Public Policy Advocacy Highlights for December 2021

Public Policy Advocacy Highlights for December 2021

[PRELIMINARY NOTE: For more than a decade, the First Tuesday Lunch Group, made up of legal practitioners who are Democrats, Republicans, independents and non-partisans from across the United States, has met monthly to discuss current legal issues in tax-exempt organization, constitutional, and campaign finance law and developments in public advocacy. Participants represent diverse organizations, interests and views spanning the political spectrum – non-partisan, left, right, and center, sometimes in adversarial positions in the legal arena. Yet participants are united in our commitment to the rule of law. These non-partisan discussions help candidates, news media, government officials, and other Americans navigate difficult and complex federal laws.

There is no set FTLG agenda, but each month, a draft of possible topics for discussion, based on highlights of the prior month, is circulated; the actual FTLG discussions generally include only a few of these topics and often several other topics. This post includes only Barnaby Zall’s suggestions for possible topics and highlights, not those of the FTLG itself or its participants. This draft is intended for active FTLG participants, and thus includes abbreviations and references to government agencies or individuals, legal doctrines and terms, and other shorthand phrases or terms.]

DCRA Confusion: Jim Kahl’s question about conflicting information from DCRA about registering foreign corporations from states whose laws differ from D.C.’s. Can foreign corporations register to do business in D.C. with fewer than three directors?

DoJ ANPRM on FARA: Reminder: the clock is ticking on sending comments to DoJ on its ANPRM on reforms and changes needed to FARA.

IRS EO Reminders: Tax-exempt organizations affected by Hurricane Ida have until February 15, 2022 to file various tax and information returns and make tax payments. TEOS is now the only page for Service exempt org info. 1024’s going electronic in 2022. Nice summary from Proskauer on new requirements for LLCs that want c3 status. Announcement 2021-18 revokes 2001 guidance that allowed penalty waivers when payments to management companies were reported on Form 990 rather than reporting the compensation paid to the person(s) who provided services to the tax-exempt organization on behalf of that management company; now everyone must follow the 990 instructions for each type of 990, so that persons who should be listed in the compensation section may be individually listed and not hidden in a blanket payment to a management company.

New FEC Leadership: Long-time FTLG participant Allen Dickerson has been elected Chair for 2022, and Steven Walther was elected Vice-Chair.

Short Codes: No FEC action on whether “short code” texts are public communications (discussed at a recent FTLG lunch). AOR 2021-11.

D.C.D.C. Reverses Earlier Decision and Denies Standing to Challenge FEC Inaction: On Dec. 30, Judge Cooper reconsidered and reversed an earlier decision in CLC v. FEC/Right to Rise Super PAC, No. 20-CV-00730 (CRC), Dec. 30, 2021. The earlier decision in February dismissed Right to Rise’s challenge to the Complainants’ standing, though it did agree with RTR that the Complaint failed to state a claim under the APA. In Thursday’s decision, Judge Cooper “the court will grant RTR’s motion for reconsideration, and, finding that it lacks subject matter jurisdiction, dismiss the case and deny plaintiffs’ motion for a default judgment against the FEC.” Slip op., 1. The dismissal was based on the Plaintiffs’ speculation about whether there was more pre-candidacy announcement “testing the waters” expenditures than were disclosed on the PAC’s initial FEC filing. This is similar to an issue raised in Cruz for Senate v. FEC, No. 21-12: a court cannot “accept[] mere conjecture as adequate to carry a First Amendment burden.” McCutcheon, 572 U.S. at 210.

Removing Redactions Exposes Why FEC Could Not Act: Rick Hasen writes: “After Republican commissioners delayed consideration of the matter, FEC Commissioner Petersen recused himself once he accepted a post-FEC job at Holtzman Vogel, depriving the FEC of a quorum.” Unredacted Giffords v. FEC opinion.

Media Coverage Complaining About Consulting Legal Counsel: As long as we’re talking about Holtzman Vogel Josefiak Torchinsky, the Daily Beast notes the activity of various HVJT heavy-hitters in the Kanye West 2020 campaign for President. Many of us in the FTLG, including Barnaby Zall, have counseled not only Presidential candidates from both parties, but also losers and long-shots, without being called out for it. A more balanced piece on long-time FTLG member Cleta Mitchell in TPM points to her long legal counseling career as a good thing (although it doesn’t mention her background as a Democratic legislator): “But Mitchell also has institutional cred among conservatives that goes back decades, the kind of swing that can land you a post-insurrection seat on a government elections advisory board without much public fuss, even during the Biden administration.”

Supremes Consider Corruption: Briefing is almost complete for Ted Cruz for Senate v. FEC, No. 21-12, to be argued on January 19. The case nominally involves whether a limit on using post-election contributions to repay candidate loans to their campaign committees one of the few remaining provisions of BCRA, but also raises several other questions, including the evidence required to find an “appearance of corruption,” one of the few areas in which First Amendment rights can be limited because they are unpopular. A cert petition was filed in Roberson v. U.S., No. 21-605, asking a similar question with more emphasis on the exempt organization side: “Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action.”

Supreme Court Commission (cont.): Not much media coverage of the concurring reports from the few independent members of the recent Biden Commission on changing the Supreme Court. Prof. Will Baude reprints a couple (limited to 800 words each).

Senators Complain About Conservative Organizations Filing Amicus Briefs: Sens. Whitehouse, Blumenthal and Hirono file “AMICUS Act,” a bill requiring disclosure of donors to organizations filing amicus briefs in the Supreme Court. Meanwhile, Brian Klaas, a professor from University College, London, urges “defund[ing] donors” to “authoritarians.”

Dems and Transparency: Meanwhile, are Dems moving on from “transparency” as a top priority? Rachel Cohen at American Prospect says so. (If you’re paywalled, see these excerpts from Rick Pildes’ blog post at ELB.) “more quietly, leaders in the progressive fundraising world will admit that transparency is just not a serious priority anymore … This isn’t new, and the Democratic Party in particular has been making itself more easily swayed by the whims of the wealthy ever since the early 1980s, when Rep. Tony Coelho took over the Democratic Congressional Campaign Committee and established new direct lines of communication between corporate donors and members of Congress. … As progressive groups grow more dependent on rich donors who’d like to keep their contributions private, liberals find themselves contorting into awkward positions to justify the status quo, insisting groups that are clearly affiliated with the Democratic Party are not, in fact, partisan.” From the other side, is donor privacy ok for Mackenzie Bezos but not for others? An article in City Journal discusses the value of donor privacy.

Cops Surveil Portland Protestors: (should Portland Protestors be a recurring topic?) Is police/FBI surveillance of active protests where violence is taking place a violation of the first Amendment? The New York Times and activists appear to say yes. Asked about FBI agents watching from within a protest in Portland, Oregon, “Mike German, a former FBI special agent who specialized in domestic terrorism and covert operations and is now a fellow at the Brennan Center for Justice, said that such surveillance operations inherently run the risk of violating First Amendment rights.”

Change 1st and 2nd Amendments? In the wake of Justice Kavanaugh’s comments about the “neutrality” of the Court in the abortion cases, others have suggested changes to various parts of the Bill of Rights. A Boston Globe op-ed by Mary Ann Franks, a professor at Univ. of Miami Law School, suggests “explicitly situating individual rights within the framework of ‘domestic tranquility’ and the ‘general welfare’ set out in the Constitution’s preamble” to prevent the First and Second Amendments from “being read in isolation from the Constitution as a whole and from its commitments to equality and the collective good. The First and Second Amendments tend to be interpreted in aggressively individualistic ways that ignore the reality of conflict among competing rights. This in turn allows the most powerful members of society to reap the benefits of these constitutional rights at the expense of vulnerable groups.”

CounterMajoritarianism vs. the Constitution: Dueling professors in the Cal.L.Rev. Franita Tolson explains the dilemma: “Writing about the countermajoritarian difficulty is a rite of passage for constitutional law scholars.” Pam Karlan says “we’re all going to die,” Will Baude says “a feature, not a bug,” and Nick Stephanopoulos says “we can Guarantee [Clause] this problem.” 

Gangs and PACs? Real, Chicago-type organized gangs (in Chicago), running PACs and candidates for office? New book says yep, and Rick Pildes is intrigued.