective. I thought that was the theme of her questions throughout a lot of it, but again, I took that to be somewhat sympathetic to a facial approach but more sympathetic to the as-applied approach.

      So that's the summary of the concerns and issues that I thought the different justices raised. A couple of things, I was particularly struck by the position of the United States in this case. It's of note because of course this is one of the few early cases where the Biden administration is weighing in orally. I think Ms. Prelogar, our acting associate general, Prelogar, I believe it is, she argues that this is -- I don't know if it's her maiden voyage as a acting SG or if there was an earlier one. I apologize for my not having looked it up. But she did a very good job. She's a very good advocate.

      I was just vaguely appalled by the position of the United States which was we agree the case should be vacated and remanded, but other than that we disagree with everything the petitioner said. It was one of those give with 1 hand, take with 50 hands. And so they wanted a remand for the Ninth Circuit to rule on the as-applied challenge and to see whether there was really a concern for donors being chilled. In the face of the record on hand, that seems laughable, and therefore one has to take it as a disingenuous suggestion that toss it back to the Ninth Circuit where we know what the Ninth Circuit's going to do about this. They're going to rule in favor of California, but at least we get to pretend we were on the side of free speech even though we know as-applied these folks are going to lose in the end. I found it a bit appalling that they wanted to pretend to be in favor of free speech but not actually.

      What the bulk of the U.S.'s argument was, it seemed to me, was how can we save campaign finance; how can we save IRS; how can we make the test as squishy as humanly possible while not admitting that we don't really care about the privacy of association. So all the suggestions were of the nature of well, privacy may be important in an individual case. It's really highly fact-bound; you'd have to see; we'd have to have evidence; we've have to have the individual as-applied entity prove to a reasonable degree that they really felt chilled. Then, and only then, if they prove that, we would have to weigh it against the state's interest which could be almost anything. The benefits that they claim -- we recognize all kinds of benefits that would outweigh even a proved burden on donor privacy and chill.

      So, welcome to campaign finance as the stalking horse. I think this was proving Justice Brayer's point that this case is a stalking horse for campaign finance for most of the advocates, certainly for most of the advocates other than, ironically, AFP, which went out of its way to try to distinguish campaign finances involving different concerns and different matters and just to win their case for charitable donors. AFP was the only one who was actually litigating the case at hand. Everyone else was litigating the case they all see coming down the line of campaign finance or perhaps the IRS disclosure forms. And there you have it. I thought the U.S. played its hand with that.

      As for California, nothing surprising there. They defended their law; they pretended that they had fixed their problems; they touted the district courts commending them for having improved upon their horrible track record of disclosing everyone's forms in the past, failing to note that the district court while commending them for the effort, it was like a participation award, "Good for you for trying, but it wasn't good enough," is the district court said, and California just quotes the good for you for trying part of that quote. So, while California did what it could and suggested that they had other interests, they were less compelling. I thought the U.S. ultimately probably did a better job of helping them to win, even though nominally the U.S. was not on their side than they did. And my apologies to the advocate because really she was stuck with a crummy record, and it wasn't her fault. She did what she could with what she had, and there you have it.

      So with that said, my overall sense of this is that on an as-applied challenge, I could see a substantial -- I could see an 8-1 or 7-2 to 9-0 vote in favor of petitioners on an as-applied challenge, though I would not be terribly surprised to see some 6-3 or worse peel off and suggest a remand of the as-applied challenge with some language suggesting that the probably ought to win, but let's leave it to Ninth Circuit. But I think ultimately the as-applied challenge wins. I'm having a very hard time counting to five on the facial challenge aspect of this law, though one could count Justice Alito, Justice Gorsuch, Justice Barrett, Justice Thomas as four. And then the question is whether or not Justice Kavanaugh or the Chief come on board thinking that forcing groups into repeated as-applied challenges is basically the death knell. I think it would be a pyrrhic victory much the way petitioner's counsel suggested it would be. AFP's been litigating this for seven years and look where they've gotten, and nobody else challenging a state disclosure requirement is likely to get further ahead on these repeated as-applied challenges.

      Maybe we peel off the Chief or Kavanaugh, but I think their concerns, their institutional and jurisprudential concerns might cause them to hesitate a bit, particularly if they can support an as-applied win that at least sets some rules or some ground rules about what future as-applied folks might have to show. If they can get some strong ground rules for the as-applied challenges in the future, maybe the answer is it won't be quite a pyrrhic as petitioner's counsel suspected it would be.

      With that said, I'm happy to open it up to questions and comments. If you're going to make a comment, I'd rather you keep it short and ultimately make it a question rather than extended discussion, but with that said, any questions I'm happy to entertain.

Nick Marr:  Thanks very much, Erik, and yes, we do encourage questions and really only questions, but we'll get there. Now we're going to open the floor for questions. And we already have one question in the queue, so we'll go to it.

Gregory Dolin:  Hi. This is Gregory Dolin from University of Baltimore. First of all, thank you so much for a very informative and lively presentation. My question goes towards what you started with. And I think was in the conversation throughout about this IRS disclosure as well as how it would play out with the states. Now IRS certainly has a much better record than California does when it comes to disclosure or rather non-disclosure of information. So I wonder like what if California has this disclosure requirement in their tax code, but for one reason or another, their tax authorities are less—how should I put it—professional in keeping private information in fact private. So basically, you have the same result, but the statute is in a different code, in a different section. So the questions I would have is how would the petitioners or their amici actually resolve that issue?

Erik Jaffe:  I think the position of the petitioners was several fold. One, they said look the IRS has different interests than the State of California, but assuming the argument of the State of California asked for this information to help enforce their own tax laws and limited the information they sought to entities that were taxed in California rather than entities all around the country that merely give donations to folks in California, if it was narrowed in all the ways that made sense, I think their answer would be in that instance there would at least be a state interest that was credible, unlike here, where California didn't have an interest that barely passed the laugh test according to AFP and, in my opinion, without their rights. So you would at least have a real scrutiny analysis going on given that the interest would be more substantial.

      Then, in terms of the professionalism or non-professionalism, I think everyone both petitioners and others would say it's really a matter of is there a reasonable fear that it's going to get out. So if the answer is the IRS has a pretty good track record of keeping your information a secret, then there's not that reasonable a fear that the information is going to get out or be misused. I would point out that the IRS, of course, has rules against giving that information out even within the federal government, much less publicly. You can't transfer it to other agencies just willy nilly. So it sort of mitigates the concern of political use of this information to attack your enemies.

      So if California had all that and could prove that they were pretty good at it, I imagine everyone would say and the result would be similar. Of course no one believes that California could ever manage to be that professional or ever manage to actually not use it for their own nefarious purposes, and so I suppose we would just have to have proof on that, and that would be the subject of a trial. Obviously, you can all tell from my sarcasm that I'm not sympathetic to California here. In fact, I had a brief in this case in support of petitioners, but you never know. You've got to give this to a trial judge and take evidence on it, and maybe one of these days California actually gets their act together and stops misusing access to information at the government level. It's possible. Never say never.

      So that's how I think they would handle it, and I think that would impact everyone else's analysis in the sense of they would want a more or less fact-bound determination of whether donors has a realistic and reasonable fear that the information was going to get disclosed or otherwise misused.

Gregory Dolin:  Thank you.

Erik Jaffe:  Do we have other questions?

Nick Marr:  Well, there's another -- I was just about to say. The floor is wide open. Erik, you must have done a great job reviewing. We've got about 70 people in the audience, but no takers so far.

Erik Jaffe:  Let's give people a chance think about questions. One of the things that I touched upon, but I wouldn't mind expanding upon a little bit is to give Becket the proper shout out. The Becket Fund's amicus brief got mentioned repeatedly in terms of the argument of whether or not the right to assemble includes the right to assemble privately and whether that is a standalone First Amendment right so that forcing disclosure isn't merely an indirect burden on the right to speech or association but is on its face a violation of or an infringement of a First Amendment right. I thought that was an interesting and fun debate to have, and one that was taken up, like I said, by a number of the justices, particularly Justice Gorsuch and Justice Barrett. And so kudos to Becket for going on this historical route to this. Kudos to petitioners for calling it out and endorsing it.

      I think it's important because I think one of the problems with NAACP v. Louisiana is that it did treat this as an indirect infringement on the right to association and therefore came up with what was ultimately viewed by many courts as a weaker standard of scrutiny, which is how you get to this squishy, it's not quite intermediate, but it's not quite strict, which therefore means we do what we feel like. And so it's a good debate to have. It's a debate that I imagine might catch Justice Thomas's attention as well given the historical basis for it. It deals with a recurring problem in free association cases which is the standards are just a bit squish. Invariably, when you have squishy standards like that, courts then decide whether they like the parties or don't like the parties and rule accordingly. So the NAACP rightfully wins in this situation, but the AFP wrongfully loses. I think that they both should win because I don't think there's any question that donors will face retribution if they're outed and that that chills donors or chills members in the NAACP case. That was an interesting debate. While I've jabbered on, do we have new questions?

Nick Marr:  We do, and actually a quick apology to our audience, my screen software had delayed. We actually have about six questions.

Erik Jaffe:  Well, let's get going.

Nick Marr:  We'll go to them one at a time, and we'll take them in order.

Caller 2:  Just a quick comment. It does seem like we might be heading to a new area where the Supreme Court's respect for the states isn't what is used to be at least when it comes to certain states like California. Beyond that thought, what I'm interested in is whether or not this is a stalking horse. If the idea that freedom of association and freedom to associate anonymously is a fundamental right, then I don't see how we have any disclosure requirements for political donations. And I guess that's where my question is. It seems like in the NAACP, the concern was violence and retribution outside speech. Here the retribution for AFP and these conservative organizations is actually more speech. They imbue more criticism, and that's what their donors are afraid of is greater speech and greater criticism. They're not afraid of violence as far as I've been able to tell, so I wanted to get some comments from the speaker on that.

Erik Jaffe:  Sure. I would just point out that if you read the record, the record shows actual death threats. The record shows lots of economic retaliation. It's not just speech. And you may not think that -- look, at least economic retaliation, I might be with you on the notion that that's called free association. And just because I don't want to do business with you because I think you're a heinous person and you're views are heinous and your associates are heinous, to me, that might fall into the category of free association. So it's not so much that. But as to the anonymity aspect of it, I think they're less worried about more speech because of course AFP itself is speaking and people can criticize AFP all they want. The real question's whether people attack you for donating money.

      But to the beginning part of your question, which is is it a stalking horse. Well, of course it's a stalking horse to some degree because if you don't recognize the right to private association at all, well, then the campaign finance cases go away because there's no interest on the other side. But recognizing that there is indeed a meaningful First Amendment right to privately associate doesn't end the inquiry. And I think the easy example of that is the Buckley case where Buckley in fact applied strict scrutiny to disclosure laws and found that they survived strict scrutiny in the campaign finance context precisely because of the corruption concerns and the indirect influence on candidate concerns. But remember, here we're not talking about influencing candidates. We're talking about charities who may influence public debate in some sense in terms of talking about public issues, but I don't think anyone imagines that this is holding some candidate in their pocket through some monetary tie which is what Buckley was more concerned about.

      So while it does certainly impact -- whatever rules or guidelines they set out here impacts this -- could influence campaign finance cases, it's not at all clear that it influences it quite as much as people suggest given Buckley's precedent of recognizing a right, recognizing strict scrutiny, and still upholding the law. It's only a matter of whether or not campaign finance laws can escape that level of scrutiny all together and then just have free rein to make everybody disclose everything, a la Senator Whitehouse, who would write down an enemies list and wait and see who contributed to them and presumably attack those folks and attack anyone they supported, say a judicial candidate, as he has done in the past. I think that's the bigger debate, but like I said, it wasn't a stalking horse as brought by AFP because AFP, the whole premise of their case was we're not campaign finance and you don't need to touch that with a 10-foot pole, and please don't because you can let us win on the normal, everyday grounds of First Amendment stuff that apply to us differently. There you have it. Next question.

Nick Marr:  Great. Go ahead with your question.

Caller 3:  I have a question of what of what would an as-applied decision in this case look like. Would it be based on the fact that California was derelict in releasing the information, or it would it be some subset of the charities that would not have to disclose this?

Erik Jaffe:  Well, it wouldn't be a subset of the charity. It would be AFP. I guess we still have the companion case of Thomas More, but AFP put in evidence about why they and their donors has a reasonable fear of retaliation and harassment, and they had evidence of it happening in the past to them. They had evidence of threats, and they had evidence of all kinds of retaliation. So they would just say, okay, as to you, AFP, this is the evidence you put in. That seems like it triggers the proper level of scrutiny, and there has to be some level of tailoring which we don't think was met in this case. Given the record in this case it would be a very specific ruling as to AFP.

      Obviously, it would set some guidelines or some precedent as to future challenges that looked a lot like this. And it would tell you implicitly what degree of evidence would get you over the hump, the same degree of evidence that AFP introduced. But no, I don't think it would automatically apply to other groups. I think other groups would have to then raise their hand and say we fear retaliation. California would have to then say too bad so sad. Disclose anyway. And then there'd be a lawsuit, and it would go from there.

      This is one of the concerns AFP raised in saying why the as-applied challenge alone would be enough because okay, so are all of these other organizations really going to bring lawsuits and can they afford to bring lawsuits and litigate for seven years. At the end of the day, what you're doing is ultimately imposing a financial penalty on them to have to come and sue in order protect donor privacy, which may be as much or greater than the loss of donors that they would face by just doing what California asked them to do. Hence the pyrrhic victory aspect of it. I think that's what an as-applied ruling would look like.

Nick Marr:  All right. Let's go to our next question now.

Caller 4:  Are there any briefs filed in this case referring to laws or regulations in other democracies, in terms of getting illustrative examples of how the court might finesse this issue?

Erik Jaffe:  No one that I know cited those briefs. I can't imagine that somebody didn't say that, but to be honest, I didn't read all the amicus briefs, and certainly it wasn't an argument anybody here in this argument chose to make about other democracies do this this way. Look, at this point, with five conservatives, you'd be spitting on their shoes to make that argument. Gee, England does it this way. Why don't we? Good way to lose an argument in terms of this Court. I think at this point, the only justice who might take such an argument even half seriously would be Justice Breyer. Nobody imagines that such precedent from countries that don't have comparable First Amendment regimes would much matter. England obviously has a much weaker First Amendment regime. Israel has sort of a common law-ish First Amendment regime. I'm not really sure where you would look to get a sufficient analogous protective place that said who cares if we scare off donors to charities.

      Remember in the campaign world, you night have a different argument about the need for public knowing about who's speaking in terms of campaigns, but in terms of charities -- and remember the interest here had nothing to do with public disclosure. The interest here was we want to enforce against potential fraud on the charities themselves because maybe their self-dealing and maybe there's something like that. This had nothing to do with the democratic arguments that get made of well, the public needs to know who's really speaking. This was not about that. This was explicitly not about that actually with California saying, "No, no, no we're never going to tell anybody about this, and we're not going to use it for those other purposes. We're only using it to make sure nobody's cheating the charity," and of course largely unable to come up with examples where this information had every paid a meaningful role in such law enforcement concerns.

Nick Marr:  Great. Let's go to our next question now. You have the floor.

Caller 5:  Hi. I'm calling from Minnesota. I'm from a nonprofit organization and thank you for sharing about this. I’m particularly concerned about what you say the applied decision would look like. I will tell you my thought is that other groups didn't sue because they didn't have the ability. I'm so curious that why Goldwater's concerns -- they've done some suing -- why the other -- so I 've got two questions. Why the other cases that went forward in some way on this issue weren't pulled in or references to why this should just be AFP? And then the other thing is just to say that we have actually had a donor who asked, "No one will see this information, right?" And I said, "Well, actually there are some states that are asking for it for anyone who gives over $5,000." So this donor gave us $4,999 to make sure, right. [cross talk 00:42:48] That's a real concern as soon as they know, but I would guess that most groups don't tell their donors that this is possible.

Erik Jaffe:  Well, there were a number of questions that actually had hypotheticals very much like your factual situation where they said, so what if a donor comes and says I’m willing to give to you, but only if you can promise me it's not going to be disclosed. The answer is well, we can't promise that. How could we possibly promise that because these different places are asking for it. So the Court was very aware of those situations.

      When I say that an as-applied ruling would only be in the particular context of AFP, recognize that it still creates precedent. It simply doesn't on its face dispose of these challenges by other groups like Goldwater or whoever. Those cases are still out there, and those cases would all be subject to whatever general statements of law and principles of law get laid down in the as-applied challenge. It's just they wouldn't automatically win. They would then have to go back to their courts, whatever court that they were in , and say okay, the implications of the ruling in the AFP case means I should win too because my evidence is just as good as theirs. The state interest on the other side is just as bad as California's because my donors have expressed a concern and have been chilled. They would just have to make the more granular showing as to them that they were entitled to the same result.

      So it's not that it wouldn't benefit all of those other groups that are out there, but it wouldn't benefit them in the same way that a facial challenge ruling would benefit them, assuming a facial ruling came out in favor of AFP. Then all of those cases would be resolved. There would be no further need for a lot of debate on the particulars of any given group. They would all probably win almost outright if they were even in the ballpark. So that's the difference between those two types of rulings and the implications of those two types of rulings is it takes an extra few steps for other groups to win. And quite candidly, many other groups may just not have the resources to litigate this further or to litigate this over and over. Those groups that have already started litigating it, good for them. They've made the cost benefit analysis and have chosen to litigate, but you can never guarantee that for all the other groups that might be impacted.

Caller 5:  Thank you.

Nick Marr:  Great. We'll go to our next question now. Go ahead and ask your question.

Caller 6:  Assuming that the reasons are -- I don't know whether the real reason is just to get information to prevent fraud or if there're other purposes involved, but two things you haven't talked about, and I don't know whether they came up at all in addition too. If things were released, in addition to the fear of retaliation, there are two other factors. One is some people want to donate anonymously so they don't get hounded by other people wanting money. And secondly, there is a pretty strong tradition, in at least somewhat religious thought not always, that giving should be done without any recognition because you're trying to give to help the cause, not to get personal recognition. Was that rule discussed at all, or what that factor discussed at all?

Erik Jaffe:  It was mentioned briefly by petitioner's counsel as additional reasons. But as a practical matter as the arguments that have played out, since California was not claiming interest in public disclosure and since California was promising to do better at actually stopping the leaks and hacks of their system so that there would be public disclosure, the motion of being harassed by future solicitors wasn't really in play since it's not like the California Department of Justice is going to solicit you for money. They're using it for law enforcement purposes and not publicizing it to others. The religious notion of not taking credit for it, I'm not sure really plays out if government just takes this information that you're disclosing to the IRS anyway so that there's already at least a universe larger than the charity itself that knows that you contributed. It's not like California is meaningfully different from the IRS in the sense of that religious objection. They are a government entity that is not seeing this information for the purposes of patting you on the back. They're doing it for the purposes of policing the charity.

      So it's not entirely clear how the religious objection would be realistically implicated in a meaningful way, and the I don't want other people to hounding on my door, again to the extent that California kept this private, it wouldn't come into play. So the debate was really more about can they realistically keep it private within the government or is it inevitably going to be leaked or is there a reasonable prospect of it being leaked. Once you shifted into the it's going to be leaked to the public view, well, then those secondary concerns are fine and are true, but the bigger concern is yeah and you're going to threaten to blow up my house and attack my kids. Those would be the far bigger concern from the justices' perspective and the don't hound me and I want to remain modest are thumbs on the scale, but thumbs on the scale of you're going to bomb my house. So I don't think they're going to end up playing much of a role though they were mentioned by the petitioner's counsel.

Nick Marr:  We'll go to our next question now.

Caller 7:  Yes, good afternoon. Thanks very much. Fascinating discussion. Two questions, one sort of constitutional and one practical. The constitutional one that I've heard discussions of well, the First Amendment discussion's about freedom of speech, freedom of association. I appreciate the refinement there about whether or not freedom of private association is implicated in there. I haven't heard any discussion about any constitutional privacy rights. I know that that's a fraught area, but there's something there presumably around the Fourth, Fifth Amendment area. I'm curious in particular the extent to which there are any constraints about administrative inquiries and the like versus a law enforcement inquiry. In fact, I think it's significant that must a moment ago in answering the prior question you did indicate that the purpose of this was law enforcement. So I'm wondering if there is any discussion or you see any potential implications for narrowing the scope of the government's ability to collect information which is ultimately used for law enforcement even if there's no immediate, clear probable cause implication.

      The second, more practical question is what this might mean for the mechanisms of donation. So instead of writing a check that can be traced back or making a wire transfer or something like that, I walk up to the Salvation Army kettle with a roll of thousands and stuff them into that little slot, or more practically maybe people start making donations though crypto or other less traceable means whether or not the petitioners, respondents or anyone else thought through those second and third order effects.

Erik Jaffe:  Both good questions. Let me take the second one first because I think it's quicker. The first one deserves a bigger answer. On the second one, I imagine that if you saw suddenly a shift to people dropping thousands into the Salvation Army bucket or anonymously mailing it to their favorite controversial group, there would quickly be government clamping down on that just because it looks awfully like money laundering. So I imagine you would soon see rules about how you can't take anonymous donations above a certain amount, including from crypto. They would just stop charities from doing that. If I had to guess, the homeland security-esque concerns of money laundering and funding bad groups would be enough to get Congress and states and probably the Supreme Court to say well, yeah, we have to be able to trace it eventually, even if you can’t force blanket disclosure at the front end. So in terms of the mechanism, I agree that's an interesting circumvention path, but I imagine it's one that would be shut down by legal means, ultimately shut down if it becomes a big problem.

      On the privacy questions, it's a fine point, and in fact petitioner's language in their arguments were wonderfully Fourth Amendment evocative in terms of California asking for disclosure of this information on a suspicionless basis. So you could just sort of hear all the beautiful Fourth Amendment language coming into play. But like with so many others that have crossed pollinated doctrines in the First Amendment, whether its equal protection or due process or, here, privacy, they mostly get dealt with in the context of the First Amendment rather than the other derivative amendments. But you could just as easily, you would imagine, bring a due process and equal protection of privacy claim pointing out that because the test under those rights should be heightened because it touches upon a critical areas of right. You think of due process, right. Due process it gets ratcheted up when it bears upon some other constitutional rights. Equal protection gets ratcheted up when it bears upon some other constitutional rights. But we mostly have just sort of cooked those in to First Amendment doctrine of being with. So half of the First Amendment doctrines viewpoint discrimination could just as easily be called equal protection.

      I think, similarly here, privacy has ultimately just been cooked into certain aspects of free association and it being treated as it’s a deterring problem. Because if you think of the Routh Amendment standing alone, I don't think anyone really thinks it provides very much protection. I understand that the prophylactic sweep of all the information has this suspicisionless data gathering problem to it. But everyone here agrees that if there was complaint about a charity, the State of California could issue an individualized subpoena to that charity demanding disclosure of its IRS forms and its donors, and that would be okay for a law enforcement purpose because it would have had a specific trigger. I don't think anyone challenged that, even implicitly on a Fourth Amendment grounds, because there would be a complaint because it's an entity that's soliciting from California folks because they would want to investigate this. That would be a sufficient suspicion to get at least some disclosure of records otherwise made available to the IRS.

      So I just don't see the Fourth -- the trouble is while the First Amendment is rapidly plummeting down the level of protection as we get all bent out of shape about free speech, the Fourth Amendment long ago got stomped on and the notion of a reasonable search all we need is to be reasonable and warrants get kicked out and probable cause become reasonable suspicion becomes you can do whatever you want at the border. I just don't see that the Fourth Amendment is really going to fill in for what is admittedly a somewhat weakened First Amendment in this context.

Nick Marr:  Great. We've got time for about one more question.

Erik Jaffe:  Yep. Do we have a last question?

Nick Marr:  We do.

Caller 8:  Hi. Thanks for a great presentation. Sorry, I joined late. If you already covered this. Could you just comment on who the advocates were who were presenting oral arguments today and the relative -- basically how you thought they did?

Erik Jaffe:  Derek Shaffer who's from Quinn Emanuel, he was on behalf of AFP for the petitioners. He did great, masterful knowledge of the record, and I thought very consistent in trying to distinguish this from campaign finance cases and from the IRS which was a big concern for a number of the justices. I thought General Prelogar on behalf of the United States' amicus having some argument time. I thought she argued quite well. I was appalled by the content of the United States position, but I thought as an advocate, she did quite well. It's just that the United States' position in this is a little horrifying from those of us who are on the strong First Amendment side of the world which I count myself.

      Then Ms. Fienberg -- give me a second. I wrote it down, so I'm sure I can tell you exactly. Yes, Ms. Feinberg, or maybe she's deputy attorney general, whatever, I'm sure I’m mangling her title. But she argued on behalf of California, and she did what she could with the facts in front of her. I thought the facts in front of her were pretty horrible, and I didn't think she was in a very strong position, though I thought as an advocate, again, she did what she could. It wasn't that much, and the bottom line, she came after the United States, and the United States bore the brunt of most of the questioning, so that by the time they got to her, it was a little less aggressive in my opinion.

      She stretched the record as much as she could stretch it given that the record was pretty bad for California. She tried to have a forward looking perspective on this which I think is smart form a state advocate's perspective of whatever flaws we had in the past, we're fixing it. So don't make a rule that doesn't let our fix survive even if you say our old version was lousy. I thought that's what -- look, it was a good path for a government advocate to take. I was obviously not impressed with the substance of some of her reasons for wanting this information, but that's a meritacy problem rather than an advocacy problem. You argue about what you're stuck with, and she did a good job arguing with what she was stuck with which was a pretty crummy record from California's perspective.

Caller 8:  Thank you.

Erik Jaffe:  [crosstalk 00:57:19] With that I would -- yeah. We have time for one more?

Nick Marr:  Go ahead, Erik.

Erik Jaffe:  I would just say that I -- like I said, I thought all the advocates did well. I thought all the justices had interesting questions that spoke to it. From my own legal and political and whatever perspective, I'm a little disappointed that it won't be a stronger First Amendment opinion coming out of this, I suspect. But one can take at least some solace from the fact that I think AFP will prevail ultimately on the as-applied portion of this. I'm less optimistic on the facial challenge.

Nick Marr:  All righty. Well, with that on behalf of The Federalist Society I want to thank you, Erik, for the benefit of your valuable time and expertise today. Erik actually did double duty. He just moderated a panel earlier today, so our thanks for the benefit of your time. Of course, thank you to the audience for calling in, for your great questions. Thanks for joining us for this review of these oral arguments heard earlier today. And just a reminder, we welcome your feedback by email at [email protected]. Also, check your email and our website for announcements about upcoming Teleforum calls covering Supreme Court decisions and oral arguments like this one and Zoom events. And with that, thanks for joining us. Until next time, we are adjourned. 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.