An earlier version of these monthly highlights was published in mid-May, before the most recent First Tuesday Lunch Group meeting; new material since that publication is listed at the beginning of each topic section. 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

Dara Lindenbaum Confirmed as Commissioner by Senate:

UPDATE: The Senate voted 54-38 to confirm Dara Lindenbaum’s nomination to the Federal Election Commission. The letter from First Tuesday Lunch Group participants in support of Lindenbaum’s nomination was noted by Rules Committee Chair Amy Klobuchar. “Before Ms. Lindenbaum’s nomination hearing, the Rules Committee received a letter from 30 of the Nation’s top campaign finance lawyers. The letter ‘enthusiastically’ recommends Ms. Lindenbaum’s confirmation, and it is signed by Republicans, Democrats, and Independents, including Lee Goodman, a former Republican Chairman of the FEC, and Karl Sandstrom, a former Democratic Commissioner. In the letter – and these are their words, not mine – these attorneys praise her as a ‘thoughtful and conscientious advocate’ and ‘a genial and inclusive colleague.’ I agree with their conclusion that she would be ‘an excellent addition to the Commission.’” Cong. Rec. (daily ed.), May 24, 2022, S2657.

Heritage Action Files Suit Against FEC For Failing to Close File, Leaving It In Limbo: Heritage Action, a c4 that is the Respondent in MUR 7516, filed suit against the FEC for “deliberately conceal[ing] the FEC Commissioners’ voting records and statements of reasons in otherwise terminated enforcement proceedings—even though the APA, the Federal Election Campaign Act (FECA or Act), the Commission’s own regulations, and D.C. Circuit precedent expressly require the FEC to release these matter records.” The organization contends that “The concealment policy’s purpose is to convey the false impression to complainants, respondents, and the courts that the FEC has not yet taken action on administrative complaints in its enforcement matters and to manipulate the courts into enforcing FECA against respondents when in fact the agency has already voted on the merits of the administrative complaint and terminated the matter because fewer than four Commissioners voted in favor of taking enforcement action.” The suit follows closely behind the Statement of Reasons by FEC Chair Dickerson and Commissioners Cooksey and Trainor that bluntly criticized the refusal of the other Commissioners to vote to close cases where the panel deadlocked against proceeding.

FEC Proposes Interim Final Rule to Comply With D.C. Circuit’s Independent Expenditure Donor Disclosure Decision in CREW v. FEC: In CREW v. FEC, 971 F.3d 340 (D.C. Cir 2020), the appeals court affirmed a lower court decision finding that the FEC’s regulation requiring disclosure only of donors who gave for the purpose of supporting a particular independent expenditure be disclosed was inconsistent with FECA. The FEC is now considering how to alter the relevant regulation, and has published an Interim Final rule to do so. After failing to get the four votes to revise the regulation, the proposed new rule would simply strike the portion of the regulation the courts found inconsistent with the statute.

OGC Misunderstands Polling, Statement of Reasons Finds in Explaining that Message Testing Is Not Political Advertising: Polling has always been difficult to draft correctly and compliantly; Exhibit One may be the Federal Election Commission’s inept poll drafting (see, pp. 12-16) that doomed its case in Ted Cruz for Senate (see below). In MUR 7776 (Unknown Respondent), three Commissioners pointed out that: “OGC’s recommendation reflects a fundamental misunderstanding of common methods used by the public opinion and political survey research industry. In its analysis, OGC conflates garden-variety message testing with ‘general public political advertising’ (which falls under the aegis of the Act) by labeling Promark’s call a ‘push poll’—a term that does not appear anywhere in the Act or Commission regulations. Message testing, by its very definition, is not a form of advertising; it is designed and used to elicit, rather than disseminate, reactions and information about political messaging from the public.”  

Format Changes in New Versions 8.4 of FECFile Reporting Software and the FEC’s Online Software Mean Users Should Update Both FECFile and Private Vendors’ Software Accordingly: “The FEC has released new versions of FECFile (8.4) and the FEC Form 1 online webform. FECFile users should download the new version by opening FECFile and following the auto update prompts. Filers that use other electronic filing software should check with their vendor for a new version, as all software must now comply with the FEC’s updated format specifications.”

Unintentional Bias in Filtering Out Republican Emails: Want a deep technical dive (that’s actually understandable) following up on last month’s revelatory Univ. of N. Carolina study that found that overwhelming anti-Republican bias in Google’s Gmail spam filters (and only Google had this problem, not Yahoo or Outlook), and its implications for the Republican Party’s complaint to the FEC? Cyberlawyer and former NSA official Stewart Baker’s May 2 Steptoe’s Cyberblog podcast discussed the possible explanations. Baker and Law Prof. Jane Bambauer, for example, (starting at 31:40 on the podcast) pointed out that the researchers were quite knowledgeable about spam filtering algorithms, and designed the study’s “Propensity Score Matching” process to account for unintentional factors that might have distorted the results. But if, as Baker hypothesized, the distortion was a “hostility to the message of the GOP” reaction to the Republican campaign content, reinforced over time in the algorithm, Prof. Bambauer responded: “That would be explosive. That would be shocking.” Baker responded that he wouldn’t be shocked at all.

So, what are the implications for the (likely technically-uninformed) FEC staff’s review of the GOP complaint against Google’s spam filtering? It all comes down to whether cutting off multiple political communications because of its content would be considered a “thing of value” to a campaign. And complicated as that type of analysis may be, it is something done by lawyers all the time, and could be done by the FEC here. The FEC has decades of experience with direct mail targeting and communications, to which Gmail and its associated advertising and targeting functions is very similar.

Was the Ohio Values/J.D. Vance Campaign Non-Coordination Really “New?” Citing a Politico article on J.D. Vance’s Senate primary campaign, Prof. Rick Pildes, one of the more thoughtful posters on ELB, recently lamented “reverse coordination” in the Ohio GOP Senate primary race: “Vance’s campaign itself was not raising large amounts of money, but the massive contributions from Peter Thiel and others were sent to a super PAC that was supporting Vance. The super PAC leaders decided they had to substitute, in essence, for the campaign. To receive unlimited donations, the super PAC must be independent and cannot coordinate directly with the campaign. So instead they set up a public website on which they posted data and analysis that they hoped the Vance campaign would follow.” Neither “new” nor bigger; the technique’s been around for a decade, but did blossom with the Hilary Clinton presidential campaign.  It’s bold, but legal: How campaigns and their super PAC backers work together – The Washington Post; 10 Ways Super PACs and Campaigns Coordinate, Even Though They’re Not Allowed To – The Atlantic. And even more sophisticated techniques have been the business model for American Bridge/Correct the Record for a long time. How a super PAC plans to coordinate directly with Hillary Clinton’s campaign – The Washington Post. Even the scale is not new: PAC Profile: American Bridge 21st Century • OpenSecrets. And the reputed strategist behind the Ohio Values, Luke Thompson, did the same sort of thing in 2016 for Jeb Bush’s presidential campaign.

IRS

ICYMI – 990 Filing Deadline This Year For Many Tax-Exempt Organizations Is May 16: The IRS published “Tax Tip 2022-69” beginning: “Even though organizations like charities and foundations may be tax-exempt, the IRS still requires them to file certain information every year. For many of these exempt organizations, the deadline to file their 2021 information return is Monday, May 16, 2022.”

IRS Can Continue To Use Telemeetings: IRS TE/GE employees can continue to use IRS-approved telemeeting programs. H/t McDermott.

IRS Targeting Scandal Was “Imaginary” or “False?” Many of us lived through the Lois Lerner-era targeting scandal, courts have punished the IRS for it, technical details about it have been explained in great detail, but the idea that it wasn’t real refuses to die. One of the latest to try to weasel it away is Jonathan Chait, writer for New York magazine, who, on April 29, tweeted that it was “imaginary.” Completely wrong. As John Sexton wrote in Hot Air the next day: “This was not an imaginary abuse. It happened. People lost their jobs.” But on May 4, Sen. Sheldon Whitehouse opened a hearing on c4s and “dark money” (see item below under Congress) by saying that “no such unfair targeting occurred.” Whitehouse cited a 2017 TIGTA report, which actually shows that the targeting did occur. E.g., P. 102, email from Judy Kindell (who inherited Jack Riley’s perch as the IRS EO political activities maven) to Lois Lerner, July 18, 2012 (“Of the 199 (c)(4) cases, approximately ¾ appear to be conservative leaning while fewer than 10 appear to be liberal/progressive groups”). Fortunately, Ranking Member John Thune corrected the record about the TIGTA report and the scandal as a whole, and Philanthropy Roundtable offered a bit more history on past IRS targeting, as did Prof. Brad Smith’s testimony on behalf of the Institute for Free Speech.  

Nonprofit news outlets are playing a growing role in statehouse coverage; Private or Incidental Benefit? A recent extensive Pew Research Center report notes a ‘relatively new phenomenon: “Nonprofit news organizations are playing an increasingly important role in covering state capitols. … these journalists now account for 20% of the nation’s total statehouse press corps, up from 6% eight years ago. Nonprofit journalists are now the second-largest contingent of all statehouse reporters, following those who work for newspapers. … Many also allow other outlets to republish their original reporting, often at no cost.” (emphasis added.) Is this use of nonprofit resources without charge a form of private benefit to struggling for-profit news outlets, or an incidental benefit (in that the tax-exempt benefit could not be provided without also incidentally providing private benefit). See, IRS CPE 2001 Topic H01 for extensive discussion of the difficult task of determining whether qualitative or quantitative incidental benefit has been provided.

IRS Wants Public Input to Improve Its Website; Survey Filled Up Quickly: The IRS Exempts Organizations Division put out an email blast on May 3: “We want to make it easier for you to use our website by improving how it’s organized. Sign up to participate in our study and tell us how you want to find the information on IRS.gov that you need.” By the end of the day, the survey was full: “This study is full, but we will offer future opportunities. Thank you for your interest.”

IRS Seeking Nominations for Advisory Council: More information on this three-year appointment on the IRS Advisory Council’s page. Applications were accepted through June 3.

DOJ

DoJ says Gambling Mogul Must Register Under FARA As Agent of Chinese Government: Axios reports that Justice has filed against Steve Wynn, billionaire casino owner, for failure to register under FARA. The complaint alleges that Wynn failed to register as an agent for the Chinese government while pressing the Trump Administration to extradite a fugitive Chinese billionaire: “Wynn conveyed the request directly to the then-President over dinner and by phone, and he had multiple discussions with the then-President and senior officials at the White House and National Security Council about organizing a meeting” with senior Chinese officials, DoJ alleged in a press release on the suit.” The Complaint can be downloaded from the DoJ media release.

COURTS

Supreme Court Rejects FEC Limit on Use of Post-Election Contributions to Repay Candidates Personal Campaign Loans, Strongly Reiterates Recent Case Law on Standard of Proof to Support Limits on Political Speech: Even when the Supreme Court is clear and consistent in defending First Amendment rights, government agencies and lower courts sometimes go off the rails and ignore what the Supreme Court says, either intentionally because of disagreements or because of confusion or failure to look at what the Court actually said. That’s what happened in FEC v. Ted Cruz For Senate, No. 21-12, and the Court stepped in and, by reversing a Federal Election Commission rule on a 6-3 vote, firmly and clearly reminded everyone exactly what it had held and what it meant.

Cruz was about a small, highly-technical and complicated section of campaign finance law dealing with repayment of candidates’ personal loans to their campaigns, so it did not get much attention in the media. In a podcast from the National Constitution Center, Prof. Rick Hasen called the decision a “blip.” But, because it was the first clear indication of whether the three newest Justices would support recent Court precedents, it’s a very important decision for regulation of political speech.

More Than Half of the Argued Supreme Court Cases Not Yet Decided: Normally, June is a busy month, as the Supreme Court finishes up its Term and announces all decisions by July 1. This year will be especially hectic, since decisions have not been announced in 33 of this year’s 67 cases chosen for review. The percentages are even more dramatic if the four cases that were decided without argument are subtracted from the total of chosen cases, so that decisions have been announced in fewer than half of the argued cases. But the Court has entered June with more than 35 unannounced cases seven times in the last two decades, so it isn’t a record number waiting.

Fourth Circuit Strikes Bus Ad Policy That Blocks “EAT MORE CHICKPEAS!!” As Too Political For Bus Ads, But Not “Eat Mor Chiken,” Using Yet Another New Standard “Akin to” Exacting Scrutiny: In White Coat Waste Project v. Greater Richmond Transit Company, the U.S. Court of Appeals for the Fourth Circuit held that the Richmond bus company had no reasoned basis for deciding whether an ad could be rejected as being too “political.” Under the company’s policy, “any advertisement from what it calls a “political action group”—i.e., any group that “engage[s] in a specific targeted policy advocacy that would be related to their one side of the political issue”—is prohibited.” Slip op. at 5. For example, it “rejected an advertisement from the Physicians Committee for Responsible Medicine encouraging local hospitals to “go #FastFoodFree!” and readers to ‘EAT MORE CHICKPEAS!’” The Fourth Circuit said that bus ads were not a public forum, nor government speech, and, under the Supreme Court’s 2018 “political apparel at the polls” decision in Mansky, could use some content-based distinctions in nonpublic so long as they were capable of a reasoned application using “objective, workable standards.” Slip op. at 21-22, 25, citing Mansky, 138 S.Ct. at 1888-92. Here, Richmond Transit routinely ran ads that related to government or governance, and even government speech, slip op. at 25-26, so it should have had some guidelines. Instead it admitted that it would have blocked “EAT MORE CHICKPEAS!!” but not Chik-Fil-A’s “Eat Mor Chiken.” Slip op., at 28.  The unanimous panel opinion summarized its holding: “While transit companies may prohibit political advertising, they must do so by enacting a neutral policy capable of reasoned application. Otherwise, such a prohibition abridges would-be advertisers’ freedom of speech and is facially unconstitutional under the First Amendment.” Slip op. at 37. 

Supreme Court Denies Cert Asking If Family Campaign Contributions Violate First Amendment: Gerald Lundergan, a former head of the Kentucky Democratic Party, “was convicted in 2019 for making more than $200,000 in un-reimbursed contributions from his catering and events business to his daughter’s 2014 Senate campaign” against Mitch McConnell. As Courthouse News reported, Lendergan’s lawyers argued that the money should not have been classified as a corporate contribution because it was a closely-held family corporation and “the money was given to a family member.” That apparently did not impress the Court, which denied cert on May 2.

Boston Cannot Ban Religious Flag From Public Forum: In Justice Breyer’s likely final First Amendment opinion, Shurtleff v. Boston, he waxed eloquent about Boston architecture and virtues. See, e.g. Slip op. at 2 (“Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style.”). Pictures of the “brutalist” City Hall and the offending flag are in Amy Howe’s SCotUSBlog article, along with detailed analysis.

He also delivered all Justices (though only six joined the main opinion; Justices Alito, Gorsuch and Thomas concurred only in the result; see below): “on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint “abridg[ed]” their “freedom of speech.” Slip op. at 2.

Justice Breyer, as he often does, called for a multi-factor approach (somewhat akin to an IRS “facts and circumstances” test):

In answering these questions, we conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression. Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression. (emphases added by Prof. Josh Blackman).

Justice Alito’s concurrence criticized this “holistic inquiry:”

treating these factors as a freestanding test for the existence of government speech artificially separates the question whether the government is speaking from whether the government is facilitating or regulating private speech. Under the Court’s factorized approach, government speech occurs when the government exercises a “sufficient” degree of control over speech that occurs in a setting connected with government speech in the eyes of history and the contemporary public, regardless of whether the government is actually merely facilitating private speech. This approach allows governments to exploit public expectations to mask censorship. . . . And like any factorized analysis, this approach cannot provide a principled way of deciding cases. The Court’s analysis here proves the point. The Court concludes that two of the three factors—history and public perception—favor the City. But it nonetheless holds that the flag displays did not constitute government speech. Why these factors drop out of the analysis—or even do not justify a contrary conclusion—is left unsaid. This cannot be the right way to determine when governmental action is exempt from the First Amendment. (emphases again Prof. Blackman’s.)

CONGRESS

May 4 Senate Finance Committee, Subcommittee on Taxation and IRS Oversight, Hearing on Political Activities of Tax-Exempt Organizations: The Subcommittee, chaired by Sen. Sheldon Whitehouse, a determined foe of Republican use of tax-exempt entities for political purposes, heard from former FEC Commissioners Ann Ravel and Brad Smith, former IRS lawyer Phil Hackney, and Scott Walter from Capitol Research Center. The hearing featured witnesses invited by the Democratic majority speaking only to the majority Senators, and those invited by the Republican minority speaking only to the minority Senators. No actual dialogue or discussion, and many talking points, but little cross-ideological explanation. Witness statements and video available at the Subcommittee’s web page.

Joint Tax Committee Report on Campaign and Lobbying Activities of Tax-Exempt Organizations: In preparation for the May 4 Senate Finance Subcommittee hearing (see above), the staff of the Joint Tax Committee prepared an April 29 report explaining to Committee members and staff various elements of campaign and lobbying activities which different types of tax-exempt organizations can engage in. The 33-page report is moderate in depth, including such often-overlooked discussions as the application of IRC 527 tax on political activities of 501(c) organizations, when the prohibition on 501(c)(3) political intervention is not absolute, and the recent removal of the Schedule B filing requirement for non-c3s. The JCT report overlaps with, but does not duplicate, Sam Garrett’s (a former First Tuesday Lunch participant) 2021 Congressional Research Service report: The State of Campaign Finance Policy: Recent Developments and Issues for Congress.

STATES

Washington Secretary of State’s Office Mishandling “Multiple” Annual Filings, Erroneously Declaring Compliant Organizations “Delinquent:” Washington state began implementing a new Nonprofit Corporation law this year, patterned on the revised Model Act, which included numerous changes in operational requirements for nonprofit organizations. Now come the headaches, including a requirement that all mandatory annual reports, due April 30, must be filed on paper, not through the usual online process. What could go wrong? Yes, “multiple” organizations were declared delinquent for not filing required reports, when they had filed timely. No apologies, but at least they were sending emails admitting their error to those who wrote in to notify the office that they had a problem.

Texas Ethics Commission Says Ads Commenting on Legislators’ Support or Opposition to Legislative Policies Are Campaign Contributions: In Ethics Advisory Opinion 574 (May 12, 2022), the Texas Ethics Commission cited McConnell and WRTL to find that advertisements on legislative policies which praise candidates or legislators who support or oppose the policies are campaign contributions if they are coordinated with the candidate, legislator or political party. David Keating, who flagged the opinion, wrote: “a new AO from the Texas Ethics Commission … appears to make it very risky to run genuine issue ads on Texas state legislative issues, even when it is not an election year, if a group speaks to a lawmaker about the communications.”

Philanthropy Roundtable Publishes 50-State Case Studies on Anonymous Giving: The Philanthropy Roundtable has published 50 case studies of anonymous giving, one from each state, to illustrate the value of anonymity. The report and analysis are reactions to efforts to expose and punish donors to controversial organizations.

Democracy Capacity Releases New Practical Guides to Lobbying In Three New States: Sue Zachman, head of the Democracy Capacity Project, writes: “We published three new guides in our Practical Guidance – What Nonprofits Need to Know About Lobbying series this week – MI, MN and NH. We also updated the 10 existing Guides to include two new FAQs – one on how to use the Guide and the second on state vs federal lobbying rules. All of the Guides are publicly available both on our Democracy Capacity Project website and in AFJ/Bolder Advocacy’s resource library.

Washington Supreme Court Takes Up Value Village Deceptive Fundraising Appeal, Pitting Sweeping State Consumer Protection Law Against Charitable Solicitation: If a for-profit company is the public-facing solicitation mechanism for charitable organizations, can a powerful state Consumer Protection statute over-ride the First Amendment right to charitable solicitation? That question was just accepted by the Washington Supreme Court for review in Washington v. TVI, No. 100493-1 (h/t Robert Tigner). As “Value Village,” the name used in most U.S. states, TVI operates for-profit thrift stores but donates on average $150 million annually to well-known charities such as Big Brothers Big Sisters; it puts up lots of posters informing consumers of the relationships between the for-profit and the charities. The trial court found that consumers would be deceived as to whether the stores were themselves charitable, which would violate the State’s sweeping Consumer Protection laws; the appeals court reversed on general First Amendment principles. The Washington Attorney General petitioned the state’s Supreme Court for review over “an issue of first impression involving the significant First Amendment implications of a state CPA enforcement action against a for-profit company misrepresenting charitable interests.”

Mississippi Gov. Vetoes Bill Transferring Power to Levy Campaign Finance Fines From Ethics Commission to Secretary of State: The Daily Journal from Northeastern Mississippi reports that Governor Tate Reeves vetoed legislation that would have transferred campaign finance law enforcement from the eight-member state Ethics Commission to the Secretary of State. “The potential for abuse of power by the eight-member Ethics Commission is far less when juxtaposed with a single elected official who could seek to unscrupulously weaponize the power to further his political ambitions,” Tate wrote in his veto message. Republican Secretary of State Michael Watson said in a statement that the legislation was needed to streamline the enforcement process, currently split between three agencies.

Florida Gov. Signs Anti-Ballot Harvesting Bill: According to the Village-News, from The Villages (a massive senior-living community in Florida), Florida “Governor DeSantis signed another election law in a bar in Spring Hill in Hernando County. If you are planning to help people with Mail in Ballots,” you need to be aware that the new law makes it a felony for anyone who “distributes, orders, requests, collects, delivers, or otherwise physically possesses more than two vote by-mail ballots per election in addition to his or her own ballot or a ballot belonging to an immediate family member, except [in] … supervised voting at assisted living facilities and nursing home facilities …” There’s also a similar felony penalty for anyone who knowingly signs someone else’s name on a petition for a ballot position or an issue.

Do Ballot Harvests Grow in Sunny Philadelphia? And in South Philadelphia, where it’s always sunny, apparently ballot harvesting is a problem, as the Inquirer notes:

City elections officials last week received applications from more than three dozen Republican voters across a pocket of the neighborhood. Those applications requested that mail ballots be delivered not to the voters’ homes, but to P.O. Box 54705, an address registered to a recently formed GOP political action committee, according to state data. … Many of those voters told The Inquirer they have no idea why their ballots were sent there. Some said they never even applied to vote by mail. And yet one out of every six Republican ballot requests in the 26th Ward … listed the post office box. That made it the largest single destination for ballots in the city other than nursing homes or elections offices.

GENERAL

UPDATE: DHS “Pauses” “Disinformation Governance Board,” Jankowicz Resigns, Replaced by Former Clinton Officials: The antics resume after a “pause” in the new federal “DGB,” part of the Dept. of Homeland Security, that never had been explained or justified. DHS complained in a tweet that the DGB had been “grossly and intentionally mischaracterized”, (shocking!) and announced that Michael Chertoff and Jamie Gorelick would lead a “a thorough review and assessment” of the unfairly-maligned DGB.

DHS Forms “Disinformation Governance Board” or “DGB” Leads to Pandemonium: CNN: “Mayorkas responds to new disinformation board being compared to ‘1984.’” NY Post: “Disinformation board may be illegal and require vote of Congress, senator tells DHS.” NYT: “Partisan Fight Breaks Out Over New Disinformation Board. The board, an advisory group with the Department of Homeland Security, has become embroiled in the debate over the government’s role in policing online content.” WSJ: “Shut Up, the Disinformation Governance Board Explained.” And then word came that “DHS Standing Up Disinformation Governance Board Led by Information Warfare Expert:” Wilson Center’s Nina Jankowicz, as the DGB’s executive director. Jankowicz had, apparently, repeatedly cast Hunter Biden’s authentic laptop emails as Russian disinformation.  And, had enlisted Mary Poppins in a TikTok to “explain” disinformation in song. Really. (Make it stop!)

Perhaps Eugene Robinson at the Post summarized reactions across the board:

“I can see how disinformation requires monitoring. I can see how it requires fact-checking and refutation. But governance? How do you govern lies? Beyond the issue of the name is the still-mystifying question about what the board is supposed to do. At congressional hearings this past week, [DHS Secretary Alejandro] Mayorkas veered from pitching it as an effort to counteract Russian-style meddling in our elections to portraying it as an effort to protect Spanish-speaking migrants from lies told by the criminals who smuggle them into the country. He failed to make clear exactly how the board was supposed to accomplish either of these tasks.”

Bernstein: “Campaign Finance Abundance” Means “Every Serious Candidate … Will Be Adequately Funded:” Jonathan Bernstein writes in the Post that “One of the oddities of current campaign cash flows is that, every once in awhile, a hopeless general election candidate catches on with the party faithful — generally because he or she has a famous opponent who the party regards as a villain — and that hopeless candidate winds up raising enormous amounts of money. … Loosened laws and regulations have brought big new sources of money — some disclosed, some not — into play. Technological change combined with partisan polarization has produced the phenomenon of big little money — millions of dollars raised in small increments, mostly apparently given by party-loyal voters responding to partisan cues.”

Politico Breathlessly Reports The 2024 Presidential Candidates Are Already Raising As Much Money As They Can! “At least a dozen potential candidates for president have nonprofit groups that can raise undisclosed money aligned with them”, Politico reports. For those who remember our recent First Tuesday Lunch Group discussion on SuperPACs controlling aspects of candidates’ campaigns, here’s Luke Thompson (see note above under FEC) weighing in again: “Anybody thinking seriously about running for president in 2024 needs to have a large, sophisticated soft-dollar operation up and running by no later than this year’s general election,’ said Luke Thompson, a Republican strategist who runs Protect Ohio Values, the super PAC backing J.D. Vance in Ohio’s Senate race. With a small number of donors, you can do a lot of list-building, a lot of polling and research, and another really valuable thing you can do is keep staff members you’re going to hire and lock them down.”

Abu El-Haj: Does the GOP’s Ground Game Strategy in Minority Communities Signal a New Commitment or “Flailing?” For several years, Drexel Law Prof. Tabatha Abu El-Haj (usually cited for the “neglected” right of assembly) has been promoting her theory of First Amendment jurisprudence as including social considerations in addition to traditional rights. She has a new essay coming out soon in the Columbia Law Review promoting her theory of “associational party building” and questions whether the new GOP engagement centers looking to increase party recruitment in minority communities are working or not.

Has ACLU Changed Its Matrix for Deciding Which Free Speech Cases to Join? It’s not a new topic to question whether the ACLU has changed its traditional sweeping support for free speech. A recent exchange between law professors David Cole and Eugene Volokh has gotten more granular. Cole: “The ACLU Never Stopped Defending Free Speech.” Volokh, quoting Ira Glasser and Wendy Kaminer: “Glasser says he stands by the concerns that he had expressed before, for instance when he was interviewed by Bill Maher. The new Case Selection Guidelines (which he urges people to read), he argues, are a retreat from ACLU’s traditional viewpoint-neutral approach to protecting speakers.” Cole replies: “I remain mystified by their responses, which fail even to acknowledge the record I have pointed to of specific work we have done defending people with whom we disagree.”

Bari Weiss Shakes Up Top Media Leaders at Milken Conference – “Do a Better Job:” Bari Weiss, former editor at the NYT, spoke fiercely to her former employer and other top media outlets on a panel, titled “Adapt or Die? News Media at a Crossroads,” at the May 2 Milken Institute’s Global Conference:

No, because often the people that are trying to grab people by the shirt lapels and tell them that they’re crazy in that it isn’t true also tried to tell us that, you know, that Donald Trump conspired with Russia to steal the election, which turned out to basically not be true. Basically, not be true, guys. Let’s be honest. Do you know how many resources at a place like the New York Times and the Wall Street Journal went into that story? I mean, there’s a reason that people are skeptical of the legacy press. And I think it’s important to acknowledge.

The way to repair it I don’t think is by shaking people and say, ‘You’re so crazy that you don’t trust whatever the New York Times, the CDC,’ we could go on and on and on, right? The way to do it is by just trying to do a better job, I think. By just trying to actually report about the world as it actually is. But a lot of the people I think, who are trying to wake people up about it themselves can’t look in the mirror and apologize for things that they’ve gotten wrong that have created or at least contributed to, let’s say, the disintegration and the deterioration of trust.

Portland Still Rocking Protests (a recurring topic): It’s been a while since we looked into the activities of protests and protestors in Portland, Oregon, but there has been news in the meantime. For example, on April 30, when a Republican gubernatorial candidate tried to hold a campaign rally in Portland before the May 17 primary elections, black-clad protestors, allegedly Antifa members, attacked rally attendees with “mortars,” fireworks, paint-filled balloons, and smoke grenades. Two campaign attendees were injured. Video and photos from the candidate rally were quite vivid [caution advised]. Portland Police, blaming funding cuts, took 20 minutes to arrive. Meanwhile, Willamette Week reports that Portland voters are “angry;” the accompanying picture – “how the sausage is made” – is worth viewing the short article.

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