The flood of news about the Federal Election Commission continues, but there were a lot of other important highlights in July. 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 Extends Deadline to Respond to Google’s Advisory Opinion Request 2022-14 to August 5: Several times in the last few months, the First Tuesday Lunch Group has discussed Alphabet/Google’s Gmail spam filtering of Republican emails at dramatically different rates than other political emails. Quick summary from Axios.  Google has thrown up its hands at whether and how to remedy this question, which raises very interesting questions about contributions of “things of value,” and has now thrown the matter to the FEC in AOR 2022-14 (Google), asking whether it can resolve its questions by significantly changing its filtering algorithms to reduce any and all “spam” definitions for political mail. Thousands of people and organizations have submitted comments so far. So, the agency has extended the comments deadline to August 5.

OGC Rejects NRCC AOR for Guidance Under FEC v. Cruz for Senate, but Does It Have Statutory Authority To Do That? According to a comment filed in AOR 2022-15 (Rouda for Congress, discussed at the July First Tuesday Lunch Group meeting), the NRCC apparently filed a request for FEC guidance on how to proceed after the Supreme Court’s decision in FEC v. Cruz for Senate, No. 21-12, 596 U.S., 142 S.Ct. 1638 (May 16, 2022), but the Office of General Counsel rejected the request as “incomplete or otherwise not qualified.” The Holtzman Vogel attorneys who filed the request for guidance added a footnote that “2 11 C.F.R. § 112.1(d) purports to authorize OGC to exercise the Commission’s authority to determine the sufficiency of advisory opinion requests and appears to contravene 52 U.S.C. § 30106(c).” Nevertheless, the “helpful” OGC attorneys suggested that the NRCC file a comment on the subject as part of the FEC’s consideration of AOR 2022-15. Perhaps this is an outgrowth of the suddenly-loquacious Commissioners filing so many explanatory statements? Oh, and so as not to embarrass certain persons, we won’t point out a math mistake in a different AOR, but we will point out the old adage that you shouldn’t let lawyers near math may be untrue for a significant percentage of lawyers.

Commissioner Weintraub Fires A Solo Shot Across the Bow of Her Colleagues (#1) Who Believe That A Vote Against Enforcement Closes A Case: The pure legal firepower directed recently at the FEC’s ministerial acts has been of “shock and awe”-magnitude. Recently, for example, Commissioners who vote against enforcement in a particular matter have been issuing Statements of Reasons explaining their refusal to vote for agency action, as required by controlling judicial opinions. See, e.g., Statement of Reasons in MUR 7784, citing Nat’l Republican Senatorial Comm. v. FEC, 966 F.2d 1471, 1476 (D.C. Cir. 1992); Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352, 355 (D.C. Cir. 2020). Indeed, in May, Commissioners Dickerson, Cooksey and Trainor issued a Statement Regarding Concluded Enforcement Matters:

This cascade threatens to continue. But it need not. It is premised on the thin fiction that a deadlocked vote to close the file in a particular Matter Under Review (“MUR”) keeps the matter open perpetually—even where the Commission has voted on all the underlying merits. This assertion is unsupportable. In our view, the eight matters our colleagues refuse to close have, nevertheless, long concluded. Where, as in these cases, votes have been taken as to all parties and statements of reasons have been included in the file by the commissioners declining to move forward, there is no basis for claiming that the Commission is continuing to deliberate. In these cases, our work is done and a vote to close the file, while welcome and administratively convenient, is legally immaterial.

Id., at 1-2.

Now, Commissioner Weintraub has filed a solo Statement of Reasons in MUR 7422 (Greitens for Missouri) arguing, without further explication, that “A case remains open until it is closed by a successful motion to do so (which typically requires four votes), and motions remain in order until that happens. … Dismissing a case is a significant decision and does not happen by virtue of a partisan 3-3 vote on a motion that fails. There are no magical or automatic dismissals.” Note that in a July 7 Statement of Reasons for MUR 7516 (Heritage Action), Commissioner Weintraub noted that “Unfortunately, our Republican colleagues voted against moving forward and the Commission once again was unable to enforce the law.” (emphasis added).

Thus, the continuing impasse seems to have boiled down to whether “the Commissioner once again was unable to enforce the law” (Broussard and Weintraub) is the same as “Where, as in these cases, votes have been taken as to all parties and statements of reasons have been included in the file by the commissioners declining to move forward, there is no basis for claiming that the Commission is continuing to deliberate. In these cases, our work is done” (Dickerson, Cooksey and Trainor).  

Commissioner Weintraub Fires A Solo Shot Across the Bow of Her Colleagues (#2) Who Believe That “Prosecutorial Discretion” Should Be Nothing More Than A Straight Legal and Factual Analysis Of This Matter: In CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New Models”) and in CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“Commission on Hope”), the D.C. Circuit, citing numerous earlier cases, held that the FEC could exercise “prosecutorial discretion” to decide not to pursue enforcement action after a complaint. In her 2021 opinion, Judge Rao noted that “Here, the Commissioners who voted against enforcement invoked prosecutorial discretion to dismiss CREW’s complaint, and we lack the authority to second guess a dismissal based even in part on enforcement discretion.” 993 F.3d at 882. In New Models, the D.C. Circuit noted that the Commissioners who voted against enforcement of a defunct committee’s alleged violations wrote 32 pages of reasons why they rejected the enforcement recommendation, and one paragraph invoking prosecutorial discretion, 993 F.3d at 883, but that was enough:

CREW contends that the Commission’s decision must be judicially reviewable under FECA’s “contrary to law” standard. We disagree because a Commission decision that rests even in part on prosecutorial discretion cannot be subject to judicial review. This conclusion follows inexorably from our recent decision in Commission on Hope as well as other longstanding precedents recognizing the constitutionally grounded limits of judicial review over prosecutorial and administrative discretion.

993 F.3d at 884.

Nevertheless, Commissioner Weintraub recently dismissed entirely the reasons her colleagues gave for rejecting enforcement when they wrote too much in addition to invoking prosecutorial discretion: “This statement explains why our colleagues’ factual and legal analysis of this matter is all there is.” Id., at 2. Weintraub’s reasoning appears to be that if the Commission fails to achieve a vote to exercise prosecutorial discretion, then discretion was not exercised. Id., at 2-3. “Commissioners’ factual and legal analyses of matters cannot form the sole basis of an application of prosecutorial discretion: I voted to dismiss the matter as an exercise of prosecutorial discretion because I did not believe the facts and the law warranted moving forward. That is nothing but a factual and legal judgment with Heckler [v. Chaney, 470 U.S. 821 (1985)] fairy dust sprinkled inappositely on top.” Id., at 5.

In taking this approach, Commissioner Weintraub has posed an interesting question, though not the one she thought she was asking. Heckler recognizes that a court has no jurisdiction when prosecutorial discretion is invoked, and held that the Administrative Procedures Act was not intended to disturb that jurisdictional removal. “An agency’s decision not to take enforcement action … has traditionally been ‘committed to agency discretion,’ and it does not appear that Congress, in enacting the APA, intended to alter that tradition. Accordingly, such a decision is unreviewable unless Congress has indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standards for defining the limits of that discretion.” 470 U.S. at 835. Weintraub has restructured that question as:

When four or more commissioners vote affirmatively to exercise prosecutorial discretion in a matter, the Commission formally exercises the legal authority granted to it by the Act, in the bipartisan manner intended by the Act. That decision is entitled to the deference that any formal and final agency action is due…. Now, the opinion of two commissioners might be useful for a court to consider when deliberating upon whether a dismissal of an FEC complaint was contrary to law. But the opinion of two commissioners cannot work to actually exercise the Commission’s legal authority.

Id., at 3 n. 11 (quoting herself in a Statement requesting en banc reconsideration by the D.C. Circuit in New Models). Reliance on general APA principles to support judicial reviewability would not be sufficient; to carry her argument to its conclusion, Commissioner Weintraub must show that FECA itself contains the Congressional intent and standards required by Heckler.

She has not pointed out where, in FECA, “Congress has indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standards for defining the limits of that discretion.” 470 U.S. at 835. It’s an interesting question, but there’s no extant decision on all fours or even on point. The D.C. Circuit’s recent decisions don’t appear to have rested on any Congressional intent or standards for review. In fact, Weintraub’s own argument shows that there is no such Congressional tailoring. Which means that this isn’t a slam dunk view by any means, especially given the D.C. Circuit’s recent and historic acceptance of just such discretion.

Dead Men Tell No Tales, or Do Winding Up Payments to Campaign Vendors Constitute Personal Use of Campaign Resources After the Candidate Is Dead? In MUR 7310 (Mark Takai for Congress), the Commission’s battle of Statements of Reasons continued, but this time with a substantive and open question of what “personal use” means when campaign vendors have the power to convert campaign assets. Commissioners Dickerson, Cooksey and Trainor summed up their position by saying:

The Commission has consistently declined to second-guess what candidates and campaigns decide to pay their vendors and consultants—especially in the context of arm’s-length contracts for bona fide services. Absent a relevant regulation, our inquiry in this context is limited to whether there is a commercially reasonable relationship between the parties. We are satisfied of that here. Moreover, to proceed with enforcement on these facts would risk exceeding our authority, contravening the rulemaking process, and assuming an unauthorized price-setting role for which we are entirely ill-equipped. We decline to do so and, accordingly, declined to find probable cause to believe that Respondents violated 52 U.S.C. § 30114(b) by converting campaign funds to personal use.

Id., at 8.

Commissioners Broussard and Weintraub countered that payments after the candidate died are different. Here winding up payments went on for 18 months after the candidate’s death, and the vendors’ activities “dwindled” to the occasional payments to NGP Van and the like, while the payments of more than $5,000 per month continued. So, were the vendors (who now had control of the campaign’s assets) being overpaid, and was that prohibited payments of personal expenses, not by the candidate, but by the vendors? When the local newspaper got involved, more things started happening, and payments got much smaller. So the question ended up being what the three Commissioners opposing enforcement posed – when is it worthwhile for the agency to get into the weeds and when do the burdens of enforcement outweigh the benefit to the public? 

And the Hits Just Keep Coming: Democratic SuperPAC American Bridge has now filed suit against the Federal Election Commission for its alleged failure to rein in former President Donald Trump’s nascent 2024 presidential campaign. The claim is that the FEC is giving an advantage to Trump over other potential rivals by not requiring him and his organizations to register as a candidate or committee while he claims he has not yet declared his candidacy. Id., § 13.  American Bridge filed a similar FEC complaint in March, but the agency so far has not agreed with the claim.

More on Interim Regulation on Donor Disclosure for IE-Sponsoring Organizations: Following up on the continuing story of FEC stalemate and statements on how to respond to D.C. Circuit ruling that organizations sponsoring Independent Expenditures must disclose all donors, Wiley offers an analysis:

there are serious concerns with expecting the regulated community to adhere to an interim legal interpretation buried in a press release on the FEC’s website. Thus, FEC Chairman Allen Dickerson and Commissioner Shana Broussard led the Commission’s effort to reach an agreement on a more permanent solution. Ultimately, however, the Commission’s Republican and Democratic caucuses could not settle on new substantive text, and so they agreed the best course of action was to (1) remove the specific regulatory language invalidated by the court; and (2) add a citation in the regulatory text back to the district court decision just remove the specific regulatory language invalidated by the court. Rather than go through the traditional notice-and-comment process, the Commission made this change effective immediately so that the public would have guidance well in advance of the November 2022 election.

Should the FEC Use Heckler v. Chaney Even More Often? Robert Lenhard and Zach Parks from Covington have a new article out – “Picking Battles: The FEC and the Constitution – that argues the answer is Yes. “Perhaps no citation has been more favored in Federal Election Commission (‘FEC’) decisions over the past decade than Heckler v. Chaney, 470 U.S. 821 (1985), a Supreme Court decision that gives an agency broad discretion over which enforcement cases to pursue.  But there is a category of cases where the FEC is not employing Heckler when it should:  Cases where the constitutional support for the statute no longer exists.”

Can Save America – Trump Leadership PAC – Use Its Millions To Support 2024 Candidate Trump? Dartmouth College student (and apparently Forbes staffer) Kyle Mullins’s take on the issue in Forbes: “The moment he declares another run for the presidency, however, Trump’s grasp on that money will loosen. The exact amount of control he’ll lose is an open question—one that depends on how much the former president is willing to push campaign-finance boundaries and whether the Federal Election Commission is willing to rein him in.”

IRS

More Possible Bombshells From Judicial Watch’s FOIA Requests to IRS EO – IRS DoJ “Recap Memo:” Following up on Judicial Watch’s last release celebrating court orders forcing FOIA responses from IRS EO officials, Judicial Watch released the FOIA responses. “Judicial Watch today released new Department of Justice (DOJ) and Internal Revenue Service (IRS) documents that include an official “DOJ Recap” report detailing an October 2010 meeting between Lois Lerner, DOJ officials and the FBI to plan for the possible criminal prosecution of targeted nonprofit organizations for alleged illegal political activity. … The FBI and Justice Department worked with Lois Lerner and the IRS to concoct some reason to put President Obama’s opponents in jail before his reelection. And this abuse resulted in the FBI’s illegally obtaining confidential taxpayer information. How can the Justice Department and FBI investigate the very scandal in which they are implicated?” The Judicial Watch data dump included earlier FOIA releases as well: “Those documents contained an email exchange between Lerner and Nikole C. Flax, then-chief of staff to then-Acting IRS Commissioner Steven T. Miller discussing plans to work with the DOJ to prosecute nonprofit groups that ‘lied’ (Lerner’s quotation marks) about political activities.”

Are Private Schools Subject to Title IX Because of Their Tax-Exemption? Regan v. Taxation With Representation, 461 U.S. 540 (1983) rears its ugly head again. In M.H.D. v. Westminster Sch., 172 F.3d 797 (11th Cir. 1999), the Eleventh Circuit concluded that the appellant’s allegation that tax exemption qualifies as “federal financial assistance” under Title IX provisions was “neither immaterial nor wholly frivolous.” 172 F.3d at 802 n.12. Now Judge Richard Bennett of the District of Maryland has ruled in Buettner-Hartsoe v. Baltimore Lutheran High School Association, that, because Regan said that tax-exemption was a governmental subsidy, tax-exempt private schools are subject to Title IX.  

Nixonian “Enemies List” Redux? As recently explored in Americans for Prosperity Foundation/Thomas More Legal Center v. Bonta, tax records provide ready ammunition for government officials to use against “enemies;” Richard Nixon’s mis-use of IRS resources was the second Article of his 1974 Impeachment: “He has, acting personally and through his subordinates and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens; confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.”  Impeachment Of Richard M. Nixon, Articles of Impeachment, II(2), H. Rept. 93-1305, at 3 (1974).

So recent reports that former FBI officials James Comey and Andrew McCabe were subject to audits after refusing to heed calls from former President Trump raised a furor. Washington Post: “Congressional Democrats and Republicans on Thursday seethed over new reports that the IRS may have targeted President Donald Trump’s political enemies with audits, issuing shared calls — backed by the tax agency itself — for a full federal probe into the matter.”

To their credit, the Post reporters pointed out that the audits may have been triggered by the National Research Program (an existing program of intensive audits of high-income self-employed people – which Comey and McCabe became after being fired) and the IRS sprang into action immediately upon hearing of the audits to investigate if improper political influence triggered them. And, of course: “But political controversies still have dogged its work, including an incident more than a decade ago that left Republicans seething over audits targeted at conservative nonprofit groups, including those associated with the tea party. The trouble loomed large over then-President Barack Obama and helped bring about a generation of steep budget cuts at the IRS, depleting its staff and its ability to carry out audits that target tax cheats.”

Are Churches Really the Future of Public Policy Advocacy So They Can Protect Donor Privacy? Tax-exempt media site ProPublica publishes explainer about how the Family Research Council sought and received redesignation as a church in 2020. “According to documents obtained via the Freedom of Information Act and given to ProPublica, the FRC filed an application to change its status to an “association of churches,” a designation commonly used by groups with member churches like the Southern Baptist Convention, in March 2020. The agency approved the change a few months later.” Why? According to ProPublica (citing a 2020 Washington Post article), it’s so they can hide their financial activities, meaning not file a 990. More specifically, though, ProPublica does note that FRC’s parent organization, Focus on the Family, changed its designation to a church in 2016, issuing a statement that “it made the switch largely out of concern for donor privacy.” It would be quite interesting if the reaction to the weaponization of the 990 and “cancel culture” is classifying publicly-active policy organizations as associations of churches, but often the result of regulatory complexity is unexpected consequences.

Practitioner Tip: Sweat the Details: Along the same lines of regulatory complexity, the Wall Street Journal reports (paywall) that a widow lost a $465,000 deduction for a contribution to a museum because the museum forgot to include the usual “no goods or services were received in exchange for this gift” language in a five-page “contemporaneous written acknowledgement.” Even a late acknowledgement of the appropriate clause and a later apparent agreement with the Service couldn’t save the deduction because it wasn’t “timely.” The May 2022 Tax Court opinion in Albrecht v. Comm’r noted “We appreciate what appears to have been a good faith attempt by petitioner to substantially comply with the Code by executing the deed with the Wheelwright Museum. Substantial compliance, unfortunately for petitioner, does not satisfy the strict requirements of section 170(f)(8)(B).” And footnote 4 says: “In assessing whether a taxpayer has strictly complied with section 170(f)(8), the focus is exclusively on what the taxpayer obtained from the donee organization at the earlier of the time the return was filed or the filing due date.” Template, anyone?

COURTS

Court Holds Montana’s Political Committee Definition Too Vague: Montana has long been very active in attempting to control campaign and public policy advocacy. The Helena Independent Record noted: “Ed Butcher, a former Republican state lawmaker who maintains Legistats, a website well-known in conservative political circles that grades GOP legislators on party loyalty … and another defendant, Lonny Bergstrom, spent several thousand dollars of their own money in 2019 and 2020 traveling the state to give political presentations to local Republican groups. They acknowledged offering endorsements of legislators during some of those presentations. … Commissioner of Political Practices Jeff Mangan determined in September 2020 that the pair had become a political committee under state law and ordered them to register. Prior to Mangan issuing his decision, Butcher and Bergstrom sued the state in U.S. District Court in Helena, arguing the rule was unconstitutionally vague.”

Now, in Butcher v. Knudsen, the Ninth Circuit has ruled that the state’s definition of “political committee” was unconstitutionally vague, and did not give notice to unpaid advocates that their travel expenses might be enough to trigger registration and reporting obligations as a political committee:

Butcher and Bergstrom were engaged in core political speech that lies at the heart of the First Amendment. The protections against impermissibly vague laws, rooted here in the Due Process Clause of the Fourteenth Amendment, are at their maximum in this most sensitive area, in which insufficiently defined legal regimes can discourage valuable speech and invite unbalanced government regulation of less popular views. In this case, Montana law did not give Butcher and Bergstrom fair notice that the travel expenses associated with their hobbyist speaking engagements transformed them into a two-person political committee subject to demanding disclosure and reporting requirements.

Maine Can’t Stop Out-of-State Petition Signature Collectors: Courthouse News reports that “Maine’s requirement that only people who live in the state and are registered to vote there can collect signatures for ballot initiatives likely infringes on the First Amendment, the First Circuit said Thursday in upholding a preliminary injunction.” In We The People PAC v. Bellows, Chief Judge David Barron, faced with an assertion that there were only six qualified petition circulators in the entire state, slip op., at 33, wrote that: “The requirement thus would appear to bar the petition proponents from reaching into a pool of more than 250 million people of voting age to assist in the collection of signatures — and to engage in the face-to-face, interactive communication designed to bring about political change that accompanies that collection of signatures – that the Supreme Court has deemed core political speech.” Slip op. at 30-31.

Maine argued that its interests in preventing fraud and governing the petition collection process permitted this burden, but Barron noted that the question was controlled by the Supreme Court’s decisions in Meyer v. Grant, 486 U.S. 414 (1988), and Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), a pair of cases from Colorado which applied First Amendment principles to ballot petition circulators (and in a historical aside, whose cross-partisan cooperation among counsel and litigants laid some of the groundwork for the formation of the First Tuesday Lunch Group in 2010). The two cases combined to prohibit a state from arguing that it could use indirect means (such as voter registration requirements) to bar out-of-state circulators; We The People meant the First Circuit had to look beyond voter registration requirements to see if residency alone could be the basis for limiting circulators, which Meyer and Buckley had not reached specifically. Slip op., at 32, citing Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010) (Roberts, C.J., in chambers) (noting that difference). In fact, Chief Judge Barron extensively discussed the standard of review for a residency requirement for circulators and concluded that it would likely be subject to strict scrutiny despite some Circuits holding otherwise in past cases. Slip op., at 37-40.

Cruising Under the Radar: The First Tuesday Lunch Group has discussed the importance of the Supreme Court’s May decision in FEC v. Cruz for Senate, No. 21-12, 596 U.S., 142 S.Ct. 1638 (May 16, 2022). The Institute for Free Speech has now published an article – “Important First Amendment Supreme Court Decision Cruises Under the Radar” – explaining Barnaby Zall’s assertions about the importance of the decision in a bit more detail.

One Year After AFPF/TMLC v. Bonta:  On July 1, 2021, the Supreme Court handed down Americans for Prosperity Foundation/Thomas Moore Legal Center v. Bonta, holding that the California Attorney General’s policy of compelling tax-exempt organizations to file unredacted copies of their IRS Form 990, Schedule B lists of major donors was an unconstitutional “dragnet” which violated the First Amendment. One of the surprises during briefing in that case were the amici briefs filed by Chinese dissent groups, hoping to educate the Court about the real-world impacts of compelled donor disclosure. Now one of the amici has offered an op-ed celebrating the anniversary of its victory and cautioning that “It is no exaggeration to say that privacy is a matter of life and death for our members and donors as well as for our organization itself. Our work would be unsustainable without the ability to shield our supporters. The same is true for many other important causes supported by nonprofits throughout the United States.”

New Paper on Political Question Doctrine Says Lower Courts Are Using the Doctrine Widely; Supreme Court Reticence May Change: After the Supreme Court’s climate change decision in West Virginia v. EPA, No. 20-1530, using the “Major Questions Doctrine” (summary: Congress can’t hide statutory elephants in statutory mouse holes), there was much discussion about how, in that and other recent cases, the current Court was forcing Congress to do its job. Now, as a logical extension of forcing Congressional action, some people are wondering about the similar but different Political Questions Doctrine (summary: some things are reserved for the political branches, and are not reviewable by the courts), rarely addressed by the Supreme Court. In PQ Doctrine cases, if Congress acts (or doesn’t, in some cases), the courts affirmatively won’t step in to fill asserted gaps. For example, in Nixon v. United States, 506 U.S. 224 (1993), the Court rejected a challenge to an impeachment committee’s receiving evidence, saying that, despite the Constitution clearly saying ““The Senate shall have the sole Power to try all impeachments”, U.S. Const. Art. I, § 3, cl. 6, the word “try” “lacks sufficient precision to afford any judicially manageable standard review of the Senate’s actions.” 506 U.S. at 230. So, the Court would not limit the Senate’s reach without a basis in the Constitution.

In Rucho v. Common Cause, 139 S. Ct. 2484 (2019), the Court said that North Carolina’s congressional redistricting was a political question not subject to judicial review because ““the Constitution provides no basis whatever to guide the exercise of judicial discretion.” 139 S.Ct at 2506. As in Nixon, the Court was concerned about the difficulty of formulating a “clear, manageable and politically neutral” test for determining when gerrymandering is illegal.

Now University of Chicago Law Professors Curtis Bradley and Eric Posner have written a paper they describe as “the first empirical account of how the [Political Question] doctrine has operated in the lower courts since” the modern doctrine was first enunciated in Baker v. Carr, 369 U.S. 186, 217 (1962). They propose five findings:

• The lower courts apply the PQ Doctrine regularly, even after the Supreme Court has signaled a lack of enthusiasm for it.
• Second, the application of the PQ Doctrine is concentrated in the foreign affairs area, a finding that is not necessarily surprising but that until now has not been documented.
• Third, even though the academic literature on the PQ Doctrine is almost entirely focused on constitutional adjudication, the Doctrine is often applied by the lower courts in non-constitutional cases—that is, cases involving claims brought under federal statutes, state law, or international law.
• Fourth, the PQ Doctrine as applied in the lower courts is more prudential in its orientation than one would expect just by reading the post-Baker Supreme Court decisions. …
• Finally, “[c]ontrary to what has been assumed (and which is a key part of the “judicial abdication” critique), we show that the political question doctrine does not typically have the effect of permanently disallowing adjudication of an issue.”

CONGRESS

Bipartisan Group of Senators Introduce Legislation to Reform 1887 Electoral Count Act: Sen. Collins reports on the two multi-faceted parts of the reform proposal: the Electoral Count Reform and Presidential Transition Improvement Act and the Enhanced Election Security and Protection Act.

ByteDance Spends As Much on Lobbying as Google: Chinese-owned company ByteDance (which operates TikTok) reported spending more than $2.1 million in the last quarter on lobbying. CNBC reports that this 130% quarterly increase comes on top of almost $5 million in reported 2021 lobbying expenditures. Stewart Baker and his colleagues on Steptoe’s July 26 CyberLaw Podcast note that ByteDance’s 2022 lobbying budget is $8 million, which is about what Google spends.

STATES

In NY, InCEL Takes Over For JCOPE: For many years, political activity in New York state was regulated by the Joint Commission on Public Ethics. The Independent Ethics Commission Reform Act of 2022, part of New York’s FY2023 Budget Bill, created a new Independent Commission on Ethics and Lobbying to take over after JCOPE was challenged for cronyism, including okaying a lucrative book deal for former Governor Andrew Cuomo. Covington has a brief explainer predicting “This change in the enforcer and a new group of commissioners could spell more rigorous enforcement of the state’s lobbying disclosure and ethics rules.” There may be some confusion about the proper acronym for the new organization.

New Employee’s Connecticut Cause of Action Against Employer Who Requires Attendance at Political or Religious Meeting: Wiley offers an alert about a new Connecticut law, effective July 1, 2022, that gives a statutory cause of action to employees whose employer “subjects or threatens to subject any employee to discipline or discharge” because the employee refuses to “attend an employer sponsored meeting … the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters” or to “listen to speech or view communications, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.” The Alert notes significant First Amendment issues involved in drafting the statute: “The path to Senate Bill 163’s passage was cleared in 2019, when new Attorney General William Tong advised that laws might avoid federal preemption if they focused on the First Amendment rather than labor relations, and sought to protect employees’ ‘right to freedom of speech, freedom of religion and freedom of association’ including ‘the right not to be required to listen to speech’ rather than expressly seeking to regulate or prohibit employers’ speech.”

On One-Year Anniversary of AFPF/TMLC v. Bonta, This Year Four States (and 14 Overall) Have Enacted Statutory Protections for Donor Privacy: People United for Privacy reports: “On June 30, 2022, Missouri Governor Mike Parson (R) signed House Bill 2400 into law, an omnibus bill that establishes the Personal Privacy Protection Act (PPPA). Under the PPPA, state agencies are generally forbidden from requiring nonprofit causes to report the private information of their members and supporters to the government. Additionally, safeguards are included to prohibit the public disclosure of nonprofit donor and member information already collected by certain state agencies.” The ACLU of Missouri and other organizations backed the bill. PUP later reported that: “On July 25, 2022, New Hampshire Governor Chris Sununu (R) signed Senate Bill 302 into law, establishing the “Personal Privacy Protection Act” (PPPA). … The passage of this law in New Hampshire marks the fourth victory for donor privacy in the states this year, after Kansas, Virginia, and Missouri, and the 14th state overall.”

GENERAL

Federal Advisory Commission Rejects Need for DHS Disinformation Governance Board: To save face when the proposal to create a new governmental “Governance Board” at the U.S. Department of Homeland Security imploded in disarray two months ago, former Department of Justice officials Michael Chertoff and Jamie Gorelick were appointed as heads of a new DHS Homeland Security Advisory Council, and its Disinformation Best Practices and Safeguards Subcommittee. That Subcommittee has now issued its “Interim Final Recommendations” on the need for a “Disinformation Governance Board.”

The memo was short and to the point: the Subcommittee had met with “with leaders and subject matter experts from every DHS component that plays a role in the mis-, dis-, and mal-information mission” and “we have concluded that there is no need for a Disinformation Governance Board.” (emphasis in original.) Meanwhile, Nina Jankowicz, the former director of the “Governance Board” who channeled Mary Poppins to explain disinformation has vented publicly, but no one seemed to notice.  

New Private Sector “Campaign Registry” Increasingly Put In Charge of Validity of Campaign Texting: The First Tuesday Lunch Group has discussed the effect of new rules governing “10DLC” or ten-digit long code texts (sometimes called “SMS” or short message service), which has rapidly become one of the principal campaign communications tools. A key advantage of 10DLC texting is an “open” rate as high as 98%, meaning recipients often don’t discard the messages without reading them. Major online sites such as AT&T, Verizon and T-Mobile are increasingly turning to an outside agency to validate the reputation of text authors; the “big three” all use the “Campaign Registry” from Vienna, Virginia. “The Campaign Registry is a reputation authority for business messaging on 10DLC. … in which Brands and Campaign Service Providers (CSPs) are verified prior to being allowed to send messages. … Brands, CSPs, and messaging content are all known upfront, meaning both the ‘Who’ and the ‘What’ of a campaign are traceable.” Vox believes that this will be the end for political campaign 10DLC texting: “Campaigns may have lost their most effective — and annoying — outreach tool.”

Google Not Alone in Facing Suspicions of Manipulating Political Ads: It’s already hard enough to “prospect” for voters and contributors who don’t already agree with your views, but now there’s more evidence that the difficulties are increased by Facebook, one of Google’s principal competitors. Northeastern University reports that its “research scientist Piotr Sapiezynski recently told the European Parliament that Facebook’s ad delivery algorithms may be harmful both to political campaigns and to society at large. … Facebook’s algorithms make it more difficult and [up to four times] more expensive for political parties to reach the potential voters who, according to Facebook, don’t already agree with the advertised message. … This way Facebook limits political advertisers’ ability to reach audiences that, in Facebook’s estimation, do not share those advertisers’ political views,’ Sapiezynski said. ‘This is in stark contrast with advertising in traditional media, where reaching a voter costs the same, regardless of the identity of the political advertiser.’” The study suggests that Facebook’s partisan impact is an unintentional side effect of its seeking maximum profit. The testimony came as the European Union is considering “draft legislation provid[ing] for general transparency obligations of all actors involved in the financing, preparation, placement and dissemination of political advertising, both offline and online, and aims to protect individuals’ personal data by laying down rules on the use of ad targeting and amplification techniques. The proposal intends to increase transparency of political ads across the European Union before the upcoming European Parliament election in 2024.”

New Third Party Launches; Bump Pushes Back: Washington Post publishes an op-ed by former Cong. David Jolly, former Gov. Christine Todd Whitman, and former Presidential candidate Andrew Yang on why they have combined forces to launch a new cross-ideological third party called Forward. “The two major parties have hollowed out the sensible center of our political system — even though that’s where most voters want to see them move. A new party must stake out the space in between. On every issue facing this nation — from the controversial to the mundane — we can find a reasonable approach most Americans agree on.” Not clear how they will find these approaches and determine whether most Americans agree on them. “That’s why we’re proposing the first “open” party. Americans of all stripes — Democrats, Republicans and independents — are invited to be a part of the process, without abandoning their existing political affiliations, by joining us to discuss building an optimistic and inclusive home for the politically homeless majority.”

Then, regular Post columnist Philip Bump, who wrote about this last year, pushed back:

A key point from that article is that our constantly hearing about new “third” parties makes the inherent problem obvious. There are, of course, scores of other parties out there, a third and a fourth and a 20th party that sit in contrast to the Democrats and the Republicans. But since the point of a political party is to amass political power and since none of those parties have amassed much, they’ve been relegated to insignificance. There’s no powerful third party, no counterweight to the Democrats and the Republicans. Largely because the Democrats and Republicans have worked hard to make sure there isn’t one. …

This conflation of “independent” and “centrist” is a fatal flaw in this argument. Both parties are home to centrists (though the Democrats more heavily so). The parties have traditionally worked hard to make their positions palatable to those in the middle. … The detritus of past third-party efforts is all around us, unseen, unnoticed and impotent.

Gallup Finds That Almost No Americans Trust Newspapers and TV News; NYT Poll Finds Majority Believes American Democracy Does Not Work: Gallup release Media Confidence Ratings At All Time Low finds “Just 16% of U.S. adults now say they have “a great deal” or “quite a lot” of confidence in newspapers and 11% in television news.” At the same time, New York Times/Sienna College poll finds that:

A majority of American voters across nearly all demographics and ideologies believe their system of government does not work, with 58% … saying that the world’s oldest independent constitutional democracy needs major reforms or a complete overhaul. The discontent among Republicans is driven by their widespread, unfounded doubts about the legitimacy of the nation’s elections. For Democrats, it is the realization that even though they control the White House and Congress, it is Republicans, joined with their allies in gerrymandered state legislatures and the Supreme Court, who are achieving long-sought political goals.

Recall that one of the rationales for limiting political speech that presents an “appearance of corruption” is that public confidence in democracy will be undercut by such an appearance. “Democracy has long been thought to work “only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption.” United States v. Mississippi Valley Generating Co., 364 U.S. 520, 562 (1961); United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565 (1973); Buckley v. Valeo, 424 U.S. 1, 26-27 (1976). Yet the NYT poll is not even the most significant such finding: a long-running Pew survey of trust in government peaked at October 15, 1964, at 77%, fell to 27% on March 12, 1980, spiked to 55% on October 25, 2001, but then fell sharply to 15% on October 4, 2011. Pew Research Center, Public Trust in Government: 1958-2021.

In John Inazu’s Newsletter Some Assembly Required, the Term “Assembly” Is Very Important: The First Amendment expressly protects “the right of the people to peaceably assemble” yet the right to assemble has been called the forgotten right. Now John Inazu, Professor of Law and Religion and Political Science (interesting trilogy) at Washington University, and authors of numerous articles and books on the subject, has started a newsletter called “Some Assembly Required.” “One of the least known provisions of the First Amendment is also one of the most important. … The right of assembly allows people to form and gather in groups of their choosing and to express their values and beliefs even when—and perhaps especially when—those views challenge or upset government officials. It is one of our foundational civil liberties. And most Americans can’t even name it.” Inazu ties in public policy advocacy law with a reference to a recent decision familiar to us all: “Last year, the Court decided Americans for Prosperity [Foundation/Thomas More Legal Center] v. Bonta, an important case involving disclosure of membership lists of private organizations. During the oral argument, three Justices inquired about the right of assembly.”

Turley on “Harm and Hegemony: The Decline of Free Speech in the United States:” The Harvard Journal on Law and Public Policy has published GWU Law Professor Jonathan Turley’s new article on how the historical “boom or bust” cycle of speech suppression in the United States is currently in a rising and exceedingly dangerous suppression phase:

the United States is arguably living through one of its most serious anti-free speech periods, and there are signs that the current period could result in lasting damage for free speech due to a rising orthodoxy and intolerance on our campuses and in our public debate. Where fighting for freedom of speech was once a near-universal rallying cry, opposing free speech has now become an article of faith for some in our society. This has led to a rising movement that justifies silencing opposing views, often on the grounds that stopping others from speaking is, in fact, an exercise in free speech. This movement has both public and private components, but it is different from any prior period due to new technological, political, and economic pressures on the exercise of free speech.

Politico Touts Upcoming Political Memoir Any Given Tuesday: Ready to hear some juicy gossip about Democratic “stars?” Politico has you covered, as it covers the roll-out of Lis Smith’s new Any Given Tuesday: A Political Love Story, an “irreverent, intimate and honest look behind the curtain of modern political image-making — including her own.” The “famously aggressive political operative battle-honed in the brass knuckles politics of New York City and in red-state political tilts” reportedly trashes her own clients, though published excerpts didn’t reveal a lot more than had already appeared in the press. Still, it might be an entertaining insider view.

Institute on Policy Studies Says Inequality Distorts Philanthropy; National Taxpayers Union Begs to Differ: The Institute on Policy Studies, which describes itself as “a multi-issue research center conducting path-breaking research on inequality,” has published Gilded Giving 2022, which posits that: “As inequality has grown in the U.S., the nation’s charitable system is in danger of becoming a taxpayer-subsidized platform of private power for the ultra-wealthy. This poses risks to the independent nonprofit sector and our society as a whole.” Citing “warehousing” of donations by donor-advised funds, IPS recommends, inter alia, greater donor disclosure and higher taxation, as part of an overhaul of federal charitable regulation. The National Taxpayers Union Foundation doesn’t agree:

a set of bad policy recommendations based on unsound methodologies. There is already extensive oversight of donations and charity operations without the need for taxing charitable giving and creating a new federal bureaucracy. NTUF has documented in the past how the proceeds from taxing private philanthropy would represent a drop in the bucket for federal revenues, but would significantly hamper private altruism. Furthermore, invasive donor disclosure is dangerous and subject to close judicial review by the federal courts.

More Than Half of All Americans Believe That There Will be “Civil War” in the Next “Few Years:” A recent survey found that shocking statistic, which was ignored by headlines about a mere 50 million Americans believing in violence to settle political differences. The study, Views of American Democracy and Society and Support for Political Violence, was led by Garen Wintemute, Sonia Robinson and Andrew Crawford of the University of California at Davis.

News Story You Don’t Want to See For Your Client: From Mainstreet-Nashville: “Nashville auto magnate Lee Beaman, who is treasurer and chairman of Andy Ogles’ Congressional campaign, is also the sole donor for a super PAC that made a significant ad buy supporting Ogles, federal campaign finance disclosures show, raising questions of unlawful coordination.”

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