Characterizations, editorial comments, abbreviations and shorthand references are solely PPA Highlights author Barnaby Zall’s, and do not necessarily represent the views or positions of the Public Policy Legal Institute, the First Tuesday Lunch Group or their members and participants. Suggestions and corrections welcome.

FEC

FEC Commissioners Reject OGC’s Attempt to Separate Marital Assets, Setting New Constitutional Review Standard: Cong. Lori Trahan and her husband David had signed pre-nuptial agreements defining marital property before she ran for Congress, including real property purchased during the marriage. During her 2018 congressional campaign, she loaned her campaign $300,000 from her personal funds, and $71,000 from a home equity loan obtained in 2010. The Office of Congressional Ethics investigated the use of loan proceeds and found no ethical problem. Reviewing a complaint by the Campaign Legal Center, the FEC’s OGC came to a different legal conclusion from OCE, claiming that the use of the proceeds, mixed with the personal funds, meant that the entire $371,000 in campaign loans was an illegal excess contribution by David Trahan.

In MURs 7585/7588 (Trahan), four Commissioners at the Federal Election Commission, led by Chair Dara Lindenbaum, rejected the attempt by the FEC’s Office of General Counsel to separate the marital assets of a U.S. Representative and her husband: “The federal government should pause before scrutinizing the minute financial arrangements of married couples. This is so even where one of the spouses has been elected to federal office. And in the rare circumstances where such an investigation is justified, the government should take care not to assume that assets jointly owned or controlled by a husband and wife are solely the property of one spouse.” Id., at 7.

The four commenting Commissioners, in a footnote, also noted an important constitutional analysis point:  

That interest [avoiding corruption or the appearance of corruption, the only government interest strong enough to overcome First Amendment rights] is somewhat attenuated where, as here, the financial transfers occur between spouses, and especially spouses who broadly share a joint right to each other’s funds. Even if there were a generalizable corruption interest at issue, it is not obvious that highly-invasive investigations into the intimate financial arrangements of married couples is at all proportional to the government’s interest. M.L.B. v. S.L.J., 519 U.S. 102, 117 (1996) (“Choices about marriage [and] family life” are “among [those] associational rights this Court has ranked as ‘of basic importance in our society’” “sheltered by the [Constitution] against the State’s unwarranted usurpation, disregard, or disrespect”) (quoting Boddie v. Conn., 401 U.S. 371, 376 (1971)).

MUR 7585/7588, at 3-4 n. 17.

Dueling Replies to Motions to Dismiss in D.C. Circuit May Presage a Conclusion to the Long-Running Battle Over Three Commissioners Being Sufficient to Dismiss FEC Complaints: Some recent filings in various cases being considered by the U.S. Court of Appeals for the D.C. Circuit concerning battling claims over whether it takes four or only three votes for the Federal Election Commission to dismiss complaints of violations of federal campaign finance law. For example, in CREW v. FEC, (No. 22-3281), both the agency and intervenor/appellant American Action Network have filed Replies to CREW’s Opposition to the appellants’ Motions to Dismiss.  The FEC relies on the “futility” doctrine, pointing out that three Commissioners have made plain their continuing objection to proceeding with enforcement actions against AAN under the facts in this case, precluding ever reaching a majority vote of the six Commissioners.  AAN relies on D.C. Circuit precedent declaring three Commissioners sufficient to dispose of CREW’s Complaint. Thus, the stage is set for oral argument and the appeals court’s final disposition of this case. Because there’s neither a split among circuits nor a pressing jurisprudential controversy now that the FEC has a quorum of voting Commissioners (the two most common reasons for the Supreme Court to grant review), the Supreme Court is unlikely to pick up this issue unless the D.C. Circuit goes seriously off the rails, and the appeals will likely settle this pesky and confounding controversy. Let’s hope so, anyway.

Covington Explanation of New Internet Disclaimer Rules: The FEC’s new rules on disclaimers on internet communications goes into effect March 1. Covington has a new explainer giving details.

IRS

Big Mama Rag is BACK! Chair of House Judiciary Subcommittee on Crime and Federal Government Surveillance Blasts “Intrusive” Questions on Foundation’s 1023, But Was the Service Actually Out of Line? Invoking the specter of the 2010 Lois Lerner “targeting” scandal,  House Subcommittee Chair Andy Biggs told the media site Just the News that “The queries in the IRS interrogatory [to the Adams, Baldwin and Covey Foundation] are ‘a form of government surveillance of the American people, … There is no authority for the IRS to regulate speech.” Some might view this strong statement as just overheated rhetoric, but Chairman Biggs actually has history on his side. The IRS’s position in regulating charities’ speech through applications for tax-exemption is tissue-paper thin and all that props it up is a forty-year long trail of litigation and IRS squirming under fire.

The actual documents behind the current controversy sparking Biggs’ concern don’t seem to be available, but the background seems to be something like this: ABC Foundation filed an IRS Form 1023 Application for tax-exemption on Sept. 28, 2021, the IRS didn’t respond until August 2022, and sent as its response a series of boilerplate questions similar to those in use for decades. The request for more information was dated May 23 with a response date of June 2022. The questions are all derived from the requirements for qualifying as an IRC § 501(c)(3) educational organization (which is what ABC sought) as struck down in the seminal decision of Big Mama Rag v. United States, 631 F.2d 1030 (D.C. Cir. 1980), but kind of resurrected by subsequent decisions.

Big Mama Rag centered on the definition of “educational,” as set forth in Treas. Reg. § 1.501(c)(3)-1(d)(3)(i) (1959): “An organization may be educational even though it advocates a particular position or viewpoint so long as it presents a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion. On the other hand, an organization is not educational if its principal function is the mere presentation of unsupported opinion.” Pretty much what the questions to ABC Foundation were asking.

The D.C. Circuit, however, rejected those questions in Big Mama Rag: “The definition of ‘educational’ contained in Treas. Reg. § 1.501(c)(3)-1(d)(3) lacks sufficient specificity to pass constitutional muster. Its ‘full and fair exposition’ standard, on the basis of which the denial of BMR, Inc.’s application for tax exemption was upheld by the court below, is vague both in describing who is subject to that test and in articulating its substantive requirements.” 631 F.2d at 1039.

The IRS, used to deference from reviewing courts on its tax-exemption decisions, was shocked by the decision. The Service published a very unusual discussion of the case in its internal TE/GE Continuing Professional Education training guide for 1981. “The Big Mama Rag decision will have a tremendous impact on Exempt Organizations. … The immediate problem is what standards to use in handling new ‘educational’ organizations’ applications, because the Court of Appeals does not provide guidance. The long-range problem is to develop examination guidelines and to determine whether the exemptions issued under the now invalidated regulations will be affected. At this writing [1981], these questions are unresolved, and they will probably not be resolved easily or quickly.”

Why so earthshattering? Because – “zut alors!” – the IRS will be held to First Amendment scrutiny: “The Court of Appeals virtually raised IRC 501(c)(3) exemption and IRC 170(c)(2) deductibility to the level of constitutional rights with the many safeguards that attach to such rights. The court did so in spite of Cammarano, et al., supra. This judicial tack would seem to open most Service determinations on exemption and deductibility to extensive judicial review and possibly to review by other agencies concerned with constitutional and civil rights issues. This judicial position calls into question the Service’s basic administrative role. One wonders if the court really understood the full implications of its ruling equating tax exemption with tax subsidies and such ‘subsidies’ with fundamental, constitutional rights.” (This fight over whether tax subsidies “waives” individual First Amendment rights continues to this day. See, e.g., id., pp. 22-29.)

Tellingly, the IRS CPE noted that “It is clear that the court genuinely believed that the Service discriminated against BMR because of its articles on lesbianism, and that that belief was a big factor in its decision.”  So, faced with the judicial mandate, the IRS crafted a “position-neutral” methodology for evaluating whether an organization could qualify as an educational organization or would fail the statutory prohibition on “propaganda.” The new test (ultimately promulgated in Rev. Proc. 86-43, 1986-2 C.B 729, and still in use) “focuses on the method the organization uses to advocate its position, rather than the position itself.” Under this test, the IRS will look at four “factors”, any of which may suggest that the organization may be engaged in propaganda rather than education:

• The presentation of viewpoints unsupported by facts represents a significant portion of the organization’s communications.
• The facts that claim to support the viewpoints appear distorted.
• The organization’s presentations substantially use inflammatory and disparaging terms and express conclusions based more on strong emotions than on objective evaluations.
• The approach the organization uses in presentations isn’t aimed at developing the intended audience or reader’s understanding because it doesn’t consider their background or training on the subject.

Despite sounding much like the process struck down in Big Mama Rag, the new methodology was upheld in subsequent cases, including in decisions affecting white nationalist organizations such as The Nationalist Movement v. Commissioner, 102 T.C. 558 (1994), aff’d, 37 F.3d 216 (5th Cir. 1994), cert. den., 513 U.S. 1192 (1995), and National Alliance v. United States, 710 F.2d 868 (D.C. Cir. 1983). In Nat’l Alliance, for example, the D.C. Circuit took pains to harmonize the new IRS guidelines with Big Mama Rag: “We observe that, starting from the breadth of terms in the regulation, application by IRS of the Methodology Test would move in the direction of more specifically requiring, in advocacy material, an intellectually appealing development of the views advocated. The four criteria tend toward ensuring that the educational exemption be restricted to material which substantially helps a reader or listener in a learning process. The test reduces the vagueness found by the Big Mama decision.” National Alliance, 710 F.2d at 875. But Footnote 2 in The Nationalist Movement says, in part, ““Rev.Proc. 86-43 attempts to reduce the vagueness in the application of § 1.501(c)(3)-1(d)(3). The constitutionality of this test has not been decided by any circuit. However, the D.C. Circuit discussed the test with approval in National Alliance v. United States, 710 F.2d 868 (D.C. Cir. 1983).” Nationalist Movement, 37 F.3d at 218 n. 2. The Supreme Court declined cert of Nationalist Movement in 1995.

Bottom line: with this rickety structure in place, ABC Foundation is raising an important, but unresolved issue. Unfortunately, it is doing so in an inappropriately hostile way, when all that is needed is a little history lesson. Don’t discount, however, the possibility that the highly-motivated House Judiciary leadership might fixate on this forty-year-old unresolved controversy to hold the IRS accountable under the First Amendment. There is, in fact, substantial potential for abuse in the IRS’s “position-neutral” methodology.

UPDATE: It appears that ABC Foundation has a recording of the signer of the ABC Foundation denial analysis, IRS employee, IRS Exempt Organization Specialist Sherry Wan, telling a different organization in a 2012 phone call that “You cannot force your religion or force your beliefs on somebody else,” and “You cannot use any kind of, you know, confrontation way, or to, or against other groups or devalue other groups, other people’s beliefs.” That might look less “position-neutral” than permitted under IRS procedures in place since 1983.

COURTS

Court Blocks New York Law Requiring Social Media Platforms to Post Policies Regulating Speech, Holding That It Unconstitutionally Compels Speech: UCLA Law Prof. Eugene Volokh is, among other things, a well-known expert on the First Amendment and leader of the blog The Volokh Conspiracy. He and other media sites sued to block a New York “hate speech” law that would have required them not only to block “hate speech” (broadly defined), but also to post a policy explaining how they would block that speech. In Volokh v. James, Judge Andrew L. Carter, Jr., of the Southern District of New York, enjoined that law as violating the First Amendment. First quoting the U.S. Supreme Court in Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” (citations omitted)), Carter wrote:

the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal.

What Would A “Ready For Ron” Victory Mean For Tax-Exempt Organizations’ Relationships With Persons Administratively Presumed to be “Testing The Waters” For Candidacy? Ready For Ron, a registered unauthorized political committee has been fighting with the Federal Election Commission over whether and when it can provide Florida Gov. Ron DeSantis with the names and contact information of the hundreds of thousands of people who have signed its petition urging him to run for President. Advisory Opinion 2022-12 (Ready For Ron). The key question is whether DeSantis can be considered to be “testing the waters” for a run. In AO 2022-12, the FEC said that R4R cannot present the petition-signers’ information to DeSantis either when he begins to test the waters or becomes a candidate because it’s a thing of value in excess of both statutory or regulatory limits. Id., at 4. R4R itself values each signer’s information at 5 cents, which R4R admits would exceed the $2,900 statutory limit on contributions to candidates. Id., at 6. R4R alternatively denies that it would exceed the regulatory limit on contributions to persons testing the waters for a possible candidacy for a variety of reasons, asserting that the value of the names and information is being contributed by the signers, not R4R. The FEC could not form a majority of four Commissioners’ votes to decide if R4R could provide the information to DeSantis before he began testing the waters, so did not make a finding. Id., at 10.

R4R took the question to the District Court for D.C. (as permitted by statute), arguing that the testing the waters regulation, 11 C.F.R. § 100.72(a), conflicted with the statutory definition of testing the waters and the FEC lacks the authority to expand its power to limit contributions beyond the statutory definition, especially in light of the First Amendment. Reply to Opposition to Motion to Dismiss, 3-12.

Leaving aside the question of whether R4R’s position is correct, consider the effect of a District Court decision that 11 C.F.R. § 100.72(a) is valid AND extends retroactively to cover anyone who subsequently becomes a candidate. Would this retroactivity also expand the coverage of the 501(c) limits on political campaign intervention, by deeming activity before the statutory definition of candidate kicks in to be PCI? After all, that’s essentially the same question being raised repeatedly in other cases, such as Washington State’s repeated insistence that pro bono legal assistance can be considered PCI (recently asserted in Texas as well).

DEPT. OF JUSTICE

What Happened to Voter I.D. As a Partisan Issue? Only a few years ago, the requirement to present voter ID was a hot political and legal issue, but recently it’s been a bit more muted. Perhaps one reason is that voters generally support voter ID, even while being increasingly concerned about other, seemingly similar voting regulations. And a new report from the National Academy of Sciences, authored by Notre Dame professors Jeffrey Harden and Alejandro Campos, offers another, surprising reason: the political calculations behind the partisan positions may be wrong, and have been for ten years (long enough for campaign strategists to notice).

In the first two decades of the twenty-first century, many American state governments implemented voter identification (ID) laws for elections held in their states. These laws, which commonly mandate photo ID and/or require significant effort by voters lacking ID, sparked an ongoing national debate over the tension between election security and access in a democratic society. The laws’ proponents—primarily politicians in the Republican Party—claim that they prevent voter fraud, while Democratic opponents denounce the disproportionate burden they place on historically disadvantaged groups such as the poor and people of color. While these positions may reflect sincerely held beliefs, they also align with the political parties’ rational electoral strategies because the groups most likely to be disenfranchised by the laws tend to support Democratic candidates. Are these partisan views on the impact of voter ID correct? …

The first laws implemented produced a Democratic advantage, which weakened to near zero after 2012. We conclude that voter ID requirements motivate and mobilize supporters of both parties, ultimately mitigating their anticipated effects on election results. …

Nonetheless, this research does not imply that voter ID laws represent a benign reform. A broad majority of the American public supports them, but these laws can also alienate disadvantaged groups from politics. Thus, they are most useful to the extent that they solve a problem observed in American elections. Empirical evidence—which examines voter turnout, voter fraud, and now, election results—shows essentially no such problem. Thus, future election policy may benefit from a shift in the debate. Instead of focusing on security versus access, lawmakers should consider the threshold for a baseline level of voter responsibility while avoiding the enactment of barriers that lack empirical support.

GENERAL

Washington Examiner Investigates Federal Funding of “Global Disinformation Index” (aka “Disinformation Inc.”) Which Seeks to Cut Off Funding For Conservative Media and Organizations: Conservative newspaper’s deep dive into federal funding for the “Global Disinformation Index,” a British company with two U.S. 501(c)(3) related entities, actually doesn’t cover one of the more interesting aspects of this odd federally-funded structure. Trying to follow the tax filings of the two listed organizations is difficult because the groups’ filing addresses in New York and names on Guidestar don’t match their current addresses in San Antonio, Texas, from Pro Publica’s data. Their website is no help, since it doesn’t list an address.

Leaving aside the irony of a “data-driven” “transparency” organization not having current information publicly available on itself, media coverage of the GDI effort is quite interesting. Basically (although it doesn’t say this on its website or report it on its publicly-available 990s), the organization attempts to cut off funding for organizations that GDI contends publish “disinformation” by publishing a “blacklist” for advertisers to avoid, including such well-known and generally credible media organizations as Reason magazine, and the New York Post newspaper (which uncovered the Hunter Biden laptop story, suffered for the discovery, and was later vindicated by widespread acknowledgement that the story was real and a legitimate scoop). On the flip side, the “less risky” groups which have supposedly not circulated disinformation include Buzzfeed (which promoted the discredited Steele dossier) and Huffpost (which repeatedly downplayed the Hunter Biden laptop as “Russian disinformation”); the less risky media companies do include The Wall Street Journal.

It’s not a problem to be biased and hypocritical, except if you’re a 501(c)(3) apparently hewing to the Big Momma Rag definition of “educational,” which requires the presentation of factual information with sufficient information so that the reader can make up her own mind (see story above on ABC Foundation). And, probably if you’re a federal funds grantee, in the wake of the Dept. of Homeland Security’s fiasco of a Disinformation Board. In the wake of the media coverage, Microsoft, which owns digital advertising giant Xander, quickly moved to freeze its use of GDI’s blacklist and remove negative “flags” such as “reprehensible/offensive.”

Oops! Open Secrets Claim That “Business Interests” Spent $3.5 Billion on Political Contributions Was Wrong, Points Out IFS Column: When the organization Open Secrets claimed in January that “business interests” had contributed $3.5 Billion to political campaigns, they apparently forgot to mention that their definition of “business interests” didn’t just include … say, businesses, but also included employees of businesses, which is a heck of a lot more numerous than just the entities. The Institute for Free Speech’s eagle-eyed Alec Greven quickly caught the overstatement, and explained it in a fact-check column. “In fact, individual contributions account for nearly $2 billion of the $3.5 billion spent by so-called ‘business interests.’”

 Interestingly, while Open Secrets reported employees’ contributions as being from “business interests,” it made no effort to correlate the contributions of stockholders in businesses, who would appear to have at least an equivalent interest in a business which they own. Perhaps Open Secrets recognized the long-established and recently reviewed evidence that not all shareholders agree with the political machinations of the corporations they own.  

Politico Click-Bait Piece on Leonard Leo’s “Lavish Lifestyle:” As much as Politico has improved after its purchase by international media, once in a while it backslides into mere “useful tool” status, as in a recent hit piece on Leonard Leo having adopted a “lavish lifestyle” as his profile skyrocketed in the last two decades. Quoting a veritable hit parade of his opponents, reporter Heidi Przybyla offers such in-depth analysis as “The official address for The 85 Fund, which has appeared for at least ten years on paperwork registering dark-money groups associated with Leo, is Suite 268 of a building in the Georgetown neighborhood of DC. It houses a UPS store, where an employee said there are no suites, only mailbox rentals.” Many “questions” raised, little light generated.

Covington Expands Pay-to-Play Survey To Include Federal Rules: Covington has long published a list and explanation of state-level laws that govern political activities of those who contract with or are regulated by agencies and jurisdictions. Now it has expanded the 2023 updated edition to include rules governing federal contractors’ contribution and political activities. The federal section covers “the Securities & Exchange Commission (SEC Rule 206(4)-5 and SEC Rule 15Fh-6), the Municipal Securities Rulemaking Board (MSRB Rule G-37), Commodity Futures Trading Commission (CFTC Rule 23.451), and Financial Industry Regulatory Authority (FINRA Rule 2030).”

Some “E-pollbook” Software Might Mean Voting Errors Cannot Be Recovered by Post-Election Audit: Concerned about election administration and possible fraud? So far, as in Mercer County, New Jersey last year, paper backups allowed accurate recounts, but that apparently may not be true in future cases, and it is also reportedly possible that persons not physically within the counting center can alter the vote counts in some cases. Computer Science Prof. Andrew Appel from Princeton’s Center on Information Technology Policy has written widely on cybersecurity and election administration in the U.S. and globally. Appel now has a report (and even more chilling comments follow) in the blog Freedom to Tinker on unrecoverable ballot errors in Williamson County, Texas, 2020 local elections: “flawed e-pollbook software resulted in voters inadvertently voting for candidates and questions not from their own districts but from others in the same county.  These voters were deprived of the opportunity to vote for candidates they were entitled to vote for—and their votes were wrongly counted in elections that they shouldn’t have voted in.  This wasn’t the voters’ fault, but it does mean that the results in elections for local offices were affected by this screwup by Tenex Software Solutions. … in Williamson County, the mistake was unrecoverable.  Once the voters have been given the wrong ballots, then no amount of recounting can recover a fully valid election result.” Unverified comments suggested that “Eastern Europeans” in cars outside the voting site could interfere with the voting process or vote counts, and that the upcoming session of the Texas Legislature would be investigating the WillCo situation. At best, even if these reports prove incorrect, they could spawn new grounds for election denialism (publicly saying that the results were incorrect) or claims of foreign interference in U.S. elections.

Stanford Study Says Candidates’ Views on Election Denial Only Changed a Small Number of 2022 Midterm Votes, But Might Affect Future Primaries and Close General Elections: Speaking of election denialism, some Republicans, such as pollster Whit Ayres, are claiming that election denialism is a losing proposition for future campaigns. Doctoral student Janet Malzahn and Political Economics Prof. Andrew Hall wrote in the Stanford Business Review that comparing election results from the 2022 midterm voting with public election denialism indicates “that only a relatively small group of voters changed their vote in response to having an election-denying candidate on the ballot,” suggesting that the major effects were in primaries and close general elections. “We find that election-denying candidates underperformed in 2022 by a margin substantial enough to suggest that it could tip close elections in the future, including the 2024 presidential race. On the other hand, the penalty we document is also small enough to suggest that many voters were willing to continue supported Republican candidates even if they denied the results of the 2020 election. … Our study provides a helpful update to the literat[ur]e on candidate positions in this new political era by focusing not on candidates’ ideological portfolio but on their stance on one extremely salient issue—the outcome of the 2020 election. As we have shown, a small but pivotal group of American voters have meaningfully punished the candidates who have supported it.”

Meanwhile, the New York Times reports that most social media companies are cutting back efforts to regulate “disinformation” online. “Faced with economic headwinds and political and legal pressure, the social media giants have showed signs that fighting false information online is no longer as high a priority, raising fears among experts who track the issue that it will further erode trust online.” Perhaps those companies could cut costs by using the Global Disinformation Index instead (see story above)?

Covington Reports on “Tips for Responding To Corporate Political Disclosure Shareholder Proposals:”  As the number increases of shareholder proposals that corporations disclose their contributions or relationships with political or tax-exempt organizations such as associations, Covington offers some “tips” on how corporations should respond. For example: look at P. 27 of the policy issued last November by the well-known advisory firm Institutional Shareholder Services on such proposals. Both the Covington and ISS publications have information useful both for those offering and receiving such proposals.

On a broader note, a new book by UCLA Law Prof. Stephen Bainbridge (h/t Prof. Eugene Volokh) notes that corporations that adopt such shareholder proposals might be buying a different problem: “When the corporation faces a true zero-sum decision, however, one must make a choice between the competing interests of stakeholders and shareholders. In such cases, the law requires directors to prefer shareholder interests. The Profit Motive defends that claim as both a descriptive and normative matter.” In that context, where corporations that work with trade associations and lobby for their corporate interests generally reap substantial financial rewards, while disclosing political contributions often results in negative publicity for the corporation from the ideologues who disagree with their speech, the shareholder proposals to make such disclosures would seem to pose a legal conundrum for the corporation involved. 

How To Give Responsibly After Disasters: Vox updated and reprints a backgrounder for donors on when and how to give responsibly after natural disasters like the recent Turkey earthquakes. Basic messages: information on effective disaster relief is scarce; donors don’t affect current needs much, but should consider longer-range assistance where others are not already stepping in; watch out for fakes.

Changing Pattern of Billionaire Philanthropy: Vox reports on the increase of Big Philanthropy using LLCs as vehicles rather than private foundations, using Texas billionaires Laura and John Arnold (Giving Pledge signers who have already pledged or given one third of their wealth) as exemplars. “In a cultural moment of increased suspicion about philanthropy, the move from foundations to LLCs can prompt some concern — and some anger. … An LLC allows for both grants through a foundation and politics and advocacy work through a separate organization. … If you’re a billionaire with limited philanthropic ambitions — or ones that happen to fit well with what foundations make possible — you might want to dodge the added complications of an LLC, which just sounds fishier to the public than a foundation ever will. But if you want to do as much good as you can, then in many cause areas, you will find yourself wanting flexibility a foundation doesn’t offer.”

Gen Z Begins Political Support, Wants More Info, Isn’t Locked Up By the Democratic Party: The youngest voters are now Generation Z, born after 1996, and 8 million of them were eligible to vote in the 2022 midterms. NPR summarizes some findings of a report by the Walton Family Foundation, about the youngest cohort of voters. Some of the report’s results:

• Most get their news from social media, and, possibly as a result, they have little confidence in the information they get.
• They want more and better information, but still turn to the Internet and social media, especially YouTube, to get more.
• Their thought leaders tend to be those active on social media, but their own opinions seem to vary from those leaders. For example, despite near constant complaints about the quality of education, more rated their education as “excellent” (37%) than “fair” or “poor” (34%). (NPR did not pick up on this point.)
• They “voted decidedly with Democrats” last year, by a 27% margin over Republicans, but only “30% of Gen Zers surveyed said they aligned with Democrats, compared to 24% for Republicans and 28% for independents.”   

The Walton report offered suggestions for campaigns to reach these voters:

• “Give Zoomers the information they want, in a way they understand it.”
• “To win support, show your work,” don’t rely just on messengers and messages.
• “Spend greater time experimenting with information dissemination.”
• “Make education an issue requiring urgent attention.” (Note: this Report was conducted by John Della Volpe, head of polling for Harvard’s Kennedy School Institute on Politics.)

Hasen on Prof. Ellen Aprill: UCLA Law Prof. Rick Hasen pens a festschrift honoring retired law Prof. Ellen Aprill (a participant in the First Tuesday Lunch Group) to appear in the Loyola of Los Angeles Law Review, Vol. 46, No. 4, 2023. Hasen, renowned in election law, unfortunately uses the occasion to view Aprill’s work pessimistically and narrowly, describing it mostly as an explanation of how tax-exempt organization law can be viewed as “the tool to kill what remains of campaign finance law”, but also mentions her broader gifts which have been used in myriad other ways to expand tax-exempt organization law:

In this brief Essay, I explain how Professor Aprill’s deep knowledge of nonprofit and tax law and her relentless intellectual honesty leads her (and us) to an unhappy place: a world in which many of the remaining regulations of money in politics could well be struck down as unconstitutional or rendered wholly ineffective by a Supreme Court increasingly hostile to the goals of campaign finance law and extremely solicitous of religious freedom. … Too few scholars write with Professor Aprill’s clarity, attention to detail, and sense of the public good. None can match her combination of grace, intellectual curiosity, and generosity of spirit. She is, to use a technical legal term, a mensch.

Characterizations, editorial comments, abbreviations and shorthand references are solely PPA Highlights author Barnaby Zall’s, and do not necessarily represent the views or positions of the Public Policy Legal Institute, the First Tuesday Lunch Group or their members and participants. Suggestions and corrections welcome.

Congress:

Will the New House Judiciary Investigations Subcommittee Have the Jurisdiction to Investigate IRS “Weaponization”?House Republicans have been telegraphing additional “oversight” investigations for months, but, as part of the negotiations to elect Kevin McCarthy as Speaker, the Judiciary Committee in particular has gained new scope, or has it? Republicans Outline Three Committee Investigations They Will Focus On (newsweek.com); House Republicans Plan a Committee on Censors and Snoops – WSJ; House GOP select panel will target DOJ and FBI and their ‘ongoing criminal investigations’ | CNN Politics; House Republicans propose sweeping committee to review government’s criminal investigations – ABC News. “The Committee on the Judiciary has been called the lawyer for the House of Representatives because of its jurisdiction over matters relating to the administration of justice in federal courts, administrative bodies, and law enforcement agencies.” About the Committee | House Judiciary Committee Republicans.  Yet House Judiciary Committee Chair Jim Jordan has already announced investigations that appear to go beyond just “law enforcement agencies. Rep. Jim Jordan Reveals His First Targets For His Investigation Into The Dept Of Education | House Judiciary Committee Republicans.

So what does this mean for the House Republicans’ announced intention to investigate the “weaponization” of the IRS? Clearly, the Judiciary Committee is not statutorily permitted to receive the personal tax return information allowed by IRC § 6103(f)(1) or (2) to be presented to the Ways & Means and Joint Tax Committees, but it could be authorized to do so by a specific House Resolution passed in closed session under 6103(f)(3). Interesting take from Jason Willick in Washington Post: Opinion | The House ‘weaponization’ committee could help protect democracy – The Washington Post “Without guardrails, the web-censorship arms race is likely to lead to escalation. Control of government will increasingly be used to intervene in democratic debate under the guise of expert knowledge. The House ‘weaponization’ committee might preoccupy itself with the pursuit of conspiracies, but it also has a chance to start hashing out what a treaty might look like.” 

The House Votes 221-210 to Claw Back More Than $70 Billion of New Funding for IRS: House Votes to Cut IRS Funding (January 10, 2023) H/t Katherine LaBeau. The legislation will die in the Senate over staunch opposition from Democrats, but gives the GOP an opportunity to relitigate what the party views as one of the most unpopular provisions in Democrats’ Inflation Reduction Act, which provided $80 billion in new funding to the IRS over 10 years to bolster a wide range of agency functions, including customer service, taxpayer assistance and criminal investigations. The vote is likely just the first skirmish in a battle that could well result in substantial cuts in the IRS’ $12.319 billion budget by the end of 2023.

Covington Client Alert on Implications of Pending Oversight Hearings on Chinese Communist Party: Speaking of congressional investigations, Covington’s election lawyers have issued a client alert for the new House Select Committee on China. https://www.cov.com/en/news-and-insights/insights/2023/01/preparing-for-investigations-by-the-new-house-select-committee-on-china Among other insights is special attention to educational institutions and some tax-exempt organizations: 

China’s Threats to Cybersecurity, Privacy, and Intellectual Property: Chinese infiltration into the American consumer space and access to American data has historically been a major focus for Chair Gallagher. Technology companies may be expected to provide answers about how they protect U.S.-based data and intellectual property from being accessed by the Chinese government.

China’s Influence in American Education: The Select Committee “will investigate the CCP’s attempts at infiltrating our academic institutions and the rise and proliferation of Confucius Institutes in the United States as organs of the CCP.” Universities and educational organizations should be prepared to respond to questions from the Select Committee.

Not mentioned by Covington, but almost certain to occur, is the rise of Chinese official efforts (both overt and hidden) to mobilize public opinion and advocacy organizations against the investigations. Although Russian propaganda may get the headlines, such Chinese activities have also been common in the past, including against Hong Kong democratization efforts. Can Americans Be Prosecuted for Believing the Widespread Chinese Disinformation Campaign About Coronavirus? – Vox PPLI (publicpolicylegal.com); How China Built a Twitter Propaganda Machine Then Let It Loose on Coronavirus — ProPublica

Sasse Leaves Senate for Univ. Presidency: Sen. Ben Sasse resigned from the Senate to become the President of the University of Florida. Before leaving, he penned an op-ed about the difference between “Pluralists vs. Zealots”: https://www.wsj.com/articles/americas-true-divide-pluralists-vs-zealots-power-democracy-partisanship-institutions-twitter-echo-chamber-neighbor-11672657710 

“Civic pluralists understand that ideas move the world more than power does, which is why pluralists value debate and persuasion. … The small but important role of government, for the civic pluralist, is a framework for ordered liberty. Government doesn’t give us rights, or meaning, or purpose or permission. It exists to protect us from the whims of mobs and majorities. 

“Political zealots reject this, holding that society starts and ends with power. Government in their view isn’t to protect from the powerful or the popular. More than anything else, zealots—on the right and the left—seek total victory in the public square. They believe that the center of life is government power. They preach jeremiads of victimhood and decline. On the left, they want a powerful bureaucracy. On the right, they want a strongman. But they agree on a central tenet: Americans are too weak to solve problems with persuasion. They need the state to do it.”

IRS

IRS Releases Guidance on Handling Contributions in Cryptocurrency: IRS Advises on Cryptocurrency Donations under Section 170. H/t Katherine LaBeau. On January 10, the IRS issued guidance that requires taxpayers who make charitable contributions of cryptocurrency to receive a qualified appraisal to qualify for a charitable deduction. Taxpayers may not determine the value of the donated cryptocurrency based on the value reported by a cryptocurrency exchange on which the cryptocurrency is traded. Significantly, if taxpayers fail to obtain a qualified appraisal before their taxes are due, they will not be able to deduct the contribution.

As a general rule, taxpayers are required to obtain a “qualified appraisal” when claiming a deduction for contributions of property of more than $5,000. However, a qualified appraisal is not required for donations of certain readily valued property, including cash, specific types of inventory, stocks traded on national exchanges, and other specified property. Or, a taxpayer may rely the “reasonable cause” exception – and still deduct the contribution – if they can show that they exercised ordinary business care in failing to obtain a qualified appraisal. 

Prior to the IRS’s most recent guidance, many thought the value of donated cryptocurrency could be reasonably ascertained based on the reported value on the exchange where the currency is traded and, therefore, taxpayers could rely on the reasonable cause exception. However, the IRS’s recent guidance confirms that a taxpayer must obtain a qualified appraisal to deduct donated cryptocurrency when the claimed deduction is more than $5,000. In reaching this conclusion, the IRS determined that no exception to the “qualified appraisal” requirement applies – including a “reasonable cause” exception – and, therefore, the use of a value reported on a cryptocurrency exchange does not satisfy the qualified appraisal requirement. 

IRS Releases January 2023 EO Update: Not a lot new in this Update; mostly updates to existing things, though there is a new Technical Guide on calculating self-dealing excise taxes.

CQ Research Deep Dive Into “Dark Money:” Pretty thorough for CQ, but does include some errors. E.g., in list of “A Variety of Groups Can Raise Campaign Funds”, “501(c)(3) – Charitable … nonprofit … Not required to disclose donors”. Dark Money: CQR (cqpress.com)

Soros Foundation “Network” Gave Billions For Advocacy: Remember the Marble Trust controversy? According to CNBC, George Soros-affiliated organizations gave more, including a stock contribution of $1.78 billion to a c3. Nonprofit financed by billionaire George Soros donated $140 million to political groups in 2021 (cnbc.com)

FEC

FEC Rejects Complaint That Google Suppressed Republican Emails, Finds Google Acted on Commercial Interests: From Wall Street Journal: 

The Federal Election Commission has dismissed a complaint from Republicans that Google’s Gmail app aided Democratic candidates by sending GOP fundraising emails to spam at a far higher rate than Democratic solicitations. The Republican National Committee and others contended that the alleged benefit amounted to unreported campaign contributions to Democrats. But in a letter to Google last week, the FEC said it “found no reason to believe” that Google made prohibited in-kind corporate contributions, and that any skewed results from its spam-filter algorithms were inadvertent.

The FEC action may muddy current litigation claims against Google, but appears to be consistent with recent FEC administrative rulings. Google counsels’ recent AOR efforts to educate the Commissioners about its commercial intent seem to have paid off. 

What Are the “Thorny” Coordination Issues in Prohibition on SuperPAC Involvement in Contested Primaries? Campaign Legal Center contends that recent agreement among House Republicans not to become involved in contested party primaries raises “thorny questions” and “egregious violations.” Isaac Stanley-Becker on Twitter: “Spokesmen for McCarthy and CLF tell me the Republican leader had no role in brokering the super PAC deal unveiled last night. Any involvement by McCarthy or his team would be an “egregious” violation, says @SGhoshCLC https://t.co/YrPb1c0WNp https://t.co/8rmdn43t4F” / Twitter

But wouldn’t that be a stretch of the coordination rules if the agreements were PAC to PAC or non-candidate (e.g., McCarthy in some other election district) to PAC? (See, e.g., “Run, Pat, Run” presidential campaign in 1987-88: ads urging congresswoman to run for President were placed everywhere except in her district).

And an ethics complaint was filed against House Speaker McCarthy for using House resources for political purposes. K McCarthy OCE Complaint (4854-4416-6472 (politico.com) Is there an issue if the agreement was an explicit quid pro quo – e.g., “vote for me for speaker and I’ll stay out of your primary?” (H/t Beth Kingsley) 

Respondent in CLC Complaint Hits Back: The Campaign Legal Center files quite a number of aggressive complaints that various election campaigns have violated federal campaign finance laws, and now a former congressional candidate shows the views from a different perspective. Liam Madden, who was the Republican candidate for Vermont’s congressional seat in the last election, tells Vermont media site VTDigger that: “there are some elements to this [earlier VTDigger] story that I feel haven’t been appropriately emphasized, the absence of which could give the audience a skewed interpretation of events. I would like to briefly offer these bits of context to make this story a smidge more balanced. Digger, to some extent, but much more so the folks they’ve interviewed, have given the impression that ‘Madden broke election law’ as though that was a definitive conclusion. It simply is not.” 

Madden actually raises some interesting challenges under recent caselaw: for example, he raises the issue of whether, under FEC v. Cruz for Senate, he can contribute money to his own campaign by having his son contribute $5,500 to his campaign. Madden’s real problem seems to be that he didn’t know enough about the “straw donor” rules (he apparently isn’t a lawyer or familiar with the intricacies of constitutional and election law). Madden sums up his views on being allegedly the victim of politicized and incomplete assertions in the CLC Complaint: “We have the creative energy to build a profoundly more beautiful political, economic and ecological commons, and to solve our enormous challenges with far more grace — if we don’t burn this cultural resource (our creative energy) seeking short-term returns of profit and political Pyrrhic victories.” 

FEC Will Hold Hearing on Audit Practices:

“In the course of addressing its administrative responsibilities, the Commission periodically reviews its programs to ensure that it is fulfilling its mission of enforcing and administering the Act while continuing to afford due process and efficiency to political committees. The purpose of this Notice is to reexamine the Commission’s policies and procedures regarding the auditing of political committees that do not receive public funds, and to give the regulated community and representatives of the public an opportunity to bring before the Commission comments and concerns about its audit process. The Commission will use the comments received to help determine whether internal directives or practices should be adjusted, and if so, how. The Commission is not, in this notice, seeking comment on its policies, practices, and procedures regarding audits of publicly funded committees.”

Federal Register Notice 2023-01 (fec.gov). 

Deep Dive on How “Dark Money” Networks Are Affecting RNC and Other Elections: Real Clear Politics has a relatively-balanced analysis (in the sense of “a pox on both your houses” from lots of people on various sides) with comments from Charlie Spies, Amy Kurz and others. Starts out complaining about Democratic efforts, but segues into analysis of Republican internal battles: “After a disappointing 2022 midterm showing, the tables have turned. Republicans are now grousing that they are being far-outspent and out-maneuvered by these opaque groups when it comes to get-out-the-vote efforts, an increasingly important aspect of modern campaigning since states have ushered in more early voting and flexible mail-in voting laws during and after the COVID pandemic.”

New ALI Restatement of the Law of Election Litigation: The American Law Institute has announced the third in its series of recent reports on election law: a Restatement of the Law of Election Litigation (h/t Derek Muller at ELB). “The Restatement’s guidance will provide a valuable resource for judges handling emergency election disputes.” The Reporters for the Restatement will be Prof. Lisa Manheim (Univ. of Washington Law, and a former clerk to Justice Kennedy) and Prof. Derek Muller (Univ. of Iowa Law). 

DoJ

Covington Updates Its FARA Primer: Covington released the 2023 version of its publication: “FARA: A Guide For The Perplexed.” “Like the once obscure Foreign Corrupt Practices Act, which prosecutors revived from hibernation some years ago, [the Foreign Agent Registration Act] is receiving its close-up. Prosecutors have brought more FARA prosecutions in the last several years than they had pursued in the preceding half century. In-house lawyers have scrambled to bone up on this famously vague criminal statute, at a time when the nation’s tiny bar of experienced FARA lawyers can still hold its meetings in the back of a mini-van.” (Note: it is unclear whether Rob Kelner actually holds meetings in the back of a mini-van and whose van it would be.)

DoJ Ends Investigation of Whether Brookings President Violated FARA: Add another to the growing roster of failed DoJ prosecutions and investigations of Foreign Agent Registration Act violations: retired Marine Major General John Allen, who resigned last June from heading the Brookings Institution after the FBI seized his electronic communications to investigate claims that he had lobbied on behalf of Qatar without registering. Seven months later, according to a statement from Allen’s attorney to CNN, ““We have been informed by the Department of Justice National Security Division and the U.S. Attorney’s Office for the Central District of California that the investigation of General John R. Allen (Ret.) has been closed and that no criminal charges will be brought against General Allen under the Foreign Agents Registration Act, or any other law, based on, or as a result of General Allen’s trip to Qatar in June 2017 or the government’s investigation of those events”.

Round-up of “Twitter File” Data Dumps: Fox News summarizes the (now) fifteen dumps of internal files from Twitter showing the tangled mess caused by FBI, CIA and other agency pressure on social media companies to censor and punish those who are thought to be risks to say the wrong things online. “Musk’s Twitter Files began going viral in December with each installment tackling what went on behind the scenes during the company’s most controversial actions. The Twitter Files have been reported by a rotation of independent journalists and writers, who were given unprecedented access to Twitter’s internal archives.” The dumps confirmed the existence of long-denied practices such as “shadow-banning” (Installment Two), the FBI as a “subsidiary” of Twitter and other companies (Six) or maybe a string-pulling controller (7-10), and Democrats promoting a false “Russian bots” narrative as a justification for wider censorship (14).Hopefully, with the flood of information slowing, there will be time for more level-headed and deep analysis that can balance the claims on both sides against whatever legitimate governmental interests might have supported the widespread governmental effort, and determine whether those efforts either remedied or exacerbated the claimed problems (or at least the claims that had some basis in reality).  

Courts

Supreme Court Debates Attorney-Client Privilege When Advice Is Mixed Legal and Non-Legal, As With Most Tax Issues Including Returns – Then The Court DIGs the Case, Leaving Tax Lawyers and Others Hanging: Tax-exempt organizations often seek legal advice about tax questions; indeed, tax-exempt practice is the clash between the First and Sixteenth Amendments, that is, between government power (to tax) and individuals’ power to block government. Tax-exempt lawyers often work with accountants and other professionals to prepare client returns and answer client questions. Attorneys believe that their advice is protected by the attorney-client privilege because they are lawyers; in practice, particularly tax-exempt practice, that isn’t necessarily true, simply because of the nature of tax-exempt practice. One traditional test is whether the client’s “primary” purpose in seeking advice was legal or non-legal, but the Circuits are split on whether that is the only test or whether a “significant purpose” is enough in cases where there is more than one purpose and they cannot be untangled. No. 21-1397, In re Grand Jury, asks the Court to decide that question.  https://www.supremecourt.gov/DocketPDF/21/21-1397/221600/20220421123354763_20220421-123022-95756360-00003407.pdf. 

The American College of Tax Counsel filed an amicus brief urging the Court to adopt the D.C. Circuit’s standard of a “significant purpose” from then-Judge Kavanaugh’s opinion in In re Kellogg Brown & Root,  756 F.3d 754, 757, 760 (D.C. Cir. 2014), rather than the Ninth Circuit’s “primary purpose” decision in In re Grand Jury. Microsoft Word – ACTC Amicus Brief(1534157237.10).doc (supremecourt.gov) As ACTC pointed out, sometimes lower courts have treated: 

”a lawyer’s assistance in preparing tax returns as effectively “non-legal.” See, e.g., United States v. Frederick, 182 F.3d 496, 501 (7th Cir. 1999); United States v. Davis, 636 F.2d 1028, 1043 & n.18 (5th Cir. Unit A Feb. 1981); United States v. Cote, 456 F.2d 142, 144-45 (8th Cir. 1972). Notwithstanding that tax-return preparation “requires some knowledge of the law, and the manner in which a tax return is prepared can be viewed as an implicit interpretation of that law,” courts have sometimes concluded that “the preparation of a tax return should not be viewed as legal advice.” In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th Cir. 1987). To support that conclusion, such courts have reasoned that accountants and other non-lawyers are permitted to assist in return preparation and/or that the contents of the return are disclosed to the government.”

During oral argument on Jan 9, the Justices discussed many elements of this circuit split, including the tax practice conundrum. As NYU Law Prof Stephen Gillers reports from SCotUSBlog, Justices debate test for attorney-client privilege when lawyer’s advice has multiple purposes – SCOTUSblog

Chief Justice John Roberts asked about an accountant who completes a complicated tax form. His work would not be privileged. But then the form is shown to a lawyer who identifies three items that are “kind of iffy” and bills $200,000. Would it all then be privileged? “To me,” Levin replied, “that’s … clearly privileged,” which prompted Justice Clarence Thomas to ask: “Is there any non-trivial role that a lawyer plays in the example the chief gave that doesn’t meet your test?” Only if the lawyer’s task “would be mechanical tax prep,” Levin replied.

Echoing Thomas’s question, Justice Ketanji Brown Jackson described a meeting that everyone agrees is over “a business decision … but the lawyer [in the room] adds a point. And you say, as long as it’s a legitimate point, that is good enough to require that the entire thing be privileged. … Why shouldn’t I worry that using your test now, we are going from one extreme to the other?” Levin replied “I don’t think that’s going to happen” and noted that it had not happened in the case now before the court, leading Jackson to point out that the case now before the court arose under the rule that Levin was asking the court to displace. …*

In its brief and oral argument, the government predicted that Levin’s test would make it possible for clients to privilege vast amounts of information by adding lawyers to a meeting or an email chain. All that would be required is the client’s good-faith claim that its purpose was at least in part legal advice. It would be easy to satisfy that requirement. In fact, no competent lawyer would fail to suggest it because there are no risks in doing so.

AND THEN, two weeks after oral arguments, the Court, without comment, DIG’d the case (dismissed the Petition as “improvidently granted,” ending the case without resolving the Question Presented). DIGs are rare, and leave lawyers hanging without a resolution other than the lower court decisions. So how are we to figure out this particular DIG? Fortunately, law Prof.  Steven Gillers has a full discussion of this DIG (unfortunately without discussing the tax lawyer aspect) in SCOTUSblog: 

The absence of the kind of disagreements we have become accustomed to see from the justices leaves one to wonder why the court did not simply write an opinion affirming the 9th Circuit [that is, the “primary purpose” test for seeking the lawyer’s advice rather than then-Judge Kavanaugh’s “significant purpose” test from the D.C. Circuit]. This is where the decision dismissing the appeal may carry future implications. The easy explanation is that the record, much of it shrouded in grand-jury secrecy, was not the right vehicle to permit the court to address the weighty question presented, whatever the answer. That is, there were not enough public-record facts to avoid an abstract treatment of the question. The more abstract, the less helpful to trial judges.

But there is another explanation. It is that a majority of the court wants to save the issue for a case whose public facts permit a serious evaluation of a question whose answer can expand secrecy and greatly affect the administration of justice. In other words, don’t read anything about the justices’ views into the dismissal. After all, they took the case in the first place, which signals an interest in the subject. They may simply have misread the case as cert-worthy.

A reversal could have led to denying the government documents relevant to its investigation of a grand-jury target even though those documents would not have been privileged but for the fact that the target’s consultation with counsel included incidental legal advice. What the dismissal tells us is that the court was not prepared to say, at this point and on this record, whether that would have been a just result in light of “reason and experience,” which is the standard in Federal Rule of Evidence 501 for defining privileges.

District Judge, Without Citing AFPF/TMLC v. Bonta, Rejects Compelled Speech Claim After California Attorney General Again Exposes Private Information: The Supreme Court in AFPF/TMLC v. Bonta, 141 S. Ct. 2373 (2021), found unconstitutional the California Attorney General’s “dragnet” program to gather lists of donors on IRS Form 990 Schedule B in part because the Schedule B disclosure requirement is compelled speech without a strong enough governmental interest or narrow enough tailoring of the remedy to outweigh the undoubted chill on freedom of association from the disclosure of confidential donor information. 141 S.Ct. at 2384. Injury from compelled disclosure of personal information is presumed, and no showing of substantial constitutional burden is required. 141 S.Ct. at 2388 (“The disclosure requirement ‘creates an unnecessary risk of chilling’ in violation of the First Amendment, Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 968 (1984), indiscriminately sweeping up the information.”), 2395 (dissent: “Today, the Court abandons the requirement that plaintiffs demonstrate that they are chilled, much less that they are reasonably chilled.”). 

Now, in Doe v. Bonta,  U. S. Judge Larry Alan Burns of the Southern District of California has dismissed a complaint by gun owners that a new law requiring gun owners to register and disclose sensitive personal information, including drivers license numbers and possibly Social Security Numbers as well as addresses and other information to the California Attorney General’s Office, which then discloses the information to “bona fide research institutions for the ostensible purposes of preventing gun violence, shooting accidents and suicide.” Slip op., 4-5. Institutions can be certified as bona fide by the U.S. Department of Education or “The Counsel [sic] for Higher Education Accreditation for the study of the prevention of violence.” The new law went into effect less than three months after the Supreme Court handed down AFPF.  As in AFPF, the individual plaintiffs had their sensitive personal information inappropriately disclosed on the Internet by the California Attorney General’s Office, along with 200,000 other Californians, though only for two days; none of the information was disclosed by the only two “bona fide”  research institutions which have been certified so far to receive the personal information (research groups at U.C. Davis and Stanford). Slip op., 8-9. 

Judge Burns’ opinion did not mention AFPF or any other similar recent Supreme Court First Amendment decision, but did say that “considering the categorical prohibition on publicly disseminating any personal identifying information that the DOJ has imposed on the research organizations, the enhanced risks Plaintiffs fear are no more likely than the risks posed by many other California laws that compel citizens to furnish publicly available personal information.” Slip op., at 16. “Considering that both research organizations follow DOJ and FBI computer security and protection protocols, the speculative possibility of a data breach occurring at UC Davis or Stanford is no more likely than one occurring at the DOJ, where the data originates.” Slip op., at 19.

This was the same argument that the Supreme Court rejected in AFPF. “While assurances of confidentiality may reduce the burden of disclosure to the State, they do not eliminate it. … Here the State’s assurances of confidentiality are not worth much.” 141 S.Ct. at 2388, n. *. “Such risks are heightened in the 21st century and seem to grow with each passing year, as ‘anyone with access to a computer [can] compile a wealth of information about’ anyone else, including such sensitive details as a person’s home address”, id. (cleaned up), as happened here.

There are undoubtedly significant differences between the factual situations in the two California Attorney General’s leaks, but the District Court’s failure to recognize AFPF undercuts its conclusions. Governments cannot do indirectly, by outsourcing research to “bona fide research institutions,” what they could not do directly, including imposing a “dragnet” on hundreds of thousands of citizens who have done no wrong. A government that has already failed to protect sensitive data cannot simply rest on an assertion that it and its transferees have safeguards. 

District Court Says First Amendment Does Not Protect False Statements About Where and When to Vote Intended to Deceive Prospective Voters: As UCLA Law prof. Rick Hasen writes in his book Cheap Speech: “it does not violate the First Amendment to make it a crime to lie about when, where, or how people vote.” Does that include telling voters they could vote by text or hashtag? In United States v. Mackey (h/t Law Prof. Eugene Volokh), Nicholas Giraufis, District Judge in the Eastern District of New York, said it does in this particular case, involving a conspiracy with knowledge of the falsity of its factual statements intending to mislead prospective voters, but not necessarily in other situations.

The 56-page opinion reviewed many conditions, considerations and theories before coming to its conclusion, but ultimately relied on exacting scrutiny review (thus providing some First Amendment protection to text-based lies, but not as much as strict scrutiny would have provided to a content-based distinction) and factual determinations. Slip op., 41-53. “To the extent that the conduct allegedly used to affect a conspired-about injury does implicate the First Amendment, the appropriate analysis is one of how the First Amendment interacts with verifiably factually false utterances made to ‘gain a material advantage’ in the context of election procedures. United States v. Alvarez, 567 U.S. 709, 723 (2012).” Giraufis pegged his analysis to former Justice Breyer’s concurrence in Alvarez, the “false valor” case. E.g., “this court will follow Justice Breyer’s lead on the appropriate mode of analysis for false speech that is entitled to less than complete First Amendment protection and apply intermediate scrutiny. Alvarez, 567 U.S. at 31-32 (Breyer, J., concurring in the judgment).” Slip op., 50.  

Law Review Article on Reining In “Shadow Docket” at the Supreme Court – Avoid Prior Pitfalls: For forty years, constitutional challenges to federal statutes had to be brought in D.C. (with the tradeoff being expedited consideration before the Supreme Court) before the rules were changed in 1976 after complaints about imposing more mandatory appeals on the Court. With the increase in “shadow docket” appeals (which are emergency consideration of mainly injunction appeals raised by government officials, resolved by summary action without regular briefings), some commentators want to require that, to be considered for expedited “shadow docket” appeals, cases would again have to be brought special three-District judge panels, “perhaps”  in D.C. Now law Prof. Michael Solimine from Univ. of Cincinnati has critiqued these calls for “old school” challenge restrictions, concluding: “the suggested reform could ameliorate some of the reforms of the shadow docket, but should be undertaken with an appreciation of the decidedly mixed past experience with similar institutional arrangements [pre-1976].”

Breaking Down the Subcategories of the Freedom of Association and How They Break Down in Practice: Freedom of association scholars are odd ducks. Part of the reason for that is the Supreme Court’s wandering explications of that freedom, a phrase not found in the First Amendment itself, but recognized for millennia as necessary infrastructure for enumerated rights. As Alexis de Tocqueville, one of the earliest chroniclers of American democracy, wrote in the 1830’s in his book Democracy in America: “In no country in the world has the principle of association been more successfully used or applied to a greater multitude of objects than in America.” Those of us who practice in public policy advocacy are quite familiar with NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958), a foundational reference in most litigation in this area: “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.”

            Now Duke Law Prof. John Inazu has posted a succinct review of recent law on the right of association in the blog Some Assembly Required (h/t IFS): 

the Supreme Court first recognized this right in its 1958 decision, NAACP v. Alabama. In doing so, the Court invoked unenumerated rights in its language and reasoning—an approach that it adopted a few years later in announcing a right to privacy in Griswold v. Connecticut (the decision that laid the groundwork for Roe v. Wade). Twenty-six years after NAACP v. Alabama, the Court split the right of association into different subsets in Roberts v. United States Jaycees: intimate association, expressive association, and (by implication) associations that were neither intimate nor expressive. In other words, intimate and expressive association are derivative rights of a right of association that is itself derivative of the right of assembly: they are made-up rights twice over. And they are largely untethered from history, theory, or doctrine.

Inazu uses this lead-in (and a prior column on “intimate association and the confusing and artificial lines that it has created around protections for groups that foster our sense of belonging and identity formation”) to make a simple point: the Court itself has created confusion over the right of association. But that’s not particularly novel. It might have been more interesting to follow his “made-up rights .. largely untethered from history, theory, or doctrine” to analyze what Dobbs and other recent Supreme Court doctrines might make of opinions that rely on THIS unenumerated right. Especially in light of recent donor protection cases such as Americans for Prosperity Foundation v. Bonta and other cases that rely fundamentally on the right of associational privacy, such as NAACP v. Alabama.  

D.C.

Do You Still Need An IRS Determination Letter to Get A DC Franchise Tax Exemption Certificate? Anecdotal evidence suggests that, in January, a 501(c)(4) client received their DC franchise tax exemption certificate using the Form 8976 on the FR-164 application in lieu of an IRS determination letter. This could be an isolated incident, but may indicate how DLCP will handle 501(c)(4) exemption applications.

States

New York Ethics and Lobbying Commission Launches New Online Ethics Training … And Requires More Lobbyists to Train: Wiley has a nice, succinct summary of the new online ethics training program created by the New York Commission on Ethics and Lobbying in Government (Q: can you “lobby” outside of govt? I guess: “Coach, put me in!” might fit.) Where before only “individual” lobbyists had to be trained in ethics, now others must, including the “Chief Administrative Officer” of an organization which is either a lobbyist or a lobbyist’s client. In effect as of January 18, 2023, and already-registered lobbyists must complete the training by March 18, 2023 and newly-registered lobbyists within sixty days of registering. 

General

New Index of Corporate “Wokeness Risk” Ranks 1,000 Corporations on How Likely They Are to Cancel Contracts or Deny Services Based on Views or Beliefs: The 1792 Exchange describes itself as a 501(c)(3) charity “whose mission is to develop policy and resources to protect and equip non-profits, small businesses and philanthropy from “woke capitalism,” to educate Congress and stakeholder organizations about the dangers of ESG (environmental, social, and governance) policies, and to help steer public companies in the United States back to neutral on ideological issues”. The name refers to the year the American stock exchange was founded “to reestablish trust and free exchange in a volatile marketplace.” Now the 1792 Exchange has released a study of what one might consider its likely targets, meaning corporations with good, neutral or unfavorable records on wokeness issues: “1792 Exchange has assessed 1,000+ companies’ policies, practices, and other relevant criteria to determine the likelihood a company will cancel a contract or client, or boycott, divest, or deny services based on views or beliefs.” Each report appears to be about two pages per company, covering the organization’s analysis of six factors. For an example of reports on Amazon (high risk), Twitter (medium risk) and Meta/Facebook (high risk), see this search: https://1792exchange.com/pdf/?companies=561%2C2067%2C672

Controversial New Study Finds Digital Advertising Has “Modest” Effect, Same As What Others Have Found For Radio/TV Ads: Nature Human Behavior publishes big new study by academics (Yale, MIT, NYU) and New York (mostly) consultants that finds: 

We present the results of a large, US$8.9 million campaign-wide field experiment, conducted among 2 million moderate- and low-information persuadable voters in five battleground states during the 2020 US presidential election. Treatment group participants were exposed to an 8-month-long advertising programme delivered via social media, designed to persuade people to vote against Donald Trump and for Joe Biden. We found no evidence that the programme increased or decreased turnout on average. We found evidence of [small] differential turnout effects by modelled level of Trump support: the campaign increased voting among Biden leaners … and decreased voting among Trump leaners … An important but exploratory finding is that the strongest differential effects appear in early voting data, which may inform future work on early campaigning in a post-COVID electoral environment. Our results indicate that differential mobilization effects of even large digital advertising campaigns in presidential elections are likely to be modest. 

Not said: what usually works these days is door-knocks and peer2peer contacts; ads of various types, not so much. As Politico just reported: 

Not said: what usually works these days is door-knocks and peer2peer contacts; ads of various types, not so much. As Politico just reported: 

The rate of return on individual appeals is falling compared to a few years ago, as candidates and outside groups find themselves targeting the same pool of donors. And congressional campaigns spent more on fundraising as a share of their total spending in 2022 than in the previous election cycle, according to a POLITICO analysis of FEC records. Doubling down on mass emails and texts is still a way to raise significant cash, and federal candidates and committees raised a combined $3.3 billion on ActBlue and WinRed, the parties’ primary online fundraising platforms, during the 2022 cycle. But people who work in the field are growing concerned that fundraising appeals are crowding out newsletters, volunteer efforts and other forms of communication amid the insatiable and never-ending hunt for cash.

Did the “Bloody 8” Indiana Congressional Election in 1984 Really Cause the Current Political Dysfunction?  Politico deep dive about how the Dems “won” the 1984 election in Indiana’s 8th Cong. District, but ultimately lost the district for later elections. The ‘Stolen’ Election That Poisoned American Politics. It Happened in 1984. – POLITICO  Though well-written and persuasive, the article downplayed the many similar situations throughout history; e.g., only mentioning once the 1960 Kennedy/Nixon election (cue stories about West Virginia and Texas) even though that arguably created the Goldwater era that boosted Ronald Reagan and a generation of conservative Republicans. 

In wake of Hamline Univ. Professor Firing, Muslim Public Affairs Council Points Out That Assuming All Muslims Reject Depictions of Muhammad Is Incorrect and May Perpetuate Harmful Stereotypes: “It is with great concern that the Muslim Public Affairs Council (MPAC) views the firing of an art professor, Erika López Prater, from Hamline University on the grounds of showing a fourteenth-century painting depicting the Prophet Muḥammad. … As a Muslim organization, we recognize the validity and ubiquity of an Islamic viewpoint that discourages or forbids any depictions of the Prophet, especially if done in a distasteful or disrespectful manner. However, we also recognize the historical reality that other viewpoints have existed and that there have been some Muslims, including and especially Shīʿī Muslims,  who have felt no qualms in pictorially representing the Prophet (although often veiling his face out of respect). All this is a testament to the great internal diversity within the Islamic tradition, which should be celebrated.” Statement of Support for Art Professor Fired from Hamline University – Muslim Public Affairs Council (mpac.org) (h/t Law prof. Eugene Volokh)

More Information Supports Theory That Reliance on Small Donors Fuels Extremism: Law Prof. Rick Pildes shares some of his posts arguing that theory while highlighting Wall Street Journal article on why big donors can’t reel in extremists who have sufficient small donor bases. “Why Big-Money Donors Can’t Reel In GOP Rebels” – Election Law Blog; Why Big-Money Donors Can’t Reel In GOP Rebels – WSJ

Will Melinda French Gates Go Her Own Way? Continuing recent highlights of billionaire female philanthropists, the Wall Street Journal highlights the post-divorce activities of Melinda Gates, which might cause significant changes in the Gates Foundation’s activities. Melinda French Gates Adjusts to a New, Solo Role – WSJ

Think Facial Recognition Issues Won’t Affect You? Don’t Go To Madison Square Garden If Your Firm Is Suing Them:  Techie media coverage in Ars Technica includes this warning about what Steptoe’s tech expert Stewart Baker called “the dumbest corporate policy of the year,”: “Madison Square Garden Entertainment has begun using facial recognition technology to identify any visitor to any of its venues—including Radio City Music Hall—who is involved with any law firm that is actively involved in litigation against MSG Entertainment.” MSG defends using facial recognition to kick lawyer out of Rockettes show | Ars Technica; MSG’s Facial Recognition at Radio City Gets Girl Scout Mom Kicked Out – NBC New York; https://nypost.com/2023/01/13/third-nyc-lawyer-booted-from-msg-by-james-dolans-facial-recognition-tech/

And now Rolling Stone reports (h/t IFS) several New York politicians, including House Judiciary Ranking Member Jerry Nadler, protested outside MSG and sent a letter decrying the use of facial recognition for “legal enemies.” 

William Consovoy Dies From Brain Cancer at 48: NYT (h/t Rick Hasen).”William Consovoy, a rising star within the conservative legal firmament who made his name arguing landmark cases on election law and affirmative action, often before the Supreme Court, and who represented President Donald J. Trump in his effort to keep his tax returns private, died on Monday at his home in Falls Church, Va.” 

Characterizations, editorial comments, abbreviations and shorthand references are solely PPA Highlights author Barnaby Zall’s, and do not represent the views or positions of the Public Policy Legal Institute, the First Tuesday Lunch Group or their members and participants. Suggestions and corrections welcome.

IRS

IRS Reduces Massive Backlog, but TIGTA Still Not Happy: Federal News Network reports that the Internal Revenue Service “processed more of its tax return inventory in the last 12 months than at any 12-month period in its history” and reduced its tax form processing backlog from a high in June of 20.5 million returns to 10.5 by the end of October. But the Treasury Inspector General for Tax Administration reported that the agency still has a ways to go and backlogs will continue through 2023.

IRS Leaks 112,000 990-T Forms AGAIN: Last September the IRS mistakenly put 120,000 Form 990-Ts filed by individual online; only 990-Ts filed by exempt organizations are supposed to be posted online. Those were taken down. But Bloomberg Tax reports that now 112,000 of them were AGAIN put online by IRS vendor Accenture, which mistakenly put up most of the original list instead of a filtered list. The second leak was apparently on November 23, and a “third party” notified the Service on December 1 of the error. “‘The IRS is continuing to review the situation to identify opportunities to establish additional controls and strengthen existing controls to protect taxpayer information,’ said Treasury spokesperson John Rizzo.”

IRS Funding Still Controversial As Republicans Prepare to Take The House: The Wall Street Journal reports that the IRS budget fight heats up as Republicans look to annual funding talks with Democrats over broader spending package. “The dispute previews intense partisan fights next year about the size and reach of the tax agency, with Democrats leaning on the IRS to boost enforcement and tax revenue and Republicans looking to limit its expansion.”

Republicans “Celebrate” a 2% Cut to IRS Modernization Funding in the Omnibus: As a follow-on to the prior item, so claims The Hill.  Apparently, it’s a ploy to entice Republicans concerned about the $1.7 trillion omnibus temporary funding bill: “Senate Republican Whip John Thune (S.D.) on Tuesday called that funding reduction a ‘selling point’ with Republicans who are on the fence about voting for the omnibus. But GOP sources acknowledge that the funding cut is relatively insignificant compared to the $80 billion the IRS received from the Inflation Reduction Act, which passed Congress this summer under the budget reconciliation process without a single Republican vote.”

Latest Edition of Steven Sholk’s Annual Guide to Election Year Activities By 501(c)(3) Organizations Is Available: Invaluable resource for practitioners. 650 pages of dense summaries.

Will the IRS Delay of New 1099-K Requirements Affect Its Announcement of a Crack Down on Resellers of Taylor Swift “Eras” Concert Tickets? The American Rescue Plan Act of 2021 lowered the reporting threshold for issuing a third-party facilitator 1099-K forms from $20,000 to $600 per transaction. Although the Service just announced a delay in implementing the 1099-K for gig workers, it also announced a big push against scalpers who don’t report their reselling of the hottest (and hardest to get) concert tickets, including Taylor Swift’s “Eras” concert tour. Tickets to the first show in Glendale, Arizona, are going for as much as $9,000, so the really big scalpers might trigger the existing requirement anyway.

FEC

Lindenbaum 2023 FEC Chair, Cooksey Vice-Chair: The officers of the Federal Election Commission are elected each year, with the seat rotating between sitting Commissioners. On December 15, the Commission elected Dara Lindenbaum as Chair and Sean J. Cooksey as Vice Chairman for 2023.

FEC Legislative Wishlist: The basic federal campaign finance statute, the Federal Election Campaign Act, is complex and sweeping, but not complete; more precisely, conditions and campaigns change constantly, and the Federal Election Commission often requires Congressional action to keep up. The FEC’s most recent legislative wishlist, approved on December 15, includes highest and high priorities, plus “other improvements.” Highest priorities include: salary increases for FEC staff, amending the organic statute to legitimize the administrative fines program that saves money and staff time, and expanding the “foreign national” prohibition to include “substantial assistance” and to cover state and local ballot initiatives and recalls. Media coverage focused on a lower priority “stop scam PACs” proposal, a long-time goal now claimed to be made more urgent by concerns about massive Trump fundraising; though that would be fairly messy, the FEC’s 1994 regulatory response to a petition for rulemaking by “Citizens Against David Duke” demonstrated that it would be possible to do more than nothing.

CONGRESS

Did Ways & Means Democrats Mess Up What Should Have Been a Triumphal Release of Trump’s Tax Returns? The House Ways & Means Committee has fought for years to review the former President’s tax returns, using the rationale that it needed them to review the IRS’s internal policy of automatically auditing a sitting President’s taxes. After receiving the returns, the Committee, on a hurried party-line vote, decided to release six years of returns to the public after Christmas. NYU Law Prof. Daniel Hemel has a nice post in Lawfare that analyzes the events and contends that the W&M Dems really messed up what should have been a blockbuster release. “In short, the IRS appears to have fallen down on the job. But Democrats on the Ways and Means Committee — who promised to carry out a thorough review of the IRS’s presidential audit program, yet instead made a hair-trigger decision to release Trump’s tax returns — fell down on the job as well. And as a consequence, a pox on both Trump and the IRS has become a pox on the House too.” The always-quotable Prof. Josh Blackman goes further: “Did the Ways & Means Committee play the Supreme Court on Trump’s tax returns?” “Going forward, the Court may be less likely to give deference to a House Committee seeking to perform oversight of the executive branch. The Ways & Means Committee may have won the battle, but the prognosis for the war looks bleak.”

FARA Reform Bills Move (Slightly): Nobody is happy with the venerable Foreign Agents Registration Act, which requires those who represent foreign countries to register with the Department of Justice. DoJ’s attempts to expand FARA through prosecutions have failed miserably, including with recent high-profile acquittals. Prior recent attempts to amend the almost century-old law have also sputtered out.

Now, however, Covington reports that legislative efforts are gaining speed, and “one provision nearly became law.” DoJ announced that it would support the complete elimination of the FARA registration exemption for those who register under the Lobbying Disclosure Act and would draft its own legislative recommendations.  The Senate has passed a pair of bills to tighten the LDA exemption and to provide the DoJ’s FARA Unit with more enforcement tools. But not everything is smooth sailing for FARA reform: a bipartisan Senate amendment to the National Defense Authorization Act to revise the LDA exemption was dropped in the bill’s conference report.  

Is Arabella the Queen of “the liberal pop-up group ecosystem”? A new descriptor has entered the discussion of public policy advocacy organizations: “the liberal pop-up group ecosystem.” The Washington Examiner offers a critique of the Congressional Integrity Project, a new project in “the liberal pop-up group ecosystem” powered by grants from Arabella Advisors-managed progressive organizations. H/t to law Prof. Rick Hasen (!). “The newly relaunched Congressional Integrity Project will include rapid response, investigative researchers, pollsters and eventually paid media designed to put Republicans on the defensive”, Politico reported. “It’s designed to serve as the party’s ‘leading war room’ to push back on House Republican investigations, [founder Kyle] Herrig said in an interview. He added that the project would ‘investigate the investigators, expose their political motivations and the monied special interests supporting their work, and hold them accountable for ignoring the urgent priorities of all Americans in order to smear Joe Biden and do the political bidding of Trump and MAGA Republicans.’” The organization is not alone in focusing on the upcoming investigations: “For the final two years of Biden’s term, Republicans will be aided in their oversight push by a coalition of outside conservative research groups that have already mapped out potential targets and started digging into issues ranging from Hunter Biden’s business dealings to immigration policy.”

DEPARTMENT OF JUSTICE

Prosecutors File Both Civil and Criminal Campaign Finance Violation Charges Against FTX Founder Sam Bankman-Fried: Sam Bankman-Fried, a young cryptocurrency exchange mogul who headed major firm FTX, may have been one of the biggest political contributors of 2022, with (according to his own announcements) about $80 million in campaign contributions between Democratic and Republican candidates. Federal authorities have now filed both criminal and civil charges against him for campaign finance violations. CNBC has a roundup and history.

Serious Questions for the FBI on Social Media Censorship Requests Heightens Concern Over Whether the FBI Itself Broke Federal Civil Rights Laws: If you asked informed Americans whether the First Amendment can be applied to private social media companies like Twitter, probably the vast majority will say no. After all, as the Supreme Court noted three years ago, a “private entity is not ordinarily constrained by the First Amendment.” Manhattan Community Access Corp. v. Halleck , 587 U.S. ––––, ––––, 139 S.Ct. 1921 1944, 204 L.Ed.2d 405 (2019). But that’s not always the case, and one such situation is when the government is so entangled with the allegedly unconstitutional activity that the private company becomes a “state actor.” Or as the Court noted in Biden v. Knight First Amendment Inst. at Columbia Univ., 141 S.Ct. 1220, 1226 (Mem.) (2021),

For example, although a “private entity is not ordinarily constrained by the First Amendment,” Halleck, 587 U.S., at ––––, ––––, 139 S.Ct., at 1930, 1944, it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint. Ibid. Consider government threats. “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.” Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 68 (1963). The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. See ibid. ; Blum v. Yaretsky , 457 U.S. 991, 1004–1005 (1982). Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.

Which adds a distinct dimension to the current woes of the FBI.

The release of the “Twitter Files” documented extensive requests from the FBI to Twitter requesting “moderation” (censorship or banning) of various accounts, for which the FBI “reimbursed” Twitter $3.4 million and which the FBI complained to Twitter about if the request wasn’t satisfactorily responded to. A growing number of scholars are now warning that this FBI-Twitter relationship, and similar backdoor requests to other social media outlets to block or punish speech on line, could indicate federal civil rights crimes under 18 U.S.C §§ 241 (conspiracy to violate constitutional rights) and 242 (deprivation of constitutional rights). Instead of forthrightly facing these concerns, the FBI is ducking and weaving.

CNN believes that there’s nothing there: “Elon Musk is misleading the public — again. The embattled billionaire, perhaps seeking to distract from the chaos he has wrought at his social media company, is making grossly misleading claims about Twitter and the FBI. And those claims are being blindly amplified to millions by Fox News and the rest of the powerful right-wing media machine which seems to have no interest in the pesky truth and instead has repeatedly shown they’ll contort stories to fit preconceived and erroneous narratives.” The network also reported that FBI executives are denying an express tie to the Hunter Biden story: “But so far, none of the released messages explicitly show the FBI telling Twitter to suppress the story. In fact, the opposite view emerges from sworn testimony by an FBI agent at the center of the controversy. And in interviews with CNN, half a dozen tech executives and senior staff, along with multiple federal officials familiar with the matter, all deny any such directive was given.”

But, of course, that sort of express “directive” is rarely found. Here are two IRS examples from the tax-exempt organization world in one blog post: a “random” audit driven by White House pressure, and the Lois Lerner 2010 targeting scandal, supposedly sparked by an “increase” in IRS Form 1024 applications by “Tea Party” groups, but really caused by pressure on Lerner’s IRS Division: “everyone’s screaming at us to do something about Citizens United.” The common thread in many of these “no express directive” situations? A lot of pressure on an agency to “do something” leads an agency to do something that it constitutionally couldn’t do, so it tries to be “creative.”

There’s actually a lot of FBI pressure on Twitter to consider even without a directive about the Hunter Biden laptop. The December 23, 2022, CNN story acknowledges, for example, specific requests by FBI agent Elvis Chan to Twitter for review that do not involve Hunter Biden’s laptop: “Among the messages given the most attention from Musk and other critics are a series of emails between Roth and Elvis Chan, an FBI special agent based in San Francisco, where he focuses on cybersecurity and foreign influence on social media. On October 13, the day before New York Post story published, Chan instructed Roth to download ten documents on a secure portal. Roth responded, ‘received and downloaded – thanks!’” At least two of those documents were sent as “potential evidence of election-related crimes, such as voter suppression activities.”

“Voter suppression” is one of those phrases which is highly-elastic, stretching to cover a lot of things which are highly-protected by the First Amendment. Here, a federal agency asked a social media company to block speech on the basis that it could be “potential evidence of election-related crimes.” The FBI says it does not tell the company what to do, but “provides critical information to the private sector in an effort to allow them to protect themselves and their customers.” No pressure there?

As Robby Soave noted in Reason (h/t IFS): “FBI agents communicated regularly with content moderators at Twitter, and frequently asked for tweets to be taken down for allegedly violating the platforms’ policies against election-related misinformation. The conversations were so numerous—including emails and weekly meetings—that a top Twitter staffer came to describe the relationship between the company and law enforcement as ‘government-industry sync.’” State actors cannot run roughshod over constitutional rights in the name of efficiency; even law enforcement agencies must respect statutes and constitutional controls in place to prevent that. As the Supreme Court recently reiterated: “the prime objective of the First Amendment is not efficiency.” AFPF/TMLC v. Bonta, 141 S. Ct. 2373 (2021), quoting McCullen v. Coakley, 573 U. S. 464, 495 (2014).

GW Law Prof. Jonathan Turley has a rundown of polls and other Twitter File-related trends that indicate significant interlocking activity: “Despite the refusal of many in the media to cover the Twitter files, nearly two-thirds of voters believe Twitter shadow-banned users and engaged in political censorship during the 2020 election. Seventy percent of voters want new national laws protecting users from corporate censorship. … On Friday, Twitter released additional information showing that the FBI and CIA actively pushed for censorship, supplying lists of accounts to be suspended or banned. … The evidence continues to establish a system of censorship by surrogate or proxy.  While the First Amendment applies to the government and not private corporations generally, it does apply to agents or surrogates of the government. Twitter now admits that such a relationship existed between its former officials and the government.”

Columbia Law Prof. Philip Hamburger has a similar take in the Wall Street Journal:

Amid growing revelations about government involvement in social-media censorship, it’s no longer enough to talk simply about tech censorship. The problem should be understood as gov-tech censorship. The Biden White House has threatened tech companies and federal agencies have pressed them to censor disfavored opinions and users. So it’s time to ask about accountability.

Will there be legal consequences for government officials, for the companies, or for their personnel who cooperate in the gov-tech censorship of dissent on Covid-19, election irregularities or other matters? Cooperation between government officials and private parties to suppress speech could be considered a criminal conspiracy to violate civil rights. The current administration won’t entertain such a theory, but a future one might.

National Review’s Andrew McCarthy, a former prosecutor, echoes Hamburger’s assessment about using 18 U.S.C. § 241, the civil rights conspiracy statute (“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same …”), in these cases: “If I as the prosecutor encourage the private person to steal the documents and bring them to me, … the law would deem the private person to be an agent acting on behalf of the government. … [T]he unconstitutionality of government suppression of free speech is well known and basic.”

Now add in the fact that the FBI paid Twitter almost $3.5 million for its “cooperation:”

In an email dated Feb. 10, 2021, an unidentified Twitter employee told then-deputy general counsel Jim Baker and then-general counsel Sean Edgett that “we have collected $3,415,323 since October 2019!” The email, published by independent journalist Michael Shellenberger, explained that Twitter’s Safety, Content & Law Enforcement (SCALE) division had instituted a “reimbursement program” in exchange for devoting staff hours to “processing requests from the FBI.” … The bureau would often send the company lists of users they wanted investigated for terms of use violations.

Why would this be important? Because it would add 18 U.S.C. § 242 (deprivation of civil rights by “state actor”) to the § 241 civil rights conspiracy claim discussed above. And the FBI was not at all reluctant to pressure the company, as recently as August 2022, using phrases like “forehead knockers” (“situations in the FBI view there is no reason why we would not have complied”), and “Twitter’s lower rate of compliance in comparison to other platforms.” A capable prosecutor could easily consider this an agency relationship for purposes of determining whether an action was truly “private sector choice” or a constitutionally-circumscribed “state actor” relationship. See, e.g. United States v. Classic, 313 U.S. 299, 326 (1941) (“Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.”). The constitutional concerns are expanding.

And the FBI does this routinely. In a statement to Fox News about declining to reveal other “reimbursement” payments to social media outlets other than Twitter, an FBI spokesperson said: “In a statement shared with Fox News, an FBI spokesperson said, ‘The correspondence between the FBI and Twitter show nothing more than examples of our traditional, longstanding and ongoing federal government and private sector engagements, which involve numerous companies over multiple sectors and industries. … It is unfortunate that conspiracy theorists and others are feeding the American public misinformation with the sole purpose of attempting to discredit the agency.’” Except, of course, these examples involve highly-protected political speech and action, not just commercial activities, which are usually protected by … the FBI’s expertise and investigations, which doesn’t seem to have happened with these back channel “recommendations” (at least not on the basis of the explanations given so far). It isn’t “conspiracy theorists … feeding the American public misinformation with the sole purpose … to discredit” the FBI; it’s legitimate investigation of serious concerns about whether federal civil rights laws were broken. These concerns should be treated with far more care than has been shown by the FBI’s “Look! A Squirrel!” and “we didn’t give an express directive” responses.

COURTS

D.C. Circuit Denies Rehearing En Banc in Challenge to FEC’s Use of Prosecutorial Discretion to Dismiss Complaints: In CREW v. FEC, No. 19-5161, (D.C. Cir. 2021), the D.C. Circuit denied rehearing en banc of a decision rejecting the appeal filed by Citizens For Responsibility And Ethics In Washington seeking to keep an FEC Complaint alive after three Commissioners voted to dismiss the Complaint. The Commissioners, following Circuit precedent, issued a lengthy explanation of their decision not to begin enforcement proceedings, but also added an independent determination that they would exercise prosecutorial discretion to avoid a needless use of agency resources. CREW wanted the courts to recognize prosecutorial discretion only when it was the only or primary reason for the dismissal, but not enough sitting appeals court judges agreed with that theory. 

Buckeye Institute Sues Under AFPF/TMLC v. Bonta to Declare the Collection of Schedule B Unconstitutional: The Supreme Court in AFPF/TMLC v. Bonta, 141 S. Ct. 2373 (2021), found unconstitutional the California Secretary of State’s “dragnet” program to gather lists of donors on IRS Form 990 Schedule B in part because the Schedule B compelled speech (the disclosure of confidential donor information) without a strong enough governmental interest or narrow enough tailoring of the remedy to outweigh the undoubted chill on freedom of association. “A substantial relation [to an important governmental interest] is necessary but not sufficient to ensure that the government adequately considers the potential for First Amendment harms before requiring that organizations reveal sensitive information about their members and supporters. Where exacting scrutiny applies, the challenged requirement must be narrowly tailored to the interest it promotes, even if it is not the least restrictive means of achieving that end.” 141 S.Ct. at 2384. (Three of the six Justices in the majority opinion filed a concurrence saying that this “exacting scrutiny” standard was too lax, and would have preferred strict scrutiny.)

The Court found that Schedule B was essentially useless to California’s efforts to protect against charitable fraud: “Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California’s fraud detection efforts. It does not. To the contrary, the record amply supports 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.’” Similarly, the IRS has been trying to get rid of Schedule B since 2016, noting in the May 28, 2020, Federal Register that it neither needs nor uses Schedule B. In fact, as it noted in an internal August 2018 briefing, the IRS simply can’t use the Schedule B to police charitable fraud in almost any modern circumstance: “IRS does not systematically use Schedule B; the lack of a Taxpayer Identification Number makes the data unsuitable for electronic matching.”

Now the Buckeye Institute, an Ohio charity, with help from the Institute for Free Speech, is suing to have the Schedule B filing requirement declared unconstitutional:

By compelling the disclosure of Buckeye’s contributors, Defendants unlawfully and substantially deprive Buckeye and its supporters of the free association and assembly rights secured by the First Amendment to the United States Constitution. Section 6033(b)(5)’s compelled disclosure regime is not substantially related to any sufficiently important government interest. No substantial relation exists between the wholesale disclosure of substantial donors through Schedule B and the government’s interest in enforcing compliance with the tax code. Moreover, the government has readily available, more narrowly tailored alternatives to upfront collection of all names and addresses of substantial contributors.”

Ken Griffin Sues IRS Over Disclosure of His Tax Returns: Ken Griffin, billionaire head of Citadel hedge fund, had his taxes disclosed in a supposedly-anonymous leak of wealthy Americans’ confidential personal tax information to tax-exempt media site ProPublica in June 2021. One of the more interesting victims of the leak, apparently Griffin had been paying a lot in taxes throughout the leaked period, as Forbes reported: “According to the data, Griffin, who is asking for a trial by jury, averaged an annual income of nearly $1.7 billion from 2013 to 2018 and paid an average effective federal income tax rate of 29.2%—making him the fourth-biggest earner and second-biggest taxpayer in the country.”

Why did ProPublica (whose mission is “To expose abuses of power and betrayals of the public trust by government, business, and other institutions”) single him out for multiple follow-up articles? “In an essay published alongside the first article in the Secret IRS Files series, ProPublica’s editor-in-chief, Stephen Engelberg, and its then-president, Dick Tofel, explained that ProPublica was publishing the tax information “quite selectively and carefully” because “we believe it serves the public interest in fundamental ways, allowing readers to see patterns that were until now hidden.” In other words, because ProPublica thought it was in the public interest to reveal what federal law clearly makes confidential. 

Now Griffin has sued the IRS for failing to do what it is legally required to do: protect his confidential information. His Complaint says that: “Despite annual audits, TIGTA—for more than a decade—continued to find systemic failures by the IRS to establish appropriate administrative, technical, and physical safeguards to adequately protect the unlawful disclosure of taxpayers’ confidential tax return information.” ¶ 9.

Griffin’s main attorney is Derek Shaffer, from Quinn Emanuel’s D.C. office, who was the prevailing attorney in AFPF/TMLC v. Bonta, 141 S. Ct. 2373 (2021), which found the California Attorney General’s office violated the First Amendment privacy and associational rights of donors; as a result of its loss in that case, California paid Shaffer’s firm $8 million in attorneys fees. Although the statutory damages for tax information leaks is only $1,000 per violation, the statute also authorizes an award of attorneys fees.

Will Justice Jackson Lead A “Third Wave of Progressive Originalism” On The Supreme Court? Prof. Lawrence Solum, of the University of Virginia Law School, has a fascinating and new analysis of current jurisprudence in the Balkinization blog (h/t Prof. Jonathan Adler), that Justice Ketanji Brown Jackson is now a thought leader among the Supreme Court’s liberals, and indeed among progressive legal thinkers in general:

A third wave of progressive originalism is now well underway.  Justice Jackson is already the de facto leader of a group of scholars, lawyers, and judges who understand the dangers that judicial supremacy and living constitutionalism pose to democracy and equality—given the reality that conservative justices will dominate the Supreme Court for at least a decade or two.  Justice Jackson’s originalism is a direct and forceful response to the conservative justices’ increasing reliance on a selective mix of history, tradition, and precedent to undermine the original meaning of the Constitution’s text, while claiming to be “originalists.”

Ironically, the fiercest critics of progressive originalism are not conservatives.  Instead, it is progressives themselves who have gone on the warpath.  … What these critics and their many supporters share is an opposition to Justice Jackson’s embrace of originalism’s progressive potential, both as a counter to conservative living constitutionalism and as the key to unlocking the emancipatory power of the Fourteenth Amendment.

The progressive originalism of the twenty-first century has deep roots, starting with the first wave of progressive originalism led by Frederick Douglass.  The rediscovery of abolitionist constitutionalists like Douglass and his allies, has highlighted an important set of ideas that anticipate today’s public meaning originalism.  Douglass’s devastating criticism of Dred Scott was simple: it is the public meaning of the constitutional text and not the racist intentions of some of its authors that must be treated as the binding source of constitutional law.  The abolitionist constitutionalists never gained the upper hand on the Supreme Court, but their constitutional vision was enshrined in the Reconstruction Amendments. …

Justice Jackson sees the obvious: progressives must oppose a conservative juristocracy.  And the most effective way to do that is to expose the gap between the outcomes that conservatives prefer and the original public meaning of the constitutional text.  Justice Jackson is in the vanguard of the third wave of progressive originalism, and she is not alone.  Progressive constitutional scholars like Akhil Amar and Jack Balkin at Yale, and progressive lawyers like Elizabeth Wydra at the Constitutional Accountability Center, have labored for decades to lay the foundations for a progressive and originalist resistance to a conservative juristocracy. …

If conservative judges are making selective use of history to make originalist arguments for conservative results, then the only way to show this is to make better originalist arguments to the contrary.  Failure to make progressive originalist arguments effectively concedes that the constitutional text supports conservative result, legitimating rather than undermining the conservative juristocracy. …

Progressives need to support Justice Ketanji Brown Jackson, not undercut her.  Their reluctance to do so may stem from the fact that good faith originalism offers neither progressives nor conservatives everything they want by way of results.  There is a price to paid for good faith originalism.  But juristocracy, whether conservative or progressive, is a profound threat to the rule of law.  Justice Jackson is right to oppose it.

Should Kagan and Sotomayor Retire Because “the Senate Is Broken”? So argues the always-quotable Ian Milhiser in Vox. “Realistically, both justices could probably look forward to a decade or more of judicial service if they desire it. But even a mighty Supreme Court justice cannot overcome the merciless math facing Democrats in a malapportioned Senate that effectively gives extra representation to Republicans in small states.”

STATES

Minnesota Law Limiting Legislators Working for Lobbying Organizations Starts Jan. 3: Minnesota Public Radio reports that the new Minnesota law, passed in 2021, could squeeze some legislators who work for organizations that lobby, even if they recuse themselves from their employers’ lobbying efforts. The new law will go into effect on January 3, 2023, but the legislature must first adopt rules before it can be enforced.

75% of Maryland Voters Choose to Rename Its Appeals Courts to Something More “Normal:” For decades, Maryland has been an outlier in having no “Supreme Court,” but only a highest court called the “Court of Appeals” (its intermediate appellate court was a “Court of Special Appeals”). At the recent November 8 election, 75% of Maryland voters voted yes to a constitutional amendment to rename the Maryland Court of Appeals to the Supreme Court of Maryland and the Maryland Court of Special Appeals to the Appellate Court of Maryland.

Goldwater Institute Sues to Block Arizona Proposition 211 Requiring Donor Disclosure: Arizona First Amendment lawsuits are interesting in part because the Arizona Constitution’s version of the First Amendment is broader in some aspects than the federal version. See, e.g., Coleman v. City of Mesa, 230 Ariz. 352, 361 ¶ 36 n.5 (2012) (Ariz. Const. Art. 2, § 6 “is in some respects more protective of free speech rights than the First Amendment”). But in last November’s elections, 72% of Arizona voters voted in favor of Proposition 211, which would require donor disclosure of “money’s original sources,” defined as those who “earned the money being spent.” 

Now the Goldwater Institute has filed suit (h/t IFS) in Arizona courts on behalf of two Arizona charities to block Prop. 211. “Under the Arizona Constitution, an Arizonan ‘may not be forced to speak a message he or she does not wish to say’”, quoting Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269, 283 ¶ 52 (2019).

Open Secrets Sums Up 2022 State Ballot Measures: In a December 9 analysis, Rayna Cohen at Open Secrets has tallied up some interesting statistics on state ballot measures:

State ballot measures attracted $945 million during the 2022 election cycle. Sixty-two measures in states across the country covered topics such as abortion, cannabis use and online sports betting. Voters approved 64.5% of those measures, and some of the ballot measures with the biggest financial backers failed.

The two most expensive ballot measures came out of California, which voted against two sports betting initiatives. Groups supporting and opposing Proposition 27 to legalize online mobile and sports betting raised over $406.9 million, making it the most expensive ballot measure campaign in the state’s history. Groups raised more than $237 million to oppose the measure, while only $169 million was raised in support.

The proposition was opposed by groups funded by California Indian tribes and tribal organizations, which were supporting Proposition 26, another ballot measure that would have legalized sports betting at American Indian gaming casinos but was ultimately unsuccessful.

Proposition 26 was the second most expensive measure, at over $163.2 million. Groups supporting the measure raised $120 million, while those opposing it raised only $42 million. The committee supporting this measure — Yes on 26, No on 27 — also opposed the failed Proposition 27.

GENERAL

Two Under-the-Radar “Pro-Democracy” Organizations Generated $48 Million Opposing Trump’s Post-Election Efforts: Politico claims it is the first to report on the activities of two similarly-named progressive organizations that spent millions to block former President Trump’s “Stop the Steal” efforts after the 2020 elections and oppose the candidacies of election deniers.

A pair of progressive organizations operating in complete secrecy spearheaded a $32 million campaign during the midterms to push back against former President Donald Trump’s “Stop the Steal” movement. The effort, first reported by POLITICO, was undertaken by two newly created groups: Pro-Democracy Center and Pro-Democracy Campaign. Those groups operated in states across the country as the election system faced unprecedented pressure from Trump and his allies, who falsely said that the 2020 election was stolen. … Altogether, the organizations funded 126 groups across 16 states, from national battleground states like Arizona and Pennsylvania to places like South Carolina and New Jersey, where most statewide races have not been particularly competitive. …

Donnelly, a longtime fixture in the good governance advocacy community, declined to reveal the funding sources behind the campaign. But the substantial budget and extensive operations of the PDC underscore the depths of progressive concern that exist over Trump-led efforts to change voter laws and election administration across the country. It represents a significant investment in state-based infrastructure during a time when progressives have feared too much attention and resources have been devoted to national infrastructure and institutions.

In addition to the $32 million PDC directly funneled, it also steered an additional $16 million directly from other funders to partner groups as well. Both numbers were provided to POLITICO by PDC. As one point of comparison: The Conservative Partnership Institute, which has served as a hub of Trump allies — including attorney Cleta Mitchell, who was on the call where Trump tried to pressure Georgia officials to overturn the 2020 election — brought in $45 million in 2021.

Will Republicans Embrace Mail-in Voting As Trump Fades? So asks the Wall Street Journal. *The issue of mail-in voting has divided Republicans in the wake of disappointing midterm elections, with most key GOP leaders urging the party to embrace the practice and former President Donald Trump continuing to warn against it. Republicans including Florida Gov. Ron DeSantis say the party has been hurt by relying more heavily on Election Day turnout while Democrats encourage supporters to vote early and by mail. Intraparty criticism intensified following Herschel Walker’s loss Tuesday in Georgia’s Senate runoff. “If we don’t bank ballots early, we’re going to keep losing,” Kellyanne Conway, an adviser to Mr. Trump, said Tuesday night on Fox News. Host Laura Ingraham shot back, “But we didn’t do it in 2020 because everyone said, ‘Don’t vote early because that’s corrupt.’”*

Elizabeth Nolan Brown Defending Algorithms As Good for Democracy: In Reason, Elizabeth Nolan Brown, Senior Editor at libertarian Reason magazine, has a significant deep dive into algorithms and all the kerfuffle over their effects (h/t IFS). Lots of history, context and, ultimately, compelling and comforting revelations that are rarely found in this noisy debate:

To some extent, the arguments about algorithms are just a new front in the war over free speech. It’s not surprising that algorithms, and the platforms they help curate, upset a lot of people. Free speech upsets people, censorship upsets people, and political arguments upset people.

But the war on algorithms is also a way of avoiding looking in the mirror. If algorithms are driving political chaos, we don’t have to look at the deeper rot in our democratic systems. If algorithms are driving hate and paranoia, we don’t have to grapple with the fact that racism, misogyny, antisemitism, and false beliefs never faded as much as we thought they had. If the algorithms are causing our troubles, we can pass laws to fix the algorithms. If algorithms are the problem, we don’t have to fix ourselves.

Blaming algorithms allows us to avoid a harder truth. It’s not some mysterious machine mischief that’s doing all of this. It’s people, in all our messy human glory and misery. Algorithms sort for engagement, which means they sort for what moves us, what motivates us to act and react, what generates interest and attention. Algorithms reflect our passions and predilections back at us.

They also save us time and frustration, making our online experiences more organized and coherent. And they expose us to information, art, and ideas we might not otherwise see, all while stopping the spread of content that almost everyone can agree is objectionable. Algorithms are tools, and on the evidence, people—and tech companies—are using them pretty well.

Did a Florida “Political Consultant” Report Planting False News Stories? Hardball public relations/lobbying/campaign dirty tricks led NPR to report on freelance TV news producer Kristen Hentschel who was planting false news stories on behalf of Matrix LLC, a “political consultant” working in southern states for companies including Florida Power & Light and sugar conglomerate Florida Crystals. The stories were apparently intended to affect both legislation and elections, and Hentschel’s calling card, literally, was as an ABC News reporter. “Interviews for this story and Matrix ledgers show Hentschel traded on her work for ABC News at least three times to trip up Florida politicians whose stances on environmental regulations cut against the interests of major Matrix clients. … According to two people at ABC News with knowledge, Hentschel was not, in fact, reporting for ABC on any of those subjects.” Her cover was broken by yet another “anonymous leak” of internal information to “Floodlight, a nonprofit newsroom that investigates the powerful interests.” “After this story was published on Wednesday, ABC cut ties with Hentschel. ‘Kristen Hentschel was a freelance daily hire who never worked for ABC News on the political stories referenced in the NPR article,’ the network said in a statement. ‘She does not currently work for ABC NEWS.’” Despite NPR’s long-standing involvement in campaign finance reporting stories, not a word in the long-form article about whether and how the “fake news” was reported to the appropriate authorities (Florida, in particular, has very strong lobbying disclosure rules).

Is a “Pro-Democracy Reporting” Backlash Coming? Somewhat related is an article from Univ. of Wisconsin-Madison journalism Professor Michael Wagner, contending that “a backlash against pro-democracy is coming.”

It is not that it should not be impermissible to take a side — it is that the taking of a side needs to be transparently and robustly hewed to the verifiable truth and that pro-democracy reporting aggressively pursues anti-democracy behaviors from all who conduct them.

Democracies depend upon providing citizens accurate information to make reasoned choices and to vote out leaders who repeatedly tell us things that are plainly not true. Without a robust defense of democracy-oriented reporting from experts and journalists alike, the recent improvements society has benefitted from in election journalism are in danger of disappearing.

It’s unclear what the terms “pro-democracy,” “democracy-oriented” or “anti-democracy” mean, besides “election denier” or perhaps “pro-Trump.” But a journalism professor touting “verifiable truth” could be a good thing, expected even, from a professional journalist … or maybe not.

MacKenzie Scott Lauded for Yet Another Unusual Philanthropic Tactic – Funneling Money to Charities in the South: Fortune notes that billionaire MacKenzie Scott “is dedicating an unusually large share of her giving to nonprofits in the South — a region that megaphilanthropy and particularly tech donors have long been criticized for ignoring. The maverick philanthropist has earmarked at least $3.1 billion for organizations in southern states since 2020 — nearly a third of the $10.6 billion in gifts disclosed on her new Yield Giving website.”

MIT Faculty Adopts A Statement On Free Speech: On December 21, the Massachusetts Institute of Technology Faculty Senate voted 98 to 52 to adopt a surprisingly-open Free Expression Statement (h/t law Prof. Eugene Volokh). The College Fix, the higher-education website run by “The Student Free Press Association … a nonprofit organization run by veteran journalists to help beginning journalists,” gives background. The Statement begins: “With a tradition of celebrating provocative thinking, controversial views, and nonconformity, MIT unequivocally endorses the principles of freedom of expression and academic freedom. Free expression is a necessary, though not sufficient, condition of a diverse and inclusive community. We cannot have a truly free community of expression if some perspectives can be heard and others cannot. Learning from a diversity of viewpoints, and from the deliberation, debate, and dissent that accompany them, are essential ingredients of academic excellence.”

(Updated from the Department of Justice section of the December 1 Vox PPLI post “Public Policy Advocacy Topics for November 2022“)

Lois Lerner did a fine job when she was in charge of public outreach at the Federal Election Commission, and tried hard when she took over the helm at the IRS Tax-exempt Organizations Division. However, her implementation of the “Be On The Lookout” (BOGO) strategy instead of the tried-and-true Touch and Go (TAG) system to look at potential political intervention by mostly conservative 501(c)(4) organizations ended up wrecking TE/GE’s reputation and working relationship with practitioners, and the damage still resonates today. There’s a reason why IRS TE/GE and the FEC stay separate; if nothing else, the laws are different, as are the First Amendment considerations. 

One of the well-known things behind the Lerner/IRS scandal is the pressure that Lois was under from the Department of Justice to “do something about” the Tea Party and Citizens United. Lois was quite candid about it later (here’s Lois Lerner on YouTube discussing the “everybody’s screaming at us” pressure).

And one of the people applying the pressure? John (“Jack”) Smith. According to  both Politico and CNN, the same Jack Smith just appointed special counsel for the current Donald Trump investigations. (Prof. Jonathan Turley explains the tangled web of investigations underway.) Despite a veritable media embargo on news about the new Special Counsel since his appointment, Attorney General Merrick Garland gave a 15-minute update on Special Counsel Smith’s appointment on November 30, and revealed that Smith had been getting briefings and background to help “get up to speed” on his new role.

Jack Smith was new to the Public Integrity Section of the DoJ Criminal Division in 2010, and he was looking for things to focus on. One of those was Citizens United and the role of 501(c)(4) organizations; based on nothing more than a media article, he wrote his superiors on Sept. 21, 2010 (P. 189):

Check out [the] article on front page of ny times [sic] regarding misuse of non-profits for indirectly funding campaigns. This seems egregious to me – could we ever charge a [18 U.S.C. §] 371 conspiracy to violate laws of the USA for misuse of such non profits to get around existing campaign finance laws + limits? I know 501s are legal but if they are knowingly using them beyond what they are allowed to use them for (and we could prove that factually)? IRS Commissioner sarah ingram [sic] oversees these groups. Let’s discuss tomorrow but maybe we should try to set up a meeting this week.

CNN noted that Smith testified in closed-door interviews with the House Oversight Committee in May 2014 during an investigation of the scandal: 

The meeting [between TE/GE and DoJ] had been convened to discuss the “evolving legal landscape” of campaign finance law following the Citizens United Supreme Court decision, according to a May 2014 letter written by Issa and Rep. Jim Jordan, the Ohio Republican who is expected to be House Judiciary chairman next year. “It is apparent that the Department’s leadership, including Public Integrity Section Chief Jack Smith, was closely involved in engaging with the IRS in wake of Citizens United and political pressure from prominent Democrats to address perceived problems with the decision,” Issa and Jordan wrote in the letter seeking Smith’s testimony.

Smith testified that his office “had a dialogue” with the FBI about opening investigations related to politically active non-profits following the meeting with Lerner, but did not ultimately do so, according to a copy of his interview obtained by CNN. Smith explained that he had asked for the meeting with the IRS because he wanted to learn more about the legal landscape of political non-profits following the Citizens United decision because he was relatively new to the public integrity section. He said that Lerner explained it would be difficult if not impossible to bring a case on the abuse of tax-exempt status.

Smith repeated at several points in the interview that the Justice Department did not pursue any investigations due to politics. “I want to be clear – it would be more about looking at the issue, looking at whether it made sense to open investigations,” he said. “If we did, you know, how would you go about doing this? Is there predication, a basis to open an investigation? Things like that. I can’t say as I sit here now specifically, you know, the back-and-forth of that discussion. I can just tell you that – because I know one of your concerns is that organizations were targeted. And I can tell you that we, Public Integrity, did not open any investigations as a result of those discussions and that we certainly, as you know, have not brought any cases as a result of that.”

Smith also testified that he was not aware of anyone at the Justice Department placing pressure on the IRS – and that he was never pressured to investigate any political groups. “No. And maybe I can stop you guys. I know there’s a series of these questions. I’ve never been asked these things, and anybody who knows me would never even consider asking me to do such a thing,” Smith said.

But other documents released in the litigation against the IRS which resulted in a DoJ apology and payment of millions in attorneys fees to affected organizations suggest otherwise. For example, an internal DoJ memo released under FOIA litigation with Judicial Watch shows that the meeting resulted in a substantive discussion of specific theories proposed by the DoJ Public Integrity Section, at which Lois explained the difficulties in bringing cases against c4s that relied on IRS rules. More importantly, the IRS began to deliver 1.25 million pages of taxpayer documents to the FBI, mostly 990s from targeted c4s. At the meeting, the Public Integrity Section, then headed by Smith, proposed joint investigations: “whether a three -way partnership among DOJ, the FEC, and the IRS is possible to prevent prohibited activity by these organizations.” The 2014 House Oversight Committee Report noted that “partnership” resulted in the designation of Janet Johnson – “an employee in its Criminal Investigation unit to serve as a liaison with the Justice Department on criminal enforcement relating to non-profit political speech.” (P. 176).

Jack Smith carefully testified to the House Oversight Committee in 2014 that “I can tell you that we, Public Integrity, did not open any investigations as a result of those discussions and that we certainly, as you know, have not brought any cases as a result of that.” (Emphasis added.) That may be true in the sense of never opening a specific investigation or case in “Public Integrity,” but it “certainly” may have sparked activity in IRS TE/GE.