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State Politicians and Bureaucrats Violate Rights & Attack ‘Nongovernmental Democracy’

There are plenty of politicians and bureaucrats (Lois Lerner, for example) at the federal government level who want to silence constitutional conservative activists and their organizations through unlawful assaults on the right of Americans to associate for causes in which they believe.

There are also politicians and bureaucrats at the state level doing the same.

NASCOOne group of state officials, the National Association of State Charity Officials (NASCO), wields tremendous power over charities and activist organizations, such as the 58 organizations that recently submitted an amicus brief to the Supreme Court in a challenge against California Attorney General Kamala Harris, describing her violations of federal law and constitutional rights. That brief also described extensive collaboration between NASCO and Lois Lerner even while she was targeting conservative groups with her unlawful deeds.

Government bullies know that they can wield more power over citizens by impeding and silencing our organizations through which we take action together. As I recently wrote at CNSNews, “’It is clear that if each citizen,’ wrote [Alexis de] Tocqueville, ‘as he becomes individually weaker and consequently more incapable in isolation of preserving his freedom, does not learn the art of uniting with those like him to defend it, tyranny will necessarily grow with equality.’” Tocqueville was describing “nongovernmental democracy.”

NASCO will soon hold its annual meeting in Washington, DC, and the following letter was sent to its president asking if NASCO would take steps to protect the rule of law against lawless, bullying state officials.

Janet Kleinfelter, Esquire
President, NASCO
Office of Tennessee Attorney General
P. O. Box 20207
Nashville, TN 37202-0207

Dear Ms. Kleinfelter:

          Regarding the upcoming October 5 – 7 annual meeting of the National Association of State Charity Officials at the Washington Marriott Georgetown – Washington, D.C.:

          NASCO would do well to adopt two resolutions about applying the rule of law to its own members:  (1) a resolution that NASCO members will provide citation to legal authority and grounds for all formal and informal demands and requests made of nonprofits and their agents, and (2) a resolution condemning the demands for federally protected, confidential IRS Form 990 Schedule B donor information in the charitable solicitation licensing process.

        My recent article at CNSNews provides an example of the practice and willful refusal of many NASCO members, including assistant attorneys general, to provide notice and ethical legal transparency to nonprofits and agents when making demands, requests, or requiring some type of action.  I write:

[MN AG] Swanson has 95 assistant attorneys general, and another 19 lawyers in her office. Their methods of regulating charities include making intimidating demands for documents and information without citing any legal authority. That method helps hide whether or not they are actually enforcing – and complying with – laws.

When I asked Swanson’s Assistant AG Elizabeth Kremenak to identify the legal authority under which she was issuing one of these demands, she responded by threatening me with a “civil investigative demand,” which is a warrant issued by her but not signed by a judge, and lacking probable cause.

Another one of the 95 assistant AGs told me Swanson’s office had no intent of providing charities with notice of legal authority for the many demands these government lawyers make.

The willful refusal to provide basic notice and transparency so charities may protect their rights against these lawless, bullying assistant AGs is unethical – but common among NASCO members.[1]

        Government officials -- but especially lawyers -- sending threatening demands to non-lawyers at nonprofit organizations or agents have an unfair advantage even when they are complying with the law, and too often the regulators are not.  Nonprofits that wish to comply with the law deserve disclosure of legal grounds and authority.  In complying with these demands by regulators, nonprofits often concede rights out of fear, lack of knowledge about constitutional constraints on government investigative authority, or lack of resources to hire lawyers to challenge unlawful, unethical demands by regulators.   Some regulators believe their "probable cause" required by the Fourth Amendment is merely that they are regulators.  And, when they are questioned about their actual legal authority and grounds, regulators often turn arrogant and bullying instead of providing notice and transparency -- as I describe in the article.

          The second resolution NASCO should adopt applies to what I’ve described as the NAACP v. Alabama for the 21st Century, which is reflected in a petition to the Supreme Court in the matter of Center for Competitive Politics v. Kamala Harris, Attorney General of California.  Demands for federally protected, confidential IRS Form 990 Schedule B in the charitable solicitation licensing process violate the freedom of association, violate federal law protecting privacy, and are an extortionate unconstitutional condition for the exercise of rights protected by the First Amendment.  I further write at CNSNews:

In a way more comprehensive and arbitrary than the Alabama attorney general’s … demands ruled unconstitutional in NAACP v. Alabama, [Ms. Harris] is using the licensing requirement as a substitute for an unconstitutional general warrant, which disrupts, intimidates, and trespasses on security of the liberty of private association.

[One amicus brief] describes extensive collaboration between notorious former IRS official Lois Lerner and the National Association of State Charity Officials (NASCO). * * *

There are, of course, attorneys general who respect rights and the Constitution, and follow the law. Three state AGs combined to file their own amicus brief against Ms. Harris’ actions. Addressing examples of political retaliation against citizens by government officials, the brief states, “[D]isclosure rules invariably chill freedom of association … . Merely placing this [donor] information in the hands of government officials constitutes a cognizable First Amendment injury.”

In a footnote below, I list the many amicus briefs including the three states and organizations representing millions of citizen-supporters describing the unlawful, unconstitutional, dangerous, and anti-democratic demands made by General Harris.[2]

NASCO would do well to show that it acknowledges and supports the rule of law by adopting the two resolutions I describe.

Very truly yours,


                                                Mark J. Fitzgibbons

                                                President of Corporate Affairs

                                                American Target Advertising, Inc.


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