[EL] Institutional Realism in the AFPF/TMLC Schedule B cases, and the CA Attorney General's office refusal to use sufficient privacy protections

[Barnaby Zall]

An excellent posing of an "intriguing question," but in that wording, are you conflating refusal (the voluntary "inability to follow its own law") with impossibility? California was able to follow the law required to get the IRS material compliantly, under both its own law and practice. The Attorney General's office consciously chose not to do so, after obtaining the information compliantly using the long-existing exchange mechanism used by California's tax agencies. Why? Because, inter alia, the Assistant Attorney General in charge decided she did not want to keep logs of access to the files. So she literally could not know when or how the information leaked. The impossibility of compliance was because of the underlying unwillingness to do what was necessary to comply. So, is a half-hearted and knowingly ineffective attempt to comply enough to trigger the presumption? 
Maybe I'm misunderstanding your question: the frequency "in which a state law or policy is unconstitutional as-applied because the state’s track record means the state cannot be assumed to adhere to its own policies.")? Perhaps because the cases often don't use the phrase "presumption of regularity," but that question is raised all the time in various forms in constitutional challenges, often at a preliminary stage, e.g., as a case-or-controversy test. 
United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926) (“The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Emphasis added.); see, also, Rozenshtein, "Another Blow to the Presumption of Regularity," Lawfare, March 10, 2020, Another Blow to the Presumption of Regularity - Lawfare (lawfareblog.com). Whenever the Court rejects a State's implementation of an official interpretation of a facially-valid statute (using your formulation, I believe), that's a rejection of the presumption of regularity. When the rejection is based on what the State actually did, rather than hypotheticals (as it must in many, but not all, First Amendment cases, usually identifiable when the court starts talking about "risk"), the presumption goes away in favor of the factual record. In practical terms, the presumption is most useful in pre-enforcement challenges to government policies; that's how you avoid advisory opinions; deference usually vanishes when there is significant record evidence of a conflict with statutory expectations. And at bottom, that's what's at issue in Americans for Prosperity Foundation/Thomas More Legal Center v. Bonta. 
There is a similar substantial question, seldom debated but an evident concern, as to whether the presumption of regularity is equally valid when laws are passed by citizen action (initiatives or referenda). For example, in one of my cases, Arizona v. Arizonans for Official English, 520 U.S. 43 (1997) (pre-enforcement free speech challenge to initiative-adopted state law requiring government employees to use English for official actions dismissed as moot when employee left government service), the Court said:
The Attorney General "ha[d] formally interpreted Article XXVIII as not imposing any restrictions on Yniguez's continued use of Spanish during the course of her official duties," id., at 312, and indeed all three named defendants, Mofford as well as Corbin and Eden "ha[d] stated on the record that Yniguez may continue to speak Spanish without fear of official retribution." 730 F. Supp., at 312. Governor Mofford therefore reiterated that Yniguez faced no actual or threatened injury attributable to any Arizona executive branch officer, and hence presented no genuine case or controversy. But the District Court singled out the stipulations that "Governor Mofford intends to comply with Article XXVIII," and "expects State service employees to comply with Article XXVIII." If Yniguez proved right and the Governor wrong about the breadth of Article XXVIII, the District Court concluded, then Yniguez would be vulnerable to the Governor's pledge to enforce compliance with the Article. 
520 U.S. at 54.
In other words, this government employee's First Amendment claim turned on whether she would be sanctioned for speech on the job under her interpretation (as yet unsupported by State or Federal courts) or whether the State's actual conduct and official interpretation would have shielded her from penalty. She said the State would not adhere to its announced policies because the statute would override the policies, and so her speech was chilled. The State and the intervenors (initiative sponsors) agreed with the Attorney General's interpretation (the State's declared course of conduct), and said her concern was unfounded. AOE is often cited in the Court's later standing and mootness discussions, but the constitutional question was raised and decided in the lower courts.  
And referring to the AFPF/TMLC case in particular, in the context of "institutional realism," California's Attorney General made a choice not to comply with a long-standing standard to protect confidential tax information. Church of Scientology of Cal. v. IRS, 484 U.S. 9 (1987) (rejecting church's attempt to obtain tax information about its own members because tax privacy rules passed in wake of Nixon-era abuses must be interpreted strictly); Landmark Legal Found. v. IRS, 267 F.3d 1132, 1135 (D.C. Cir. 2001) (“Under the latter reading, Congress would be understood to have thought that the specifically identified information, if in the hands of the IRS at all, should be categorically sheltered from disclosure.”). 
The Attorney General's office, in fact, at one point ("a pilot program") received the confidential IRS information in both paper and electronic form, after it agreed to keep the information confidential under the same IRS-required procedures used by virtually all states, including California's tax agencies. See, e.g., Joint Appendix in 19-251, Testimony of Belinda Johns, long-time senior assistant attorney general in charge of the relevant section of the office, at 334-335 (paper information: "And then I had to shred them in accordance with the specific IRS shred. I couldn’t keep anything on the website -- not on the website, but even on my desktop. I had to keep a log that was written in pen. And I did all those things, but in the end it was impossible to use what we were receiving even though it was valuable.So I was ready to let it go when I retired, and I think now the office has dropped out of that project."), 336-338 (electronic information) ("A. We received complete 990s, together with Schedule B, through the fed/state retrieval system." ... "Q. you did not -- and when I say “you,” I’m talking about also your section -- chose not to put in the safeguards that the IRS required for electronically provided confidential documents?" ... "Q. You don’t know, okay. So you don’t know who would have made the policy decision to not put in place the IRS safeguards? You have no idea?  A. I never discussed it with anyone. I made a decision"). When it found the IRS confidentiality rules too burdensome, it decided not to comply with those restrictions, and to go its own way, with the easily-predicted results.  
In other words, the presumption of regularity doesn't actually control here, because the Attorney General chose, after trying, not to comply with applicable laws and industry practices. It simply demonstrates that the presumption is overcome by record evidence. And isn't that what a "presumption" is all about? It's merely a deference rule, not an absolute. Setting the burden, and then shifting it back if evidence shows that what is presumed is not, in fact, true? 
And given the nature of the cases before the Court, many of which require analyzing the record against the burden of proof (see, e.g., the "appearance of corruption" cases discussing how much a State must show to demonstrate a well-founded "appearance" justifying campaign finance limits, e.g., Lair v. Mangan, 873 F.3d 1170, 1188 (9th Cir. 2017) (“the risk of actual or perceived quid pro quo corruption” by out-of-state actors is neither “illusory” nor “mere conjecture.”)), isn't that likely to be the proper course?
Barnaby ZallFriday Harbor, Washington



INSTITUTIONAL REALISM, DISCLOSURE LAWS, AND THE AMERICANS FOR PROSPERITY CASE
Posted on April 27, 2021 12:38 pm by Richard PildesThere’s an intriguing, underappreciated aspect to the constitutional issues before the Supreme Court in this case, which involves California’s requirement that certain charitable organizations which fundraise in the state file non-public forms with the Attorney General’s office that include disclosure of the identities of substantial contributors. If these forms remained confidential with the AG’s office, as they are supposed to be under CA law, there would not be much risk that contributors to controversial organizations would be harassed, retaliated against, or chilled from donating.  But a key fact is that CA has a bad track record of inadvertently publicly disclosing some of these forms; state employees posted over 1,800 of them online.  The state now asserts it has instituted new protocols that will ensure the confidentiality of these forms going forward.  Understandably, there are questions about how much confidence anyone should have that these new protocols will be fully effective.  But even if they are, petitioners contend that CA’s track record of exposing contributors will still exercise a chilling effect on future donors.CA’s law is being challenged both on its face and as-applied.  If the law is upheld on its face, CA could still impose the filing requirement, but individual charities could argue that their donors, in particular, face a reasonable probability of harassment, retaliation, and the like – and that the law is therefore unconstitutional as applied to them.  I want to focus on the as-applied issue (though my point will ultimately apply to the facial challenge as well).Normally, an as-applied challenge means that the way a general law applies to the particular circumstances of an individual or group makes that law unconstitutional with respect to that person or group.  But here, it would be the combination of California’s inability to follow its own law and rules¸ along with the specific vulnerability of particular charities, that would make the law unconstitutional as applied to that charity.  That’s the interesting twist:  I cannot recall a case (maybe others can) in which a state law or policy is unconstitutional as-applied because the state’s track record means the state cannot be assumed to adhere to its own policies. Again, if CA could be trusted to keep these non-public forms actually non-public, the risk that AFP’s donors would be harassed would be extremely low.  Put another way:  if this case came from a state that required these forms but which had never publicly disclosed any of the information on those forms, would an as-applied challenge succeed?This aspect of the case does also potentially affect certain versions of the facial challenge.  Thus, the ACLU argues that the law should be treated as a “de facto” public-disclosure requirement, given CA’s history of incompetent disclosure, and struck down on its face partly for that reason:  “But in light of California’s record of inadvertently publicizing these sensitive documents, its demand should be treated as a de facto public-disclosure requirement, triggering a more stringent form of exacting scrutiny. The record in this case discloses a disturbing pattern of failures to keep the forms confidential.” The intriguing aspect to all this is that the Court is being asked to take an “institutionally realist” view of California’s executive branch.  Even though CA officials are not supposed to leak these forms to the public, and are even prohibited by law from doing so, the reality is that they have demonstrated over and over again a failure to follow their own law and protocols.  Normally, courts assume a “presumption of regularity” to the conduct of government.  Thus, this case implicates, in my terms, the tension in constitutional law between the Court taking a more “realist” or more “formalist” stance toward public institutions — in this case, toward CA’s executive branch.  In a more formal stance, the Court would say CA law requires these forms to be kept confidential and we decide the case on that basis.  But from the oral argument, it appears the Justices are likely to assess CA’s law against the reality of how its government actually functions (or malfunctions). In the major precedents on disclosure and the First Amendment, the risk of retaliation did not result from the government failing to follow its own laws.  In NAACP v. Alabama and the Gremillion case, the forms were meant to be publicly disclosed.  In Shelton v. Tucker, the state could fire teachers at will, which is what made the disclosure laws unconstitutional there.In the AFP case, petitioners do offer one theory that would strike down the CA law whether or not the state had a clean track record; the argument is that the state does not have a strong enough interest to require these forms in the first place.  But if AFP wins, either in the Supreme Court or on remand, based in part on CA’s record of incompetence, that will reflect the courts deciding to take an institutionally realist view of state government.
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