Nonprofits Seek SCOTUS OK to File Brief in Support of Ariz. GOP Chair

Though Kelli Ward chairs the Arizona GOP, and whose emergency application is before the Supreme Court to quash the House Jan. 6 Select Committee’s subpoena for her T-Mobile call and text records, “the decision that will be reached by this Court will have significant impact on many nonprofit organizations throughout the nation,” said five conservative nonprofits in a proposed amicus brief Friday (docket 22A350) in support of Ward’s application.

The groups are America’s Future, Free Speech Coalition, Free Speech Defense and Education Fund, U.S. Constitutional Rights Legal Defense Fund, and Conservative Legal Defense and Education Fund. They sought leave Friday to file the amicus brief in support of Ward. Lawyers for Ward consented to the brief, and committee attorneys took no position, said the groups.

Ward’s overriding argument is that the subpoena violates her First Amendment associational rights and will chill the political participation of Republican operatives with whom she communicated in the days running up to the riots at the Capitol. The committee insists it needs the phone and text records for its investigation into Ward’s efforts to thwart certification of the 2020 election, but it doesn't allege that Ward herself entered the Capitol during the insurrection.

The amici nonprofits “know first-hand” the way in which subpoenas like those for Ward’s T-Mobile records can “chill political participation,” said the proposed brief. “Efforts by government officials to learn the identity of those engaged Americans with different views strike at the heart of such nonprofit organizations,” it said. “Such intrusive government tactics are designed to, and do, discourage donors from giving to nonprofits, impair efforts to recruit and retain members, and cause those who work in association with nonprofits on their programs to rethink their involvement.”

Though Ward’s emergency application focuses on the subpoena’s impact on her First Amendment rights, the subpoena “is also objectionable under the Fourth Amendment as a modern-day general warrant,” said the proposed brief. It’s akin to when the English government authorized agents “to issue dragnet warrants against colonists to allow those agents to wholesale search” the homes and possessions of colonists “suspected of some wrongdoing,” it said.

This application seeks to protect “enduring constitutional principles which transcend the politics of the moment,” said the proposed brief. How SCOTUS rules on the application “will also have consequences well beyond the effort of a Democrat-dominated Committee to subpoena the political contacts of a Republican Party official," it said. The November midterms “could moot the matter” of this subpoena, “but the threat posed is not just capable of repetition, but likely to be repeated in the future,” it said. The committee’s charter expires with the Jan. 3 end of the current Congress, and the charter is certain not to be renewed if Republicans take control of the House in 2023.

Though SCOTUS rules “do not expressly provide” for amicus briefs in support of or in opposition to an application for stay, the court “previously has allowed them,” said the groups’ motion for leave. “Amici organizations have a deep interest in protecting the constitutional checks and balances established in the U.S. Constitution,” they said.