Americans for Prosperity v. Bonta: How the Supreme Court Struck California's Donor Disclosure Rule

California's Schedule B Requirement

Charities that operate or raise funds in California generally must register with the state Attorney General and renew annually. The opinion records that more than 100,000 charities were registered and about 60,000 renewed each year. Under its rulemaking authority the Attorney General required renewing charities to file a copy of IRS Form 990 with all attachments and schedules, citing 11 Cal. Code Regs. s. 301. That included Schedule B, on which tax-exempt organizations list the names and addresses of donors who gave more than $5,000 in a tax year or, for some organizations, more than 2 percent of total contributions.

The two petitioners, Americans for Prosperity Foundation and the Thomas More Law Center, had renewed their registrations since 2001 but filed no Schedule B or only redacted versions. According to the opinion, enforcement was lax until 2010, when the California Department of Justice sent thousands of deficiency letters. The Law Center and the Foundation received theirs in 2012 and 2013. When the Attorney General threatened to suspend their registrations and fine their officers, both sued in the Central District of California, challenging the requirement on its face and as applied.

After bench trials, the District Court permanently enjoined collection of the petitioners' Schedule Bs. Its findings carried into the Supreme Court: officials testified that Schedule Bs were rarely used in audits or investigations, the information could be obtained elsewhere when needed, and the petitioners and their supporters had faced threats and harassment. The court also found the state unable to keep the forms confidential. The Foundation identified nearly 2,000 confidential Schedule Bs that had been posted to the Attorney General's website, and an expert reached hundreds of thousands of confidential documents by changing a digit in a URL. California later adopted a regulation, 11 Cal. Code Regs. s. 310(b), prohibiting public disclosure. The Ninth Circuit reversed, holding that narrow tailoring was not required and that up-front collection served investigative efficiency.

Exacting Scrutiny and Narrow Tailoring

Chief Justice Roberts wrote for the Court except as to Part II-B-1. That part, joined only by Justices Kavanaugh and Barrett, held that exacting scrutiny, the standard from Buckley v. Valeo, applies to compelled disclosure of every kind of association, not only in elections. Justice Thomas would have applied strict scrutiny, and Justice Alito, joined by Justice Gorsuch, declined to decide which standard applies because the result was the same under either.

Part II-B-2 commanded a majority, and it is the doctrinal holding. The Law Center argued that exacting scrutiny includes a least restrictive means test; the United States and California argued it requires only a substantial relation to a sufficiently important interest. The Court took a middle position: "While exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government's asserted interest."

The Court traced the requirement to Shelton v. Tucker (1960), which struck down an Arkansas law requiring teachers to list every organization they belonged to or supported, even though the state's interest in teacher fitness was legitimate. It also drew on McCutcheon v. FEC: "In the First Amendment context, fit matters." The majority rejected the dissent's reading that narrow tailoring applies only to regimes shown to impose severe burdens, reading Shelton's references to laws that "broadly stifle" liberties as describing the breadth of the law, not the size of a demonstrated injury.

Why the Court Struck the Requirement on Its Face

The Court accepted that California has an important interest in preventing charitable fraud and self-dealing. The problem was fit. It described "a dramatic mismatch" between that interest and a regime that gathered donor names, addresses and contribution totals from tens of thousands of charities every year. The record supported the District Court's finding that there was not "a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General's investigative, regulatory or enforcement efforts."

California's office, the Court said, had not even considered alternatives, quoting a witness: "I see no reason to change what we've been doing." The state's concern that a targeted request could tip off a charity was not substantiated, and investigators routinely sent broad audit letters early in an investigation anyway. The Court noted that California was one of only three states with such a requirement and had not enforced it rigorously until 2010. What remained was administrative convenience, and "the prime objective of the First Amendment is not efficiency."

To invalidate the rule on its face, the Court used the First Amendment overbreadth standard: a law may be struck down if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Because the lack of tailoring was "categorical," present in every application, every demand that might chill association failed. The Court rejected three counterarguments:

• That the forms were kept confidential: disclosure can chill association "even if there [is] no disclosure to the general public," and on this record the District Court found the state's promise of confidentiality "rings hollow"
• That some donors would not mind disclosure: the requirement still swept in "the information of every major donor with reason to remain anonymous"
• That donors are already reported to the IRS: "each governmental demand for disclosure brings with it an additional risk of chill," and a state registration requirement can keep a charity from operating in the state at all

Justice Thomas joined the result but wrote that courts lack power to declare a law invalid in all applications; he read the judgment as affirming relief to the petitioners. Justice Alito called the exacting scrutiny standard one with "real teeth" and wrote that the question "is not even close."

The Dissent

Justice Sotomayor, joined by Justices Breyer and Kagan, argued that the Court had abandoned the rule that plaintiffs must show an actual First Amendment burden before closer scrutiny applies. Under Buckley, she wrote, litigants had to show "a reasonable probability that the compelled disclosure of . . . contributors' names will subject them to threats, harassment, or reprisals." In Doe v. Reed (2010) the Court had rejected a facial challenge to disclosure of referendum petition signers for lack of such evidence across the typical case.

The dissent described exacting scrutiny as a sliding scale: the heavier the burden, the closer the fit required, and a modest burden calls for only a loose fit. It credited the Attorney General's post-trial security measures, including text searches of forms before upload and automated scans of public databases, and noted that California oversees nearly a quarter of the nation's charitable assets. Its sharpest line was a prediction: "Today's analysis marks reporting and disclosure requirements with a bull's-eye."

The dissent's disagreement was with the facial remedy as much as the standard. It said it would have been "sympathetic" to as-applied relief for these two petitioners, whose donors had shown a reasonable fear of reprisal, but objected to invalidating the regulation for every charity on a record containing evidence about only two. The majority answered that the relevant facts were "the same across the board": Schedule Bs were not used to start investigations, alternatives were not considered, and the state's interest was convenience, "in every case."

What the Decision Says About Donor Records

The opinion's statements about donor information are made in the context of a government demand, and they are specific. It treats the names, addresses and gift totals of major donors as sensitive information whose collection can deter association even when held confidentially. It identifies the practical risk in modern terms, quoting Justice Alito's earlier observation that "anyone with access to a computer [can] compile a wealth of information about" a person. And it notes the amicus filings of hundreds of organizations across the ideological spectrum as evidence that the concern was not confined to controversial causes.

The federal reporting regime the Court referenced has its own confidentiality rules. The current Schedule B instructions (Rev. December 2024) state that for organizations filing Form 990 or 990-EZ, other than section 527 political organizations, "the names and addresses of contributors aren't required to be made available for public inspection," while Schedule B is open to inspection for private foundations filing Form 990-PF. The instructions also say an organization filing its Form 990 with a state "shouldn't include its Schedule B" unless the state specifically requires a schedule of contributors, because states that do not require it "might inadvertently make the schedule available for public inspection." Since Treasury Decision 9898 in 2020, only section 501(c)(3) and section 527 organizations report contributor names and addresses on the schedule; other exempt organizations keep the information in their records.

California's regulation has since changed. The current text of 11 Cal. Code Regs. s. 301(b) still requires registrants to file Form 990 "together with all attachments and schedules as applicable," followed by a new sentence: "Schedule B to Internal Revenue Service Form 990 is not required." The section's history note lists an amendment of that paragraph filed November 23, 2021 and operative January 1, 2022, and a further amendment filed March 26, 2024.

This post describes the Supreme Court's opinions and the current state and federal texts. It does not survey how lower courts have applied the narrow tailoring holding to other disclosure laws since 2021; those decisions were outside the sources retrieved for it.

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