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 or the First Tuesday Lunch Group or their members and participants. Suggestions and corrections welcome.

FEC

FEC v. Ted Cruz For Senate Is Ripe For Decision: The Supreme Court of the U.S. always finishes its caseload by early July, so FEC v. Ted Cruz for Senate, No. 21-12, which was argued on January 19, should be decided in the next two months. Cruz is a First Amendment challenge to the FEC’s limits on use of post-election contributions to reduce campaign debt, but also raises significant questions about the “appearance of corruption” (amicus brief of PPLI), one of the few areas where First Amendment protections are determined by perceptions of public opinion (amicus brief of Institute for Free Speech) and campaign consultant testimony.

End Citizens United v. FEC: Non-Enforcement Decision on Factual Interpretation Non-Justiciable: In End Citizens United v. FEC, Judge Tim Kelly of the U.S. District Court for D.C. dismissed a challenge to the FEC’s closing of a file even though the agency did not appear or defend its action.

          The D.C. Circuit has explained that this test reflects the Administrative Procedure Act’s requirement that courts should “hold unlawful and set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Citizens for Resp. & Ethics in Washington v. FEC (“Commission on Hope”), 892 F.3d 434, 437 (D.C. Cir. 2018) (cleaned up). But under these circumstances, the Court cannot review the FEC’s nonenforcement decision. Despite FECA’s uncommon provision, an FEC nonenforcement decision is not reviewable if the nonenforcement is “based even in part on prosecutorial discretion.”  

Slip op. at 2.

          And if the Commissioners issue a reasoned, legally-sufficient Statement of Reasons that explains their votes (even by less than a majority if issued by the Commissioners voting not to proceed), then the result is a final explained action, permitted under FECA. Slip op. at 2, quoting Citizens for Resp. & Ethics in Washington v. FEC (“New Models”), 993 F.3d 880, 882 (D.C. Cir. 2021) (quoting 52 U.S.C. § 30109(a)(8)(A), (C)). “Given this exercise of prosecutorial discretion, under the Circuit precedent outlined above, this Court ‘lack[s] the authority to second guess’ such a dismissal, and so may not enter default judgment against the FEC. New Models, 993 F.3d at 882.” Slip op, at 2, 3. IOW, a FACTUAL interpretation sufficient to block action is as important to American jurisprudence as a LEGAL interpretation. FECA non-enforcement access to the courts is governed by both interpretations, not just one. 

CLC v. FEC v. Correct the Record – D.C. Circuit Finds Standing to Sue Over Informational Injury Allegedly Caused by FEC Inaction: In contrast to the End Citizens United v. FEC case above, this decision was just about whether CLC had standing to challenge the FEC’s determination that Correct the Record’s and the Hilary for America campaign committee’s failure to report 2016 coordinated communications expenditures was excused because reporting of unpaid Internet communications was exempt from reporting. “‘The law is settled that a denial of access to information qualifies as an injury in fact where a statute (on the claimants’ reading) requires that the information be publicly disclosed and there is no reason to doubt their claim that the information would help them.’ Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (per curiam) (quoting Env’t Def. Fund v. EPA, 922 F.3d 446, 452 (D.C. Cir. 2019)).” See, also, FEC v. Akins, 524 U.S. 11, 21 (1998).

          In particular, CLC claimed that it needed more-detailed “disaggregated amounts” that should have been reported as individual coordinated in-kind contributions from CTR to H4A, but were not:

[D]isaggregation of Brock’s salary to show which portion was coordinated would in fact reveal the numerical amount of Correct the Record’s coordinated contribution to the Clinton campaign, information political committees are required by statute to make public. Appellants do not now know that numerical amount, nor did the District Court; the “suppose[d]” fifty percent or $2,260.78 that might have been contributed in the court’s example is made up; it is but a guess. See id. If Appellants prevail, the actual amount of Brock’s salary that was a contribution to the Clinton campaign would have to be disclosed, along with disaggregated amounts for a myriad of other lump sum expenditures Appellants believe involved coordinated contributions. There is no doubt that those numerical amounts constitute factual information and that FECA requires them to be disclosed.

Slip op. at 18.

Whether this decision will lead to more requests for disaggregation is unclear, but at the motion to dismiss stage on a standing defense, the D.C. Circuit precedents lean toward allowing remand for more information and analysis.

In L’Affaire “Steele Dossier,” FEC Fines Hillary for America and the DNC, Dismisses Some Allegations, Accepts Others, Deadlocks on Others. It’s complicated, but, in MURs 7291 and 7449, the FEC has made some decisions on Dan Backer’s complaints against DNC, Marc Elias, Perkins Coie, Hillary for America, etc., based on the Steele Dossier against Donald Trump containing flawed information about relationships with Russia. The Washington Post summarized the more-newsworthy findings here. Here’s just SOME of the Disposition list in MUR 7449 made public in the last week of April (read the whole thing to find out more details):

• Voted 6-0: Dismiss the allegations that: 1. Christopher Steele violated 52 U.S.C. § 30121 and 11 C.F.R. § 110.20(b), (f) (g), and (i) (contributions by foreign nationals). 2. Marc Elias and Perkins Coie LLP and Hillary for America violated 52 U.S.C. § 30121 and 11 C.F.R. § 110.20(b) and (h)(1). 3. Fusion GPS violated 52 U.S.C. § 30121 and 11 C.F.R. § 110.20. 4. Approve the appropriate letters. 5. Close the files.
• Voted 4-2: Find Probable Cause to believe that 1. Hillary for America violated 52 U.S.C. § 30104(b)(5)(A) (reporting detailed information about persons to whom expenditures were made and for what purpose) and 11 C.F.R. § 104.3(b)(4)(i) by failing to report the proper purpose of the funds HFA paid to Perkins Coie for opposition research performed by Fusion GPS. 2. DNC Services Corporation/Democratic National Committee violated 52 U.S.C. § 30104(b)(5)(A) and (b)(6)(B)(v) and 11 C.F.R. § 104.3(b)(3)(i) by failing to report the proper purpose of the funds the DNC paid to Perkins Coie for opposition research performed by Fusion GPS.
• Voted 4-2:  Accept Various Conciliation Agreements with and Fine: 1. DNC Services Corporation/Democratic National Committee. 2. Hillary for America.
• Voted 4-0: 1. Find Reason To Believe that Hillary for America, Inc. and DNC Services Corp./Democratic National Committee violated 52 U.S.C. § 30104(b)(5)(A) and (b)(6)(B)(v) and 11 C.F.R. § 104.3(b)(3)(i) and (b)(4)(i) by misreporting the purpose of funds paid to Fusion GPS through Perkins Coie LLP. 2. Dismiss the allegations that Marc Elias and Perkins Coie LLP violated 52 U.S.C. § 30104(b)(5)(A). 3. Not Take Action on several more allegations.
• Deadlocked 2-2:  Failed to Find Reason To Believe that, by misreporting the payee of funds paid to Fusion GPS through Perkins Coie LLP: 1. Hillary for America, Inc. and DNC Services Corp./Democratic National Committee violated 52 U.S.C. § 30104(b)(5)(A) 2. Hillary for America, Inc. and DNC Services Corp./Democratic National Committee violated 52 U.S.C. § 30104(b)(5)(A) and (b)(6)(B)(v) and 11 C.F.R. § 104.3(b)(3)(i) and (b)(4)(i).

Meanwhile, Fox News reported H4A and the DNC sought to block federal Special Counsel John Durham from obtaining information from Perkins Coie, as part of Durham’s investigations of misconduct involving attempts to generate governmental pressure on the 2016 Trump campaign relating to alleged relationships with Russia. It’s not clear what effect the FEC Conciliation Agreements and Findings will have on this defense or other Durham investigations.  

Practice Tip: Be Careful How You Give Legal Advice – Involvement of Foreign National in $1.75 million SuperPAC Contribution Decision Resulted in $975,000 Record FEC Fine: In MUR 7613 (Wheatland Tube), the FEC settled a claim that a Canadian citizen who owned an American corporation  had conversations with a subsidiary company’s executives that resulted in prohibited foreign contributions to a SuperPAC. “The Commission has specifically determined that “no director or officer of the company or its parent who is a foreign national may participate in any way in the decision-making process with regard to making . . . proposed contributions.’” Id., at 6-7, quoting Advisory Op. 1989-20 (Kuilima) at 2; see also Advisory Op. 1985-03 (Diridon) (stating that no foreign national can have any decision-making role or control with respect to any political contribution made by a domestic company). The foreign national told the FEC that a corporate lawyer “suggested to [him] that a U.S.-based company with which [he is] affiliated should consider contributing” to the SuperPAC, and that suggestion “led [him] to believe that [he] could communicate with others about potential contributions.”

          This is a tricky line to discern. Compare, e.g., MURs 6959 (clerical duties in internship not foreign contribution), and 5987, 5995, 6015 (all involving Sir Elton John, volunteer fundraising services and name endorsement not foreign contributions), with MUR 6093 (Transurban Grp.) (U.S. subsidiary violated Act by making contributions after its foreign parent company’s board of directors directly participated in determining whether to continue political contributions policy of its U.S. subsidiaries); Conciliation Agreement, MUR 6184 (Skyway Concession Company, LLC) (U.S. company violated Act by making contributions after its foreign national CEO participated in company’s election-related activities by vetting campaign solicitations or deciding which nonfederal committees would receive company contributions, authorizing release of company funds to make contributions, and signing contribution checks); Conciliation Agreement, MUR 7122 (American Pacific International Capital, Inc. (“APIC”)) (U.S. corporation owned by foreign company violated Act by making contribution after its board of directors, which included foreign nationals, approved proposal by U.S. citizen corporate officer to contribute). Venable offers suggestions for compliance.

Complaint Filed Against Swiss Citizen Who Used Foundations to Contribute to Arabella Projects: Similarly, The Hill reports on a lawsuit filed against the FEC for failing to respond to a May 2021 complaint against a Swiss citizen who used two foundations to contribute to the Sixteen Thirty Fund and the New Venture Fund, parts of Arabella Advisors’ network. “The watchdog group [Americans for Public Trust] is suing the FEC in a push to get the agency, which oversees and enforces campaign finance law, to examine whether Wyss violated federal law with his contributions.”

Statement of Reasons Explains Conflict Between FECA and FEC Regulations on “Republication:” In MUR 7646, Commissioners Dickerson and Trainor explain their views that FECA makes republication of, in this case, YouTube video from a campaign an “expenditure,” while 11 C.F.R. § 109.23(a) makes it a “contribution,” with resultant differences in legal treatment. “To the extent that 11 C.F.R. § 109.23 treats non-coordinated republication as an in-kind contribution—this regulation contradicts FECA’s text and is therefore contrary to law. … Thus, in order to remain faithful to our enabling legislation, when the Commission enforces the republication provisions, it must establish actual coordination using the same standards applied to any other form of public communication.”

Is Google Making An In-kind Contribution When It Marks Republican Campaign Email as “Spam” 820% More Often Than Democratic Emails? The RNC, RNSC and RCCC jointly filed a complaint against Google based on an academic study from N.C. State which found that Gmail’s Spam Filtering Algorithm suppressed Republican campaign-related emails 820% more often than Democratic campaign emails. ““We further observe that Gmail marks a significantly higher percentage (67.6%) of emails from the right as spam compared to the emails from [the] left (just 8.2%). … Not only that, but as Election Day drew closer, and as voters began focusing more intently on political races, the disparity between how Gmail marked Republican and Democrat emails as spam only steadily grew.”

Complaint Filed Against Texas c4 For Failure to File FEC Reports: The Texas Tribune reports that a 501(c)(4), “the political arm of La Unión del Pueblo Entero, a nonprofit founded by the famed labor-rights activists César Chávez and Dolores Huerta,” is being accused of failing to file required FEC reports in a Democratic primary contest in the 15^th Congressional District (Rio Grande Valley). According to the complaint, the c4 recruited a candidate, formed a PAC, received contributions and made expenditures, conducted an active campaign in support of its candidate, and more, but failed to disclose its campaign activities timely. Its candidate came in second in the primary, by only 302 votes, and forced a runoff election. The Tribune notes: “The runoff is being closely watched because the 15th District is Republicans’ top pickup opportunity in November as they push to make new inroads in South Texas.”

FEC to Start Enforcing Its Own Form of “True Source” Rule: In MUR 7454 (Blue Magnolia Investments), four Commissioners issued a Statement of Reasons discussing what LLCs, and by extension other entities, must disclose when reporting contributions. “The Commission’s rules for reporting attribution information for LLC contributions are intended to ensure that the source of a contribution is not obscured and that individuals may not use LLCs to avoid lawful disclosure.” Under 11 C.F.R. § 110.1(g)(5), the burden of sufficiently disclosing is on an LLC to “at the time it makes the contribution, provide information to the recipient committee as to how the contribution is to be attributed, and affirm to the recipient committee that it is eligible to make the contribution.” Penalties had not been issued before because of a concern that reporting requirements were not clear enough, but the Statement says that penalties will now be issued. Politico comments: “Good-government groups hailed the decision — where a Republican commissioner sided with liberal-leaning commissioners — as a hopeful sign that the often-deadlocked commission could start finding more common ground.”

New Crypto-supporting SuperPAC’s First FEC Filing Sparks Questions: Apparently, the FEC Commissioners’ concerns are well-founded. Politico reports: “Protect Our Future — a super PAC that’s spent millions supporting candidates ‘who take a long-term view on policy planning’ — disclosed $14 million in contributions from the Nevada-based fintech Prime Trust LLC in its quarterly filing on Friday. … So who is actually the source of the funds — and why the obfuscation in the first place? … Sam Bankman-Fried, 30-year-old founder of the crypto exchange FTX and emergent political megadonor, was responsible for $13 million” of the $14 million.

COURTS

Supreme Court Muddies Standard of Review for Sign Cases: In City of Austin v. Reagan Nat’l Advertising, No. 20-1029, a fractured Supreme Court reversed the Fifth Circuit’s finding that an ordinance treating signs differently depending on where they were located was content-based, and thus subject to strict scrutiny. In Reed v. Gilbert (2015), the Court struck down a sign code that treated some speech differently, including “ideological” or “political” speech, than signs promoting church services or educational events; the Fifth Circuit had held (as do most observers) that Reed ruled that a law which required reading the content of the sign to see if the sign was subject to restrictions under the law was content-based and was subject to strict scrutiny review. Justice Sotomayor’s majority opinion for five Justices said that was a “too extreme interpretation,” and that Austin’s ordinance took only location into account, rather than content. Justice Sotomayor also said that even if the less stringent “exacting scrutiny” standard was applied, however, the Court did not have enough information to determine whether the ordinance was drawn narrowly to advance a significant governmental interest, and remanded the case for more fact-finding. Justice Breyer concurred to complain that Reed “too rigidly ties” content to strict scrutiny, while Justice Alito concurred in the result but not in the standard of review in the majority opinion. Justice Thomas dissented, joined by Justices Gorsuch and Barrett, complaining that the majority’s analysis replaces Reed’s “clear rule” with “an incoherent and malleable standard.” Harvard Law Prof. Larry Tribe tweeted: “SCOTUS made a total mess of 1st Am law. Only the 3 dissenters, pointing to the agreement of scholars as far apart as Michael McConnell and me on the key legal point, came close to offering coherent guidance.” Prof. Eugene Volokh is less agitated, saying the cutback in content-based doctrine is “likely only a little bit.”

Supreme Court Rejects Latest Batch of Challenges to Mandatory Bar Membership and Non-germane Use of Dues; What’s Different This Time: The Supreme Court denied cert in four challenges to mandatory bar requirements and use of dues for matters not “germane” to the core functions of regulating the bar. Keller v. State Bar of Calif., 496 U.S. 1 (1990), remains in place, but is still not fully explained. The difference between earlier cert petitions (which sought to challenge Keller under Janus v. AFSCME, 585 U.S. ___ (2018) (compulsory union dues violate First Amendment rights)) and the latest batch is a stronger focus on what Keller and other cases identify as permissible (germane) uses of dues and what is non-germane use for which mandatory dues may not be used. The Fifth Circuit’s McDonald v. Firth and Boudreaux v. Louisiana State Bar (both of which held mandatory state bar uses of dues were non-germane and thus unconstitutional) remain in place, and circuits are still split on important questions.

Supreme Court Denies Cert to Challenge to Rhode Island Campaign Finance Law Requiring On-Ad Donor Disclosure: The Supreme Court denied review in Gaspee Project v. Maderos, No. 21-890, a case which challenged Rhode Island’s 2012 donor disclosure rules for organizations which made independent expenditures on issue ads. The First Circuit’s Sept. 2021 decision upholding the Rhode Island donor disclosure law said that listing an organization’s top five donors on-screen during issue ads only “burdens speech modestly.”

What’s a Victory That’s Reversed on Appeal? Kerfuffle over Marc Elias’s reporting as a “victory” lower court opinions despite those opinions being reversed on appeal. Rick Hasen fans flames: “Democratic and Voting Rights Organizations Ultimately Lost Election Law Cases ‘By a Ratio of More than 7 to 1’.” New Yorker article on Marc as a “middle-aged white guy living in Northern Virginia” stirs the coals. Hasen continues to quote anonymous commenter: “The New Yorker piece helpfully notes disagreement within the election law community. … Like most lawyers, athletes, and, for that matter, politicians whose profession depends on future success, Elias is inclined to play up past successes; and to play down past failures. … All of us who care about the vitality of American democracy are on edge; but litigation is no outlet for our primal scream.”

IRS

Supreme Court Tells Tax Court to Narrowly Read Jurisdictional Restrictions, Opening the Door Slightly for Equity Claims: For decades, the Tax Court has interpreted jurisdictional tolling statutes generously; for example, it would turn away Collection Due Process filings that were even one day late. But, in an opinion by Justice Amy Coney Barrett in Boechler v. Commissioner, No. 20-1472, the Supreme Court clarified that not all procedural requirements are jurisdictional. Non-jurisdictional rules “promote the orderly progress of litigation but do not bear on a court’s power.” Slip op. at 2-3 (cleaned up). “[W]e treat a procedural requirement as jurisdictional only if Congress ‘clearly states’ that it is. Slip op. at 3. Congress must “plainly … imbue[] a procedural bar with jurisdictional consequences.” Id. It’s in large part a grammatical review, as it was in this case, of what Congress wrote.

Why is this obscure case important to public policy lawyers? Though not stated plainly in Justice Barrett’s unanimous opinion, this decision is another step along the “square corners” path the Supremes are treading these days, and it is being again applied to the IRS and the Tax Court. “If individuals ‘must turn square corners when they deal with the government,’ the taxpayers insist, ‘it cannot be too much to expect the government to turn square corners when it deals with them.’ Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021).” Mann Construction Co. v. U.S., 6^th Cir., Mar. 3, 2022 (Sutton, C.J.). The Supreme Court apparently believes that using equitable rules to judge tolling is subject to the same rules.

Military Aid to Ukraine Charitable as “Lessening Burdens of Government?” Lively discussion on First Tuesday Lunch Group mailing list of how to treat military, as opposed to humanitarian, aid provided by a charity. Main takeaway: it is much harder today to demonstrate lessening of government burdens as a charitable purpose. Side note: after 2014 Russian invasion of Ukraine, one counsel was comfortable with providing protective vests to protestors, but not guns and bullets, even for defensive use.

CONGRESS

Senate Finance Committee, Subcommittee on Taxation and IRS Oversight, Hearing on Political Activities of Tax-Exempt Organizations: On May 4, the Subcommittee, led by Sen. Sheldon Whitehouse, an unrelenting foe of Republican use of tax-exempt entities for political purposes, will look at “Laws and enforcement governing the political activities of tax-exempt entities.” Witnesses include former FEC Commissioners Ann Ravel and Brad Smith, former IRS lawyer Phil Hackney, and Scott Walter from Capitol Research Center. Live video available at the Subcommittee’s web page.  

GAO Annual Report on Lobbying Disclosure Act – Low Compliance, Enforcement Action Slow and Rare: Covington reports that the 2021 LDA Report, compiled by the U.S. Attorney’s Office for D.C., has some interesting findings, including: almost three-quarters of all complaints reported to the USAO from 2012 to 2021 were still pending in 2022; an estimated 35% of registered lobbyists had not properly disclosed former governmental positions; and, USAO brought LDA charges against only one person in 2020 (who pled guilty).

DEPT OF JUSTICE

House Judiciary Hearing on Problems with FARA: Covington reports on April 7 Committee hearing on Foreign Agents Registration Act. “While the witnesses broadly acknowledged the problematic ambiguity and lack of clarity of the statute, they varied in their views about how to reform FARA and provide more certainty to the regulated community. … This divide between more aggressive enforcement of FARA and narrowing the statute was a common theme throughout the hearing, by both the witnesses and the members of the Subcommittee. There also seemed to be few substantive openings for bipartisan consensus. … Surprisingly, the hearing addressed very few substantive proposals that FARA practitioners and the Department of Justice have focused on recently in the context of DOJ’s Advance Notice of Proposed Rulemaking (“ANPRM”) to modernize FARA.”

STATES

California Legislation to Increase Donor Disclosure: Going against a trend in state legislation to protect donors in the wake of AFPF/TMLC v. Bonta, California’s Legislature is moving Senate Bill 1360, California’s Disclosure Clarity Act, jointly authored by Senators Thomas J. Umberg (D-Santa Ana), and Ben Allen (D-Santa Monica). The Orange County Breeze reports: “SB 1360 will give California the first law in the nation to require online image and banner ads to clearly and prominently show their top funder on the ad itself. It will also require formatting changes to make television and video ad disclosures more readable and stop committees from purposefully using extremely long committee names to make it difficult for voters to read the top three funders in the five seconds the disclosure is on the screen.”

California FPPC Tightens Reporting of Online “Amplification:”  Covington reports on new regulation of “amplification” of online advertising in California. “In the digital age, it has become common to accuse opponents of propping up their online presence through paying influencers, buying followers or likes, or of being supported by bots.  A California law new this year is looking to shed light on at least some of that activity.” New Fair Political Practices Commission rules “require committees with reportable expenditures for amplification measures to specifically describe the payments in their reporting statements.”

Tennessee Legislature Passes New Bill to Combat “Dark Money,” In Part By Limiting Unitemized Small Donations: The Tennessee Legislature overwhelmingly passed H.B. 1201/S.B. 1005, a controversial bill which contains a variety of changes to the state’s campaign finance rules. Some of the changes include requiring c4, 5 and 6 organizations to report all independent expenditures over $5,000 made in the 60 days before an election, candidates cannot have more than $2,000 of unitemized contributions in a reporting period, any person who personally controls a PAC’s expenditures is personally liable for any reporting or violation fines, and companies that provide campaign services will have to disclose if they pay a member of the general assembly or a staff member of the general assembly.

California Consumer Privacy Protection Board Holds First Meeting, Says Its Authorizing Legislation is “Unclear” About Its Authority: In 2020, California voters created the new agency tasked with helping consumers use new privacy tools and rights created by the California Consumer Privacy Act in 2018. The statute requires the new agency to issue its first regulations by July 2022. Neilsen Merksamer reported on the new agency’s first meeting, modestly predicting: “Due to California’s influential status domestically, as well as its massive economy, the agency is poised to become one of the most significant data privacy authorities and regulatory bodies in the world.”

GENERAL

More on Golden Globes’ Tax-Exemption: TheWrap reports that “The plan to reinvent the Golden Globes by turning the Hollywood Foreign Press Association into a for-profit company owned by billionaire Todd Boehly, the group’s interim CEO, raises a host of legal and ethical red flags, multiple legal experts told TheWrap.” [Partial paywall] Legal experts included First Tuesday Lunch participants.

Amazon Criticized for Sending Injured Workers to Charities During Their Recuperation: The Financial Times (paywall) and Engadget report that mega-corporation Amazon’s Community Together program sends injured Amazon workers to “charities like Salvation Army and Habitat for Humanity to do whatever work they’re capable of with their injuries. Over 10,000 workers have been placed at non-profits since the program launched in 2016, but Amazon had to scale back its operations during the pandemic.” The workers get full pay instead of lower compensation benefits and the charities get good workers, but critics contend that the program allows Amazon to report lower injury rates at the warehouses.

Is a “Nonprofit Industrial Complex” and “Donor Elite,” Having “Quashed” the American Right, Now Destroying the Democratic Party? An article in Table Magazine explores: “How the foundation-NGO complex quashed innovative thinking and open debate, first on the American right and now on the center left. … Having crowded out dissent and debate, the nonprofit industrial complex—Progressivism Inc.—taints the Democratic Party by association with its bizarre obsessions and contributes to Democratic electoral defeats, like the one that appears to be imminent this fall…. It is this donor elite, bound together by a set of common class prejudices and economic interests, on which most progressive media, think tanks, and advocacy groups depend for funding.”

BLM Leaders Call 990 “Triggering” and For Most People It Probably Is: At least in the classic sense of causing fear of negative consequences from being identified in tax reporting. Yahoo News reported that, confronted with public criticism over the organizations’ purchasing a $6 million mansion, “Patrisse Cullors, a BLM founder, said she found it ‘triggering’ — emotionally compromising — when she hears about financial documents being made public. ‘It is such a trip now to hear the term “990,”’ Cullors said at the Vashon Center for the Arts Friday. ‘I’m, like, ugh.’”

Will Increasing Partisan Polarization Result in Parties Not Reaching Outside Their Base Supporters? Provocative op-ed in The Hill from Nancy Jacobson, founder and CEO of No Labels, suggests that the 2024 Presidential battleground will see little or no appeals to independents and ideologically undecideds. “This time, a moderate independent third ticket could run and win.”

Practice Tip – Free Tacos For Everyone Is Not Criminal Inducement to Vote in California: Carefully threading the California criminal bans on inducing voting, candidate manages to offer free tacos to those showing up at the polls. Court opines on value of tacos: “the Court does not find the tacos to be materially different than the so-called ‘trinkets’ that candidates often hand out for free to generate goodwill. At most, each taco cost between $2.35 and $2.67. This is comparable to, if not less than, the cost of shirts, sweatshirts, baseball caps, pens, signs, or posters that are often given out for free by a candidate during an election. Moreover, unlike those items—which are usually emblazoned with the candidate’s name, logo, or slogan—nothing on the tacos or taco truck connected them to Lopez.” Slip op. at 17.

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