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Re-litigating history: federal court decision puts donors in danger, ignores violent past.

Historians have lectured that the U.S. Constitution is a living, breathing document. It is flexible enough to have been amended 33 times in efforts to expand the protections for life, liberty and the pursuit of happiness. Above all, protection of liberty was paramount to the authors.

It appears that the federal courts and a few state attorneys general are trying to suffocate at least four of those amendments --freedom of speech in the First Amendment, protection versus search and seizure without a warrant signed by a judge in the Fourth Amendment, and due process granted via the Fifth and Fourteenth Amendments.

Decades of law and advocacy were trampled upon when the U.S. Court of Appeals for the 9th District backed the California attorney general's gambit to seize donor lists administratively and then the Supreme Court of the United States denied an emergency injunctive relief.

Every nonprofit leader whose organization fundraises and advocates should have their attorneys on speed dial.

As reported in The Nonprofit Times, the justices of the 9th District denied a preliminary injunction to the Center for Competitive Politics (CCP). The organization was taking on California Attorney General Kamala Harris and the state's requirement for filing an unredacted Schedule B for the Form 990, disclosing significant donors. The 29-page ruling affirmed an earlier decision by the U.S. District Court for the Eastern District of California.

Nonprofits soliciting in California must register with the state's Registry of Charitable Trusts, within the Attorney General's Office. The Schedule B identifies donors who contributed more than $5,000 in a single year. That is considered confidential under federal law.

However, the state wants the information. State documents are public records and can be subpoenaed. The documents might even be subject to Freedom of Information requests--depending on the judge. The state demanding the information administratively circumvents the Fourth Amendment against search and seizure of documents without probable cause. It also can be a Fourteenth Amendment argument of denying due process.

Harris using administrative subpoenas to demand documents without a warrant signed by a judge ignores all past case law on charities and donors. It damages a donor's First Amendment right to free speech and being able to donate to expand the reach of organizations.

Harris claims the information on significant donors gives her office the chance to identify suspicious behavior. If she thinks there is a problem she should go to a court and get a warrant. Trolling through confidential material hoping to spot something is not the best use of time.

Attorneys general need to be reminded of the decision in National Association for the Advancement of Colored People v. Alabama, a civil rights case brought before the U.S. Supreme Court. Alabama issued a subpoena for various records, including the NAACP's membership lists. The Supreme Court ruled that Alabama's demand for the lists had violated the right of due process guaranteed by the Fourteenth Amendment to the United States Constitution.

Allowing the state and federal courts to re-litigate civil rights issues endangers the foundation of the charitable sector. Leaders from civic, health and civil rights organizations should be ready to file amicus briefs supporting CCP as soon as it files its next appeal. This will end up in the U.S. Supreme Court, even though Justice Anthony Kennedy denied "without prejudice," CCP's attempt for injunctive relief.

These are dangerous times for the rights contained in the U.S. Constitution, whether its surveillance of cell phones by the National Security Agency or tracking of website visits or regulators wanting to dip their toes in shallow ethical waters before diving in. These so-called administrative subpoenas are the dipping of the toe.

Regulations can't trump law. It's time regulators felt the full leverage and power of the nonprofit sector.
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Author:Clolery, Paul
Publication:The Non-profit Times
Geographic Code:1USA
Date:Jun 1, 2015
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