The 9th Circuit Court of Appeals in San Francisco is pictured. The court ruled Friday that a judicial panel will not review a complaint by the Americans for Prosperity Foundation. | Marcio Jose Sanchez, File/AP Photo Legal Koch group won’t get broader appeals court review in donor secrecy fight The Americans for Prosperity Foundation has been fighting a California requirement to disclose its largest donors.

A Koch brothers-aligned group will not get a larger judicial panel to review its complaint that California is infringing the group’s First Amendment rights by demanding a list of large donors.

But the Friday ruling from the 9th Circuit Court of Appeals came over the protest of five of the court’s judges.


The group, the Americans for Prosperity Foundation, is part of a network of groups founded by conservative megadonors Charles and David Koch. It has been fighting the California requirement in the federal courts for years.

In 2016, a federal judge in Los Angeles blocked the requirement, saying it put the donors in peril and that California has done a poor job of keeping the information private. However, last September, a three-judge panel of the 9th Circuit reversed that decision, calling it “clearly erroneous.” On Friday, the same appeals court declined to offer an “en banc” — or 11 judge — review of the case, even though five judges joined a spirited dissent warning that the state appears to be running roughshod over the conservative group’s First Amendment rights.

In the dissent, Judge Sandra Ikuta wrote that the threat to Americans for Prosperity members’ rights was real and imminent.

“People publicly affiliated with the Foundation have often faced harassment, hostility, and violence, as shown by the evidence adduced at trial in this case,” Ikuta wrote. “At a rally in Michigan, several hundred protestors wielding knives and boxcutters surrounded the Foundation’s tent and sawed at the tent ropes until they were severed.”

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Americans for Prosperity has also claimed that Democratic officeholders are targeting the group for political reasons. Sen. Kamala Harris, a Democrat, was the California attorney general at the time the litigation began. Current Attorney General Xavier Becerra, also a Democrat and a former congressman, is now overseeing the case.

Ikuta called the earlier decision from her colleagues “contrary to the reasoning and spirit of decades of Supreme Court jurisprudence.” She emphasized that the two groups that sued over the California donor-filing requirement are organized as charities, not as groups taking part in election-related advocacy.

She also said the Supreme Court has approved donor-disclosure requirements in the electoral context, but not for non-profit groups more generally.

“The interests served by disclosure outside the electoral context, such as policing types of charitable fraud, pale in comparison to the crucial importance of ensuring our election system is free from corruption or its appearance,” wrote Ikuta, an appointee of President George W. Bush.

Ikuta’s dissent was joined by both of the court’s Trump appointees, Judges Mark Bennett and Ryan Nelson, as well as Judges Consuelo Callahan and Carlos Bea, who are George W. Bush appointees.

The three judges who issued the ruling last year upholding the California requirement defended their decision in a new joint response released Thursday. They noted that the federal government has long had a similar requirement to lodge donor lists privately with the IRS.

“Our colleagues sensibly declined to rehear this case en banc,” wrote Judges Raymond Fisher, Richard Paez and Jacqueline Nguyen, calling the burden on the donors “slight” and “modest.”

They also noted that the 2nd Circuit reached the same conclusion last year regarding a parallel New York state law. A Michigan-based conservative organization, the Thomas More Legal Center, also brought a parallel lawsuit and could try to take the issue to SCOTUS.

Fisher and Paez were appointed by President Bill Clinton. Nguyen is an appointee of President Barack Obama.

A Michigan-based conservative organization, the Thomas More Legal Center, also brought a parallel lawsuit and could try to take the issue to SCOTUS.

“We’re assessing the order and reviewing options,” AFP Foundation spokesman Dave Abrams said. “We appreciate the dissent’s recognition of why this case is so important. We’re committed to championing First Amendment liberties for all Americans and speaking out against measures that risk chilling diverse public discourse.”

“Charities aren’t above the law,” Becerra said in a statement. “In California, the law says they must report their major donor information. The organization known as Americans for Prosperity ought to be treated no better and no worse than anyone else. They don’t get to hide their activities simply because they wish to operate in darkness. Today’s federal appeals court ruling upholds the rule of law in California.”

The Thomas More Center didn't respond immediately to a request for comment on its plans.