Essential Politics: Kamala Harris’ past comes back with a Supreme Court ruling
This is the July 21, 2021, edition of the Essential Politics newsletter. Like what you’re reading? Sign up to get it in your inbox.
Vice President Kamala Harris was hit by an unpleasant blast from her political past this month when the Supreme Court decided a case that originated when she was attorney general of California.
The court‘s six Republican-appointed justices ruled against the state in favor of a group founded by conservative donors Charles and David Koch called the Americans for Prosperity Foundation. The foundation, along with another conservative group called the Thomas More Law Center, sued the attorney general for enforcing a state law requiring them to disclose to the office the names of their biggest donors, an obligation for nonprofit groups that was intended to thwart fraud.
The ruling has an immediate effect on charitable donors who want to keep their identities hidden from state authorities, though the IRS still requires disclosure. Some campaign ethics watchdogs believe the high court’s decision could eventually upend rules that require big donors to disclose their political giving to the public.
Good morning and welcome to Essential Politics, Kamala Harris edition. This morning, I will explain Harris’ role and, with the help of longtime Supreme Court reporter David G. Savage, delve a bit deeper into the implications of the court’s decision to bar California and other states from collecting the names of charitable donors.
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A rare confluence
It’s an unusual, if not unprecedented, situation for a vice president to see a case she oversaw as a state attorney general come up like this. The last vice president to serve as a state attorney general, Walter Mondale, served 12 years in the Senate before becoming vice president in 1977, meaning it’s unlikely he would have seen any of his cases make it to the Supreme Court by the time he was vice president. (Aaron Burr and Martin van Buren also served as state attorneys general before ascending to the vice presidency.)
Several people familiar with the case said Harris did not have much of a direct role. The California requirement that charities list their donors in state documents preceded her, though her office did send letters to groups like the Americans for Prosperity Foundation that failed to comply. Her successors as attorney general, Xavier Becerra and Rob Bonta, in turn have had their names on the case since Harris left that office in 2017.
“Once we got sued, the office’s automatic response is to defend our policy, which they did,” said Nathan Barankin, Harris’ former chief of staff.
Harris’ name does not come up often in court documents. Nor did she issue news releases during the litigation that emphasized her clash with the Koch brothers, which could have been a political winner for her, given their status among progressives as villains of the right.
If Harris had boasted of taking them on, though, it could have undermined her legal position. The groups argued that revealing their names to the attorney general, even if not made public, could subject them to harassment. And news releases that brag about taking on conservative groups could have shown she was, in fact, out to get them.
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Why the ruling matters
To explain the broader implications, I turned to David G. Savage, who has been covering the Supreme Court for The Times since 1986. You can also read his story on the 6-3 ruling, which fell along ideological lines.
Q: David, what’s the biggest takeaway from this case?
A: The Supreme Court’s six conservatives believe that big donors to conservative groups deserve to have their privacy protected. And they seem especially worried about conservatives being harassed in California.
Q: In this case, the list of donors was never made public. It was used as an enforcement tool by the attorney general. Why do some experts think the ruling could lead to doing away with the more public form of disclosure requirements for campaign donations?
A: Because if the chief justice writes an opinion that says the 1st Amendment protects not just your right to free speech but your right to have your privacy as a donor protected from public disclosure, it’s not too hard to imagine the next case in which lawyers argue that donors to controversial candidates — and maybe all candidates — deserve the same privacy.
Q: Kamala Harris did not write the law and it was enforced by then-Atty. Gen. Jerry Brown before her. But her office enforced it and she defended the lawsuit from conservative groups, pursuing an appeal after losing in District Court. If it creates what liberals call bad case law, how much blame will she get from the legal left?
A: Not much. She didn’t go in search of this case. California has something like 120,000 tax-exempt charities, and the attorney general has the duty to make sure those charities are not operating as scams to enrich the people who are collecting money and supposedly using it for a public, charitable purpose. The IRS tells these charities to file a confidential Schedule B that names the big donors to a charity, and California officials, like those in New York, said they wanted to also see a copy of that form. They said it allowed them to do a quick check on a charity if they received a tip or a complaint of possible wrongdoing. And that’s exactly what you would expect a state attorney general to do.
Q: Have any experts or advocates said this ruling would allow more fraud to proliferate?
A: Not that I know of. The state employees in the charitable giving unit will still pursue investigations if they learn of possible problems. They may have to undertake an audit to resolve their concerns.
Q: The conservative justices said in their ruling that fraud concerns were overblown. Yet in a separate ruling the same day, in which they allowed new voting restrictions in Arizona, they cited potential fraud as an important concern. What are we to make of the apparent contradiction?
A: I was struck by that as well and don’t have an explanation, other than that the court’s conservatives and liberals see these matters in quite different ways. In the Arizona case, Justice [Samuel] Alito said the state had a “strong and entirely legitimate” interest in protecting against fraudulent votes, even though he had no examples to cite. It wasn’t clear why throwing out the ballots cast by registered voters who went to the wrong precinct had anything to do with fraud. In the California case, Chief Justice [John G.] Roberts Jr. agreed there was fraud in charities, and the attorney general’s office had a duty to police it, but he said the investigators didn’t really need the names of the big donors in order to launch an investigation.
Q: Finally, we’ve been talking a lot about the conservative-liberal divide on the court itself. But one other thing that struck me is the list of outside groups that weighed in on the case does not fit neatly along those lines. At least two groups usually seen as liberal — the American Civil Liberties Union and the Council on American-Islamic Relations — filed briefs supporting the plaintiffs, who argued against disclosure. Were you surprised?
A: No. There are liberal groups — think of supporters of abortion rights, for example — where donors could fear they could be subject to harassment. And historically, the ACLU has been on the side of expanding 1st Amendment rights and protecting against compelled disclosures enforced by the government. But it’s also true, as Justice Sonia Sotomayor pointed out in her dissent, that most people who donate to charities — food banks, hospitals, museums, theater groups, wounded veterans, animal shelters and the like — are proud to be donors and do not fear having their names disclosed.
The view from Washington
— No notable Republican has declared an outright challenge to President Biden in 2024, but plenty of them are flocking to Iowa — signaling that the GOP presidential primary is already underway even as the former President Trump keeps Republicans guessing whether he will run again, writes Melanie Mason.
— Thomas J. Barrack, Jr., the chair of former Trump’s inaugural committee and a prominent Southern California businessman, was arrested Tuesday on federal charges that he and two associates were part of a secretive, years-long effort to shape Trump’s foreign policy as a candidate and later, president, all to the benefit of the United Arab Emirates, report Michael Finnegan and Matt Hamilton.
— The Justice Department on Monday issued a formal policy that restricts the ability of federal prosecutors to obtain the records of reporters, a policy shift that followed intense lobbying by free-press advocates outraged by the Trump administration’s efforts to obtain such data, Meena Venkataramanan reports.
— Biden took some credit during remarks from the White House’s State Dining Room on Monday for the country’s expanding economy, Eli Stokols writes. He also urged support for his two long-term infrastructure proposals, which hang in Congress’ balance this week as lawmakers battle over the details.
— From Sarah D. Wire: The Justice Department declined to prosecute former Commerce Secretary Wilbur Ross for misleading Congress about the origins and purpose of asking about citizenship on the 2020 census, a government watchdog told Congress on Monday.
— Twitter gave Rep. Marjorie Taylor Greene a 12-hour timeout, saying some of the Georgia Republican’s tweets violated the social media site’s policy on misinformation regarding the COVID-19 pandemic.
The view from California
— California is leading the drive toward electric cars, but as companies move toward scraping the seabed for battery materials, alarmed oceanographers and advocates warn they are literally in uncharted waters. It’s just one act in a fast unfolding, ethically challenging and economically complex drama that stretches around the world, from the cobalt mines of Congo to the corridors of the Biden White House to fragile desert habitats throughout the West where vast deposits of lithium lay beneath the ground, writes Evan Halper.
— Faced with widespread fraud in California’s unemployment benefit system, state officials said Tuesday they have hired former federal prosecutor McGregor Scott to serve as special counsel to assist in the investigations of bogus claims filed by international criminal organizations, prison inmates and others, writes Patrick McGreevy.
— California voters are getting an unprecedented peek at the personal finances of the candidates seeking to replace Gov. Gavin Newsom in September’s recall election, after hundreds of pages of documents were published online detailing salaries, investments and taxes paid over the last five years, McGreevy, John Myers, Phil Willon, Melody Gutierrez and Julia Wick report.
— Newsom faces a delicate decision over whether to again impose statewide mask requirements and risk upsetting Californians just weeks before they decide if he should be recalled from office, write Willon and Taryn Luna.
— Two groups of protestors converged at a spa in Westlake on Saturday and, by the end, the LAPD had used projectiles and batons and arrested 40 people. What happened? Far-right rage over transgender rights spiraled into chaos, report Leila Miller, Anita Chabria and Laura J. Nelson.
— Jerry Lewis, the longest-serving Republican congressman in California history and a former House Appropriations Committee chairman, died July 15. He was 86.
Changes ahead for Essential Politics
We’re making some changes to the way you get the latest political news from The Times. Starting next month, John Myers will host a new weekly analysis of California politics. You can sign up for it here.
The California Politics newsletter will continue to offer glimpses at what’s happening both on the campaign trail and in the halls of state government in Sacramento. We’ll focus on two big topics in the coming weeks: the Newsom recall election and the end of the California Legislature’s yearlong session. John’s last Monday edition of Essential Politics will run July 26.
Current Essential Politics subscribers will still receive the latest from David Lauter, Noah Bierman and Laura Blasey in Washington.
What would you like to see in California Politics and Essential Politics? Let us know at email@example.com.
One more quick programming note: Essential Politics is taking Friday, July 23, off. We’ll be back Monday.
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