Schuette backs conservative group in donor disclosure fight

Jonathan Oosting
Detroit News Lansing Bureau
Michigan Attorney General Bill Schuette, Republican

Lansing — Michigan Attorney General Bill Schuette is helping defend Americans for Prosperity in California, where the influential conservative group is fighting an attempt to force its foundation to share donor information with that state.

Schuette and five other Republican state attorneys general last year filed a legal brief with the Ninth District U.S. Court of Appeals, which heard oral arguments in the case last week.

Then-California Attorney General Kamala Harris, a Democrat now serving in the U.S. Senate, required the Americans for Prosperity Foundation to disclose donors to the state in 2013. The nonprofit linked to billionaire brothers Charles and David Koch refused and sued the state.

Most states do not require nonprofits to disclose donors, and doing so “without first establishing any particularized suspicion of any wrongdoing by the Foundation, the California Attorney General chilled the associational rights of the Foundation’s members,” said the brief filed by Arizona Attorney General Mark Brnovich and joined by Schuette.

California has said it does not intend to make the Americans for Prosperity donor list public but wants to collect information for law enforcement and oversight purposes. A district court judge that sided with the foundation on First Amendment grounds noted California had inadvertently disclosed similar donors lists on a public website in the past, a breach the state attributed to a faulty software system.

The Americans for Prosperity Foundation is a public charity that says it works to educate and train citizens to be “advocates for freedom” at the local, state and federal levels. It operates a separate 501(c)4 social welfare organization that is more politically active with television ads and other independent expenditures.

AFP is running TV ads in Michigan attacking gubernatorial candidate Gretchen Whitmer, a Democrat. Schuette is also running for governor and is leading public opinion polls of the Republican field.

Americans for Prosperity this month filed an independent expenditure report to the state showing it spent more than $1.7 million on an anti-Whitmer ad campaign beginning June 13. In May, the group reported spending $311,531.50 on television ads and more than $162,000 on mailers criticizing Whitmer.

In the California donor disclosure case, Schuette and the five other GOP attorneys general noted they oversee non-profits as the chief law enforcement officers in their respective states.

While they have an interest in “deterring and prosecuting fraud,” the attorneys general wrote that they also have a “vital interest in protecting their citizens’ First Amendment right of freedom of association against unconstitutional interference." 

Collecting names and addresses of donors to the Americans for Prosperity Foundation “increases the possibility that unscrupulous public officials could target donors for various kinds of retaliatory actions,” they wrote.

“Even if the names of significant donors are never released to the public — intentionally or unintentionally — government officials might use the donor information to single out their political opponents for retribution.”

California Deputy Attorney General Alexandra Robert Gorden disputed similar claims in court last week, noting that the Americans for Prosperity Foundation is already required to file non-public “Schedule B” donor disclosure lists to the U.S. Internal Revenue Service.

The foundation “has produced absolutely no evidence of any harm coming to it from that disclosure,” Gordon told a three-judge appeals court panel in oral arguments.

Americans for Prosperity attorney Derek Schaffer argued that disclosing the group’s donor list would have “no genuine utility for law enforcement” and told judges California’s confidentiality assurances “have been exposed as hollow and false.”

“The chills and harms and threats faced by Americans for Prosperity Foundation and its supporters are in fact real, and they’re concerning,” he said. “That’s why we’re here.”

Asked about Schuette's involvement in the California case, spokeswoman Andrea Bitely said his office typically reviews draft filings from other state attorneys general to determine if there is any relation to Michigan or other cases Schuette has argued. 

The review is primarily handled by "our solicitor general team with input from line assistant attorneys general when needed," she said. The time spent on each brief varies by the amount of research needed to determine connections to Michigan," she said. 

The Americans for Prosperity Foundation case is "about the First Amendment, freedom of speech and the right to privacy," Bitely said. Schuette "has a vested interest in making sure that all Americans have the right to both."

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Twitter: @jonathanoosting