Characterizations, editorial comments, abbreviations and shorthand references are solely PPA Highlights author Barnaby Zall’s, and do not represent the views or positions of the Public Policy Legal Institute, the First Tuesday Lunch Group or their members and participants. Suggestions and corrections welcome.
Why We Protect Public Policy Advocacy Kerfuffles: St. Louis Post-Dispatch columnist Tony Messenger writes: “Toni Chritton Johnson heard a kerfuffle in front of the Howell County Courthouse and decided to take a look.”
There were several phones taking video that day, Sept. 7, in front of the courthouse. A group of First Amendment advocates and citizen journalists had gathered on the public sidewalk to protest an order signed by Presiding Circuit Court Judge Steven Privette. The order, issued by Privette in May, prohibited the recording of anybody entering or exiting the courthouse, even from public property, like the sidewalk or street. … Howell County[, Missouri] has had a proliferation of citizen journalists live-streaming interactions with law enforcement and other officials — not much different than what happens in the St. Louis region. Those folks didn’t take too kindly to being told they couldn’t stand on a public sidewalk taking video outside a public building. The First Amendment advocates were told by Howell County sheriff’s deputies that if they didn’t stop recording, they’d be hauled before Privette on contempt charges. “You can’t do that,” said Randle Daily, who posts videos on YouTube under the name Show Me State News. “If we’re on a public sidewalk, that’s our First Amendment right.” …
[I]n a rural area like Howell County, residents often feel helpless when they confront a judge, sheriff or other powerful local official. To take on such battles, they often turn to outside sources for help, like attorneys or journalists from out of town. In the courtroom, [Judge] Privette told the folks hauled into court that his powers extended beyond the courthouse steps. “You could use a telescope and take (photos or videos) from a mile away and you would be in contempt of this court’s order,” the judge said …
After leaving the courtroom, they went to talk to “the law” — Sheriff Brent Campbell — and suggested he shouldn’t let his deputies be used by Privette in an unconstitutional ploy. They created a community and social media stink. … Campbell, apparently, agreed. On Sept. 16, the sheriff issued a statement on Facebook saying that he was taking over courthouse security. That day, Privette rescinded his order. …
The citizen protesters stood their ground and won. “We got change done,” Daily says. “We the people helped make the change. It was voices, man. It was voices.”
FEC
More Unanimity by FEC, This Time In Rejecting Claims That Zuckerberg/Chan Grants to Election Administrators Violated FECA: In Matters Under Review 7854 and 7946, the Federal Election Commission unanimously rejected several complaints that grants from Facebook founder Mark Zuckerberg and his wife Priscilla Chan had violated federal campaign finance rules by giving hundreds of millions of dollars to support election administrators in state and local governments because there was no Reason to Believe that the Federal Election Campaign Act had been violated. The FEC closed the files on those MURs. The Washington Post has background and comment.
Is This The First Tag-Team Statement of Reasons from Commissioners Dickerson and Lindenbaum? Both FEC Chair Allen Dickerson and Vice-Chair Dara Lindenbaum are experienced campaign finance and constitutional practitioners, and the Statement of Reasons issued by the two FEC officials in MUR 7774 (Atone for Congress) reads like it was written by experienced practitioners:
Disclosing an acronym instead of a payee’s full name is, technically, a reporting violation; however, neither the F&LA nor the FGCR cite a prior matter in which the Commission has pursued an enforcement matter on such a theory. Instead, they discuss matters where the Commission pursued a payee reporting violation because a committee used an intermediary as a conduit with the intent to conceal the true provider of services. Implicit in such enforcement theories is that the payee in the disclosure report is incorrect. … By contrast, here, the Committee disclosed the correct payee, albeit in a way that provided little information to the public. … While we are sympathetic that the disclosure of the acronym WCPA, as opposed to the entity’s full name, prevented the public from identifying the company, we believe this type of reporting violation is more appropriately handled outside of the enforcement context.
“Show Me The Money!” Lest one think that the usual descriptions of FEC Commissioners as “Republican” or “Democratic” actually mean that Commissioners represent solely those partisan interests, MUR 7904 (Hansjorg Wyss, et al.) is a pleasant reminder that the designation is often only a description of which party nominated that Commissioner. The complaint in this MUR alleged that truly massive Democratic organizations which do engage in some election-related activities, including the Sixteen Thirty Fund, a 501(c)(4) tax-exempt organization whose 2020 Form 990 reported more than $410 million in spending that year, and the New Venture Fund, a 501(c)(3) charity whose 2020 Form 990 showed revenue of $965 million, should have been designated as political committees. Both organizations are part of the progressive Arabella Advisors network, often compared to the much smaller libertarian Koch network. But, as the Statement from the “Republican” Commissioners showed, of that more than $1 billion, much less than 20% was spent on political activities (including in years between 2015 and 2019, when the highest annual percentage was 8%), and the test for showing that an organization is a political committee is basically “show me the money” (at least the money spent on political activities as a percentage of all spending).
The FEC’s Office of General Counsel wanted to press ahead with investigations based on the activities of STF’s and NVF’s grantees and media coverage, but the Republican Commissioners said no:
Too often, the Office of the General Counsel’s approach to enforcement resembles the infamous command of the Queen of Hearts: “Sentence first – Verdict afterwards.” … This practice undermines the most fundamental precepts of due process and fair notice by threatening to enforce the Act under legal theories of which the public has no notice. That we cannot abide.
FEC Dismisses Case Involving Trump Fundraising Because of Impending Statute of Limitations: In MURs 7581 and 7614 (Yang/Gong), the FEC dismissed the complaint and closed the file despite the complaint’s serious allegations of illegal conduit contributions and illegal foreign national activity by various Republican organizations, including the Trump Victory Fund PAC. A Statement of Reasons by three Commissioners (Dickerson, Cooksey and Trainor) said, inter alia:
A combination of factors, however, including our inability to build a record in time to avoid an impending statute of limitations, led us to conclude that attempting enforcement in these Matters would not be a prudent use of agency resources. … Given the press of the statute of limitations, no time remained in which the Commission could find reason-to-believe (“RTB”) and conduct an investigation. Accordingly, OGC suggested that we engage in pre-probable cause conciliation with Ms. Gong. In other words, OGC’s enforcement strategy relied upon Ms. Gong conceding a violation despite insufficient information to find probable cause, which the Commission is required to do before filing suit, and no prospect of supplementing the record.
Three Commissioners Say “The Time Has Come” For the FEC to Consider A “Structural Defect” in Its Disclosing Requests for Additional Information: Three Commissioners (Dickerson, Cooksey and Trainor) issued a Statement of Reasons in MUR 7879, with a Footnote 8, raising a legal question about whether making Requests For Additional Information (a discovery-like process of, quite simply, requesting more information from a respondent) fall within FECA’s provision for confidentiality during an enforcement process: “the structural defect in the Commission’s processes of making RFAI’s public when they are issued … leaves entities vulnerable to overzealous would-be complainants scouring the FEC’s website for RFAI’s to weaponize against their political opponents.”
FEC OGC Files Opposite View From Last Month’s Assertion on Ending A Case and Closing Files: Remember last month when the FEC’s Office of General Counsel filed an Opposition to Summary Judgment in the FOIA portion of the long-running and complicated 45 Committee case arguing that a decision to end a case requires four votes? The FEC often has numerous cases going simultaneously, so perhaps it was just a regular “one hand doesn’t know what the other is doing” situation, or perhaps something has changed (or this analysis could just be looking too hard) when OGC filed a Reply Memo in another long-running complaint by Free Speech for People saying what looks like the opposite.
[P]laintiffs also argue that because the motion to dismiss the Trump Campaign failed to garner a majority of four votes, the Commissioners that voted in favor of moving forward with enforcement are actually the controlling group, even if there were only three of them. This is not the law. Long-standing Circuit precedent makes clear that the controlling group in a challenge to an FEC dismissal like this one is the group of Commissioners that declined to move forward with enforcement against the respondent named in the administrative complaint. That standard is properly applied to the group that voted to dismiss the Trump Campaign as an exercise of prosecutorial discretion. And under New Models and Commission on Hope, that forecloses judicial review, as recognized in recent decisions of this Court, including one that rejected the same argument plaintiffs make here that a majority of Commissioner votes is required to exercise prosecutorial discretion.
Id., at 2 (cleaned up).
Google Begins New Spam Filtering Test Program Approved by the FEC Last Month: Axios reports (h/t IFS) that the Gmail “pilot program” approved last month in AO 2022-14 has already begun ramping up.
“We expect to begin the pilot with a small number of campaigns from both parties and will test whether these changes improve the user experience, and provide more certainty for senders during this election period,” José Castañeda, a Google spokesperson, told Axios. “We will continue to listen and respond to feedback as the pilot progresses.” “During the pilot, users will be in control through a more prominent unsubscribe button,” he said. … Once political campaigns are enrolled in Google’s pilot program, they will no longer be affected by Gmail’s standard forms of spam detection, though Gmail will keep scanning messages for phishing and malware. Users will see a banner on the first email from participants in the program, asking if they want to keep seeing the messages, unsubscribe or report as spam.
Candidate Who Starred in a Movie by Clint Eastwood Did Not Use Tax-Exempt Organization to Violate Federal Campaign Finance Rules: A Eugene, Oregon, television station has an extensive story about how the Federal Election Commission dismissed a complaint filed against a congressional candidate accused of misusing a tax-exempt organization he started. Alex “Skarlatos was a member of the Oregon National Guard when he gained a measure of fame in 2015, helping to disrupt an attack on a train bound for Paris by a heavily armed man who was a follower of the Islamic State group. Hailed as a hero, he [Skarlatos, not the “heavily-armed man”] appeared on ‘Dancing with the Stars,’ visited the White House and was granted dual French citizenship. It also led to a role starring as himself in the Clint Eastwood movie ‘15:17 to Paris.’” But after an AP story questioned his use of campaign funds, End Citizens United filed an FEC complaint. The FEC found that he had not “improperly funded his campaign with money from a nonprofit he also controlled.”
IRS
IRS “Inadvertently” Published 990-T Data for 120,000 Taxpayers: The Wall Street Journal and National Review both covered a Sept. 2 letter in which the Department of the Treasury notified Congress, as required by the Federal Information Security Modernization Act, that a “major incident” had affected TEOS (the IRS’s Tax Exempt Online Search that replaced Pub. 78). The “incident” was a leak of machine-readable data from 990-T returns from exempt organizations, government entities, and retirement accounts, which is used to calculate taxable unrelated business income. The IRS routinely publishes this information for 501(c)(3)s, but the leak was of data from non-charitable organizations, apparently mainly individuals. Treasury noted:
The agency removed the errant files from IRS.gov, and the IRS will replace them with updated files in next few weeks. The IRS also will be working with groups that routinely use the files to update remove the erroneous files and replace them with the correct versions as they become available. The IRS will contact all impacted filers in the coming weeks. … However, the data did not include Social Security numbers, individual income information, detailed financial account data, or other sensitive information that could impact a taxpayer’s credit. In some instances, the data did include individual names or business contact information.
TIGTA Agrees to Review Again How Many IRS Employees Are Not Paying Their Own Taxes: The Treasury Inspector General for Tax Administration has agreed to Sen. Joni Ernst’s request that the Internal Revenue Service “conduct updated reviews of the IRS’s employment practices to determine how many agency employees are not currently fully compliant on their tax debts and how many rehires on the IRS payroll were previously separated for performance issues, including failure to fully pay their taxes, and what actions the agency is taking, if any, to remedy these compliance issues.” No deadline was mentioned. Ernst told the Iowa Capitol Dispatch that: “If even IRS agents can’t figure out how to properly file their taxes, she said, simplifying the tax code should take priority over enforcement.”
Kim Strassel Notes That c3s’ Ability to Register Voters Without Engaging in Political Activity Lends Itself to Abuse: We’ve all heard this issue raised many times. But Wall Street Journal columnist Kim Strassel calls out The New York Times for an article in which Democratic organizations complained that donors are not giving enough to “democracy-related programs” this election cycle: “confirming a longstanding scheme by which foundations and private donors funneling tax-exempt dollars into ‘charities’ that microtarget and register Democractic voters.”
CPEs Live On! New Technical Guide on c6s Cites CPEs Back to 1979: There has always been little IRS material dealing with 501(c)(6) organizations, which include trade and professional organizations, associations, and civic groups. Probably why 90% of the citations in the brand-new IRS Pub. 5710 (9-2022), Technical Guide 6: IRC 501(c)(6) Business Leagues are TwenCen, and almost all of the 21st Century cites are to ABA Retirement Fund v. U.S., 759 F.3d 718 (7th Cir. 2014), aff’g 2013-1 U.S. Dist. LEXIS 60086 (N.D. Ill. 2013). Now the IRS Technical Guide project combines the old Audit Technical Guides with other outside materials to produce the same result as the old Continuing Professional Education training guides in a newer format (using mostly the same language, including the usual “this is not citable precedent” boilerplate). The newest TG is the 42-page Pub. 5710 (9-2022), TG 6 IRC 501(c)(6) Business Leagues. Pub. 5710 adds specific audit material and is organized differently. Even nicer, it is publicly available and doesn’t require filing a FOIA request to see the IRS training material, which has replaced the annual publication of the CPEs for the last twenty years or so.
You can find a nice list of the older c6-related CPEs on pp. 41-42 of Pub. 5710, and then quickly search the still-active (but unpublicized) CPE list. Pub. 5710 does warn, however: “Note: Although the precedent cited in these CPE texts was current at the time they were published, some of the references may now be outdated.” In the c6 context, however, the risk may be lower.
New IRS EO Issue Update on Private Foundation Self-Dealing: For a look at an actual IRS Exempt Organizations Issue Update with more current material than Pub. 5710, check out the new and delightfully-named Private Foundations: Incidental and Tenuous Exception to Self-Dealing Under Treas. Reg. 53.4941(d)-2(f)(2). Who actually names a regulation “Incidental and Tenuous”? Isn’t that kind of waving a red cape before a reviewing judge who may be up-to-date on the latest Supreme Court decisions imposing the “turn square corners” doctrine on, inter alia, the IRS? But see CCA_2020111814425340; of course, this being tax, that may just be the Service on autopilot, rather than considering “New Thinking About Jurisdictional Time Periods in the Tax Code,” 73 The Tax Lawyer 1 (2019). Possibly why the “incidental and tenuous benefits doctrine” arises from 1983. Anyway, the “new thinking” IRS explanation relaxes the “highest fiduciary standard” for self-dealing: “However, the fact that a disqualified person receives an incidental or tenuous benefit from the use by a foundation of its income or assets will not, by itself, make such use an act of self-dealing. Thus, the public recognition a person may receive, arising from the charitable activities of a private foundation to which such person is a substantial contributor, does not by itself result in an act of self-dealing since generally the benefit is incidental and tenuous.”
Patagonia Founder Gives Billions in Stock to His Own 501(c)(4), Hailed for Philanthropy: In contrast to the New York Times’ coverage of last month’s Marble Freedom Trust “dark money” kerfuffle, when the newspaper covered clothing billionaire Yvon Choinard (h/t John Pomeranz) doing the almost the same thing, with stock in a company worth about twice as much, but retaining control, it praised him for his “philanthropy.” As the Post article noted: “Chouinard has also supported groups that work directly on elections, such as the League of Conservation Voters”, though the FEC records show recent direct contributions appear very small. At least Forbes noted that this wasn’t the first time a billionaire did this: “While this approach may seem novel in the United States, it has been deployed for decades in Scandinavia. It’s demonstrated that billionaires can give away their companies and continue to generate considerable profits, while also contributing substantially to social and environmental causes.”
Sec’y Yellen Wants U.S. Tax Filing to Become More Like Sweden’s: Speaking of Scandinavian best practices, the Hill reports from a speech to IRS employees that Treasury Secretary Janet Yellen has high praise for Swedish tax filing by text: “I recently came across a statistic that it takes an average American 13 hours to file a tax return. Compare that with Sweden. There, some taxpayers can file simply by replying to a text message. We can and must do better.”
Judicial Watch Releases More Lois Lerner and Holly Paz Deposition Transcripts, Says They “Knew Most Tea Party Organizations Were Legally Entitled to Tax-Exempt Status:” In 2017, Judge Michael Barrett sealed the depositions of Lois Lerner, head of the IRS Exempt Organizations Division during the “BOLO/TAG” Tea Party-targeting scandal that now bears her name, and her deputy Holly Paz, citing credible evidence of threats to the two officials. The depositions are gradually becoming unsealed, and Judicial Watch is releasing them in batches as it receives them, along with extensive commentary.
The September 8 release includes specific testimony about whether Lerner and Paz “knew” that the targeted organizations were qualified for IRS approval or recognition of status:
The unsealed Lerner and Paz deposition transcripts reveal through sworn testimony the bureaucratic tangle created by the Obama IRS to single out, delay and deny the processing of conservative, especially Tea Party non-profit groups’ applications for tax-exempt status and to disclose their donors’ names. At the same time, Paz admits under questioning that she knew from the beginning there was not sufficient legal basis to deny most of the targeted groups tax exempt status:
Q: [T]he organizations had filed applications representing …what they were organized for and what they have done and also their intended activities, and you thought that … for the majority of those applications that that would warrant the recognition of exemption?
***
The Witness [Paz]: My recollection is that at the time, my thinking was that the majority of the (c)(4) applications, while they may have indicated some amount of political activity, that we would not have enough basis to make a determination that that would be their primary activity and deny them exempt status.
Q: And, therefore, they would receive an approval or recognition of exemption?
A: Correct.
What It’s Really Like to Be One of Those Gun-toting IRS Agents: Robert Mazur, a former gold badge holder as an IRS special agent criminal investigator, describes his history in the Tampa Bay Times:
In 1971, the criminal division of the IRS went after the biggest drug traffickers, organized crime members, corrupt politicians and corporate tax cheats in the world. Our cases were front-page stories that set a bar for the American public. Those headlines created an atmosphere of voluntary compliance nationwide. Americans recognized that, if the IRS can get those mega-criminals, they can get anyone. We didn’t harass the average American, but our work sent the message that it made more sense to pay your fair share than to run the risk of prosecution. In 1971, the IRS criminal investigation division had a staff of 2,500 agents that dealt with the corrupt portion of a nation that at the time had 400,000 millionaires.*
It’s unfortunate that the last sentence can be read as there being 400,000 millionaires in “the corrupt portion of a nation.” But, in Mazur’s description, there’s a big portion of “go after the rich for being bad people.” The very next sentence after the quote above does it again: “Today, more than 50 years later, the IRS criminal investigation division has 2,200 special agents who battle with the dishonest portion of the more than 20 million millionaires who now actively evade income taxes.” Are there really 20 million millionaires who “evade,” not just avoid, income taxes?
COURTS
Judge Dismisses Trump’s 2016 Election Suit Against Hilary Clinton: Southern District of Florida Judge Donald Middlebrooks dismissed Donald Trump’s massive Complaint against 2016 opponent Hilary Clinton and 30 other defendants on September 8 because Trump “is seeking to flaunt a two-hundred-page political manifesto outlining his grievances against those that have opposed him, and this Court is not the appropriate forum.” Middlebrooks’ opinion savaged the Complaint and those who drafted it, for offenses such as making up fictitious defendants, misstating citations and sources, and many others. “It is not simply that I find the
Amended Complaint ‘inadequate in any respect’; it is inadequate in nearly every respect.” Id., at 63. Middlebrooks dismissed the case against the individual defendants with prejudice under Fed.R.Civ.Pro 12(b)(3) and against the U.S. without prejudice under 12(b)(1).
DC DC Rejects End Citizens United Cases Against Sen. Rick Scott and A Supporting PAC: U.S. District Judge Richard Leon of the District of Columbia rejected two complaints from End Citizens United (h/t Jason Torchinsky) that Sen. Rick Scott and the New Republican PAC violated coordination and other campaign finance rules. The FEC had dismissed the complaint about Scott failing to register as a candidate on prosecutorial discretion with a reasonable explanation, and Leon noted that such dismissals remove jurisdiction from the court. Slip op., 11-14. The second complaint, about coordinated activity, was rejected because ECU had failed to provide evidence to support its claims. Slip op., 14-17.
Fifth Circuit Rejects Texas Law Forbidding Large Social Media Companies From Discriminating on the Basis of Viewpoint, Setting Up Possible Supreme Court Review: “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.” So says a Fifth Circuit panel opinion by Judge Andrew Oldham in NetChoice v. Paxton, No. 21-51178 (5th Cir. Sept. 16, 2022), slip op. at 2.
We begin with the First Amendment overbreadth doctrine. It (1) offers a facial constitutional remedy that protects speech. It (2) does not apply here because if Section 7 chills anything, it chills censorship. And the Platforms’ parade of whataboutisms proves their real complaint is a purely speculative one about how HB 20 will be enforced. The Platforms are therefore not entitled to pre-enforcement facial relief against Section 7.
Slip op., at 8. Cue much gnashing of teeth.
In May, the 11th Circuit ruled the other way, in another case brought by NetChoice against Florida’s similar social media content-related law. Florida filed a Petition for Certiorari in the Supreme Court of the U.S. on Sept. 21, citing the conflict with the Fifth Circuit decision and a quote from Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017): “Social media has become ‘the modern public square.’” The Petition also says: “Under the Eleventh Circuit’s reasoning, social-media behemoths have a First Amendment right to cut any person out of the modern town square, for any reason, even when they do not follow their own rules or otherwise act in bad faith. That ruling strips States of their historic power to protect their citizens’ access to information, implicating questions of nationwide importance.” Id., at 3.
Would You Expect to See the Major Questions Doctrine in D.C. Bar Ethics Adjudications? Well, now it’s in the D.C. Bar’s complaint against former U.S. Dept. of Justice Acting Assistant Attorney General for the Civil Division Jeffrey Clark for writing a letter falsely asserting that DoJ had “‘identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.’ This statement was false. The Department was aware of no allegations of election fraud in Georgia that would have affected the results of the presidential election.” Office of Disciplinary Counsel, D.C. Bar, Specification of Charges, at 4, ¶ 15. The Specification of Charges also similarly cited several specific statements about Georgia’s 2020 election conduct, which the ODC asserted were false. Id., at 4-5, ¶¶ 16-19. The letter with the false statements was never sent. Id., at 8, ¶ 30. ODC said that Clark’s conduct violated D.C. RPC “8.4(a) and (c), in that Respondent attempted to engage in conduct involving dishonesty, by sending the Proof of Concept letter containing false statements” to the President and other federal officials and “8.4(a) and (d), in that Respondent attempted to engage in conduct that would seriously interfere with the administration of justice.” Id., at 9, ¶ 31.
Clark filed a response to the ODC charges with the D.C. Court of Appeals Board on Professional Responsibility, listing 54 defenses to the charges. At least 24 of the defenses challenge in some fashion the Board’s jurisdiction over a federal official engaged in the conduct of his office. In addition, Defense 18 raises the Major Questions Doctrine: “The D.C. Bar lacks jurisdiction over the conduct of the Respondent referred to in the Charges because 28 U.S.C. § 530B does not clearly delegate to the Department of Justice the power to confer on the District of Columbia authority to regulate lawyers serving in the Department of Justice, especially not those interacting with the President to deliberate and decide on questions that reach the President for resolution. See, e.g., West Virginia v. EPA, 142 S. Ct. 2587 (2022); Hickman v. Train, 426 U.S. 167 (1976).”
Law Prof. Jonathan Adler noted the Major Questions Doctrine claim (though pointing out that he has “some major questions about this claim”): “As a consequence of the West Virginia [v. EPA] decision, litigants challenging governmental actions have found major questions lurking in all manner of regulatory disputes. In some cases, invocation of the major questions doctrine makes sense (see, e.g., concerns about the SEC climate disclosure rule or the student-debt forgiveness plan). In other cases, not so much.”
Is A Political Question Lurking in Moore v. Harper, the Independent Legislature Theory Case? As mentioned last month, there is a possible “Political Question Doctrine” bar to court jurisdiction in the challenge pending in the U.S. Supreme Court in Moore v. Harper, No. 21-1271, the North Carolina redistricting case involving the power of state courts to review their legislatures’ redistricting (sometimes called the independent state legislature doctrine). The political question inherent in judicial review of redistricting decisions was discussed at some length in Rucho v. Common Cause, 588 U.S. —, 139 S. Ct. 2484, 2498-99, 2506-07 (2019). Now law Prof. Derek Muller has a nice analysis in ELB that there’s a PQD issue lurking in the case, and notes that “one concept has received essentially zero examination: the political question doctrine.” Also in ELB, Prof. Rick Pildes has a discussion of what the Independent State Legislature Doctrine does NOT do.
Is the Supreme Court “Barricading Precedent?” Stanford Law Prof. Jeffrey Fisher opines in Politico: “it is critical to understand that the aggressive conservative supermajority has also embraced a new, quieter way of annulling other long-established legal rules — a tactic I call barricading precedent. Any assessment of the court’s fidelity to past judicial decisions should include a tally not just of decisions the court overrules but also those it walls off from any future extensions.” Fisher cites Justice Kavanaugh’s statement in an oral argument as a summary of his new “barricading precedent” theory: “Accept it, but don’t extend it.”
But some might point out that historically the Court has always decided cases on as narrow a basis as it felt appropriate, and Fisher doesn’t actually engage with that concept, other than to argue: “A core feature of the rule of law is that judicial decisions must be worth more than their resolutions of specific controversies in the past.” These two visions would seem compatible, not in conflict; just depends on issue definition and tailoring.
CONGRESS
Disclose Act Again Fails to Pass; Doctoral Student Suggests Tax Reform Act of 1969 As a Model Promoting Both Passage and Transparency: Yet again, the “Disclose Act,” a proposed restructuring and removal of donor protections, failed to pass Congress. In the wake of its failure, Bo Blew, “a PhD candidate in history at Purdue University, his research explores the influence of private foundations in modern American political history,” writes an op-ed in the Washington Post (h/t IFS) promoting “a solution” to “the dark money problem” based on the lengthy process of creating modern private foundation regulation in the Tax Reform Act of 1969. “In 1969, President Richard M. Nixon signed legislation that set rules to bring transparency and order to private giving in the name of safeguarding the public interest. The bill was more than a half-century in the making and showed that legislators in both parties could come together to ensure that the tax code encouraged charity without allowing for chicanery that starved the public of critical tax dollars. … At the core of the debate that produced the 1969 bill was the question of the proper level of influence for the wealthy in public affairs. By working together, presidents and legislators from both parties, along with federal agencies, created institutions with greater oversight that garnered greater public acceptance.”
DNC Resolution Opposing “Dark Money” Passes, but DNC Resolution Opposing “Dark Money” in Democratic Primaries Fails: Not to keep quoting Sen. Sheldon Whitehouse’s unrelenting opposition to organizations which do not disclose their donors, but his rationale has always been: “Yes, progressive groups receive anonymous donations, because Democrats have to play by the rules Republicans set, or else we unilaterally disarm. We came late to the game, but now we’re there. The difference is this: Democrats want to clean up this god-awful dark-money mess; Republicans created it and protect it.” But the Democratic National Committee just considered two resolutions condemning “this god-awful dark-money mess”, but only passed the ”toothless” one supporting Sen. Whitehouse’s proposed legislation and rejected the one calling for the DNC to “establish procedures for possible disciplinary action” for the use of “dark money” in Democratic primaries. Progressives supporting both resolutions were “outraged.” The Washington Post’s Katrina vanden Heuvel wrote: “The real worry about partial campaign finance reforms — that no candidate or party can ‘unilaterally disarm’ — doesn’t apply here. The DNC would be reforming contests among competing Democrats — and any dark-money ban would surely help curb the interference of Republican interests in those elections.” Meanwhile, the Wall Street Journal notes that at least some Democratic organizations have already spent $40 million promoting Trump-related candidates in Republican primaries; the Washington Post says the total’s more like $53 million.
Senate Finance Report Urges Revitalized IRS Whistleblower Program, Which Has Withered in Recent Years: The Hill reports that the IRS Whistleblower program has an enviable 6-to-1 return on rewards paid to those who report tax cheats, targets the wealthiest taxpayers (which is a good thing in some circles), is favored by Members from both parties and may help reduce the “tax gap” in money owed, but not paid, to the government each year. Yet the Whistleblower program has been starved of funds for several years, and: “‘It is extremely frustrating for whistleblowers who come forward because it’s a process that takes on average about eight years from start to finish — if the IRS even collects money at the end of the day,’ Jeffrey Neiman, an attorney and a former prosecutor with the Department of Justice’s tax fraud division, said in an interview.” It is unclear whether the recent influx of money to the IRS will spin off some additional funds to ramp up this program.
“My Youth Is A Strength;” Gen Z In Congress? CNN points out that this is the first election year that members of Generation Z are eligible to serve in Congress, and profiles Karoline Leavitt, 24, who won her primary for New Hampshire’s 1st Congressional District. As she claimed her party’s nomination, Leavitt told the crowd: “As many of you know, my youth is one of the many reasons that I felt compelled to run for Congress in the first place. Because it’s my generation of Americans – your children, your grandchildren – who are not being served well by the current state of our education system, our media and our entire culture.”
DEPARTMENT OF JUSTICE
Can Suggestions for Campaign Speeches Violate FARA Registration Rules? Politico notes that the Department of Justice is prosecuting businessman Tom Barrack for not registering under FARA: “Prosecutors plan to argue that from 2016 to 2018, Barrack and Grimes sought to influence public opinion by suggesting Trump’s campaign singled out the UAE for praise in a campaign speech on energy issues. Barrack, meanwhile, would talk the UAE up as an important ally in media interviews, incorporating feedback and talking points from UAE officials and at times providing real-time updates.” FARA practitioners warn the prosecution is a particularly aggressive approach to FARA enforcement: “‘The difference here is that the case is being used in a non-espionage context, which is a relatively rare way to use this particular law,’ Robert Kelner, an attorney at Covington & Burling who advises clients on the Foreign Agents Registration Act, said ahead of the trial. … ‘I think it will affect the posture of the department and going after unpaid influence activities,” said Matthew Sanderson, a partner at Caplin & Drysdale who co-chairs the American Bar Association’s FARA Task Force.”
How Far Will DoJ Investigation of Jan. 6 Participants Reach? CNN is running a series of stories about new subpoenas issued to up to 30 former Trump campaign aides and officials seeking documents and testimony about the “Stop The Steal” effort surrounding congressional certification of the Electoral College results. “The flurry of subpoenas in recent days came just ahead of a 60-day quiet period that the DOJ generally seeks to avoid the appearance of influencing elections with politically sensitive investigations.” The investigation touches on tax-exempt organizations that may have been involved in conducting or funding allegedly illegal activities and their lawyers. “While those around Trump have brushed off the congressional investigation into the riot on January 6 as political, there is a palpable shift in demeanor when it comes to the Department of Justice probe, as allies and advisers recognize the significance of being looped into a federal investigation, according to multiple people in Trump’s orbit.”
Is the FBI, Using Facebook, Engaging in the Same Type of “Dragnet” the Supreme Court Found Unconstitutional in AFPF/TMLC v. Bonta? In addition to the State Attorneys General lawsuit against Facebook and other social media companies (see below), New York Post columnist Miranda Devine reports that the FBI is now coordinating with Facebook over algorithmic screening of vast numbers of private messages and posts, apparently in hopes of sifting out a few Americans who might be engaging in January 6-type acts of civic violence:
Under the FBI collaboration operation, somebody at Facebook red-flagged these supposedly subversive private messages over the past 19 months and transmitted them in redacted form to the domestic terrorism operational unit at FBI headquarters in Washington, DC, without a subpoena. … These private messages then have been farmed out as “leads” to FBI field offices around the country, which subsequently requested subpoenas from the partner US Attorney’s Office in their district to officially obtain the private conversations that Facebook already had shown them.
Before you shrug off the story as hyperbole from a right-wing media outlet (albeit one that proved correct about the authenticity of Hunter Biden’s laptop), consider the reaction that goes far beyond the NY Post’s column from Stewart Baker, well-known national security lawyer and expert at Steptoe (note that Baker doesn’t necessarily agree that these allegations are true):
The Post article offers some compelling details. My favorite is the agents’ complaint that the project produced a very large volume of data about people who weren’t really threats, thus wasting investigative resources. If you want to inspire FBI agents to discover their inner civil libertarian and blow the whistle on a surveillance program, nothing does the job better than giving them lots of intrusive but unproductive make-work. But as the story is written, it has one big problem. The conduct it describes would violate the law in a way that neither the FBI nor Facebook would likely be comfortable doing. Federal law mostly prohibits electronic service providers from voluntarily supplying customer data to the government.
Then consider what the U.S. Supreme Court said in AFPF/TMLC v. Bonta, 594 U.S. __ (2021): “The upshot is that California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases involving filed complaints. … Our cases have said that disclosure requirements can chill association ‘[e]ven if there [is] no disclosure to the general public.’” As mentioned last month in connection with the FEC’s recent Advisory Opinion 2022-14 (Google), the legal issue occurs when the Federal government can do indirectly through coordination with private persons what it cannot do directly. “It is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish. … But good intentions as to one valid objective do not serve to negate the State’s involvement in violation of a constitutional duty. ‘The existence of a permissible purpose cannot sustain an action that has an impermissible effect.’” Norwood v. Harrison, 413 U.S. 455, 465, 467 (1973) (cleaned up).
As Baker points out,
And, as with content moderation, no one would be surprised if mass Silicon Valley criminal referrals were biased against conservatives. (That bias would be built in if Justice is using an existing grand jury tied to January 6 to generate the subpoenas.) So, assuming I’m right, it’s fair to ask how any such effort was designed, how aggressively conservative complaints were turned into emergency threats to life and limb, who’s overseeing the process to prevent overbroad seizures of legitimate speech, and whether the same thing could be done to Black Lives Matter, environmental groups, animal rights campaigners, and any other movement whose more extreme followers have sometimes lapsed into violence.
FBI Persecution of “Whistleblower” Who Allegedly Tried to Protect Citizens’ First Amendment Rights: And, again according to the New York Post, the FBI has in-house protest issues as well. New York Post columnist Miranda Devine writes on “FBI Hero” whistleblower who refused to participate in investigations he felt violated the First Amendment. Sen. Chuck Grassley apparently believes this whistleblower and dozens of others: “In a letter to FBI Director Christopher Wray on Aug. 11, Grassley alleged that a committee of FBI field agents had been to see Wray to express the concerns of agents in all 56 field offices across the country that ‘the FBI has become too politicized in its decision-making.’ Grassley further alleges ‘those concerns were removed from this year’s final report’ of the FBI’s Special Agents Advisory Committee. Wray ignored Grassley’s letter along with a dozen other letters from the dogged Iowa senator alleging gross malfeasance at the bureau.”
And Devine followed up with a column on support from 30 ex-FBI officials: “Thirty former FBI agents, including a retired deputy assistant director, head of counterterrorism and five SWAT team members, have spoken out publicly in support of suspended FBI whistleblower Stephen Friend. … In his whistleblower complaint to the Department of Justice inspector general, Friend alleged that the FBI has been manipulating case-file management in order to falsely inflate the threat of domestic terrorism, and using unconstitutional excessive force against political dissenters. … Terry Turchie, former deputy assistant director of the FBI’s Counterterrorism Division, describes Friend as ‘a model example of what FBI agents nationwide should be.’”
STATES
New York State Financial Superintendent Protected by Qualified Immunity For Official Acts Which Might Suppress Speech: Illegality is not protected by the First Amendment, nor is advocacy of illegal actions in some circumstances. Brandenburg v. Ohio, 395 U.S. 444 (1969). But what about advocating the purchase of insurance that might cover violations of state law?
In another case involving the question of what government may do indirectly through influence over private businesses and tax-exempt organizations (see prior note under DoJ on the FBI and Facebook), the Second Circuit just issued a decision (h/t Institute for Justice’s Short Circuit) reversing a District Court dismissal of a First Amendment challenge to the New York State Superintendent of Financial Service’s attempt to dissuade insurers from participating in a tax-exempt organization’s offering insurance coverage that would cover intentional violations of state law. Maria Vullo, the Superintendent, issued a press release stating that “business can lead the way and bring about the kind of positive social change needed” and demanded that insurers stop offering coverage through the tax-exempt organization. Slip op. at 11. This scenario becomes more believable when you know that the exempt organization is the National Rifle Association, and the insurance coverage “provided coverage for losses caused by licensed firearm use, including criminal defense costs resulting from using a firearm with excessive force to protect persons or property, even if the insured was found to have acted with criminal intent. In other words, it insured New York residents for intentional, reckless, and criminally negligent acts with a firearm that injured or killed another person.” Slip op. at 6-7.
At least some in the financial press were concerned about the First Amendment aspects of Vullo’s threats. As Brian Knight of FinRegRag noted: “Is New York using bank regulation to suppress speech? … The argument is that the NRA’s positions are so dangerous that they are harmful to the community and pose a risk to the reputation of any [financial institution] that works with them. This could fairly be seen as an attempt to restrict the NRA’s ability to operate in the political arena and marketplace of ideals.” The District Court agreed and held that the NRA had properly plead a First Amendment claim.
The Second Circuit reversed and remanded, saying “the First Amendment does not impose a viewpoint-neutrality requirement on the government’s own speech; a government official has the right to speak for herself (and her agency) and to select the views she wishes to express. Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009) ... Under the government speech doctrine, public officials are generally free to favor certain views over others when they speak. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207-08 (2015).” Nevertheless, “although government officials are free to advocate for (or against) certain viewpoints, they may not encourage suppression of protected speech in a manner that ‘can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.’” Slip op. at 26.
The Second Circuit decided that the official documents, including Vullo’s press release, were government speech but not facial threats, and could be construed as attempts to protect financial institutions whose health she oversaw. Slip op. at 31, 33. That was enough to support qualified immunity against First Amendment claims.
“Texas Goes After Pro-Bono Legal Help:” In 2015, a Washington State Court struck down a Washington Public Disclosure Commission attempt to block the Institute for Justice, a 501(c)(3) tax-exempt organization which, inter alia, attempted to protect citizens’ First Amendment rights, from providing pro bono legal assistance to a small organization promoting the recall of a County official. The state campaign finance regulation agency believed that providing legal assistance, though free to the neighborhood organization, was a thing of value worth $307,000 to the committee, but not reported as a contribution. Judge Katherine Stolz of the Superior Court of Washington for Pierce County rejected the agency’s claim because “Defendants’ treatment of free legal assistance to a political committee in a federal civil rights lawsuit as a ‘contribution’ … is unconstitutional under the U.S. Constitution.” Id., at 3. (Disclosure: Barnaby Zall, author of this Public Policy Legal Institute Vox PPLI blog post, personally was an expert witness for the plaintiff in this case, but PPLI was not involved.)
Now, the Wall Street Journal in a September 29 editorial notes (h/t IFS) that the Texas Ethics Commission is attempting to apply a similar rule against the Institute for Free Speech, another (c)(3) organization, from providing pro bono legal aid to a candidate: “Under the commission’s draft advisory opinion, a public-interest firm that provides free legal services to a candidate would be making an in-kind campaign contribution. Legal billing adds up quickly, so any firm that offered pro-bono help would also risk a change in its tax-exempt status and disclosure of its donors.”
More on Stacey Abrams’ Fight Against Georgia Ethics Commission’s Charges of Campaign Finance Violations: Last month, the Atlanta Journal-Constitution broke a story about the Georgia Ethics Commission charging two organizations associated with gubernatorial candidate Stacey Abrams with failing to report millions of dollars in campaign-related activity. Now the organizations – the New Georgia Project (a c3) and the New Georgia Project Action Fund (a c4) – have sued the Commission, charging that its definition of a regulated “campaign committee” is unconstitutionally broad. The AJC story repeats, with more detail, the organizations’ attorney’s defense that:
The groups’ lawyer, Aria C. Branch, told the commission last month that the nonprofits’ donations were not earmarked for political activity and were used for operating expenses. Political canvassing that the groups did was done as a subcontractor for another pro-Abrams political committee and not subject to disclosure by the New Georgia Project Action Fund. Those expenditures were disclosed by the political committee that hired the New Georgia Project Action Fund.
It’s unclear what the AJC was using to calculate its reported figures. The NGP’s 2018 990 for the year covered by the Commission’s complaint does not show any Schedule R showing a related organization and lists no political expenditures. The 2018 990 for New Georgia Project Action Fund has an incomplete Schedule R which describes sharing of facilities and employees with related organizations, but doesn’t identify the organizations. None of the 2018 expenditures appear to match what the AJC reported. Nevertheless, the “subcontractor” defense seems under-supported by the tax filings.
Zuckerberg Interview About FBI Warning to Meta Fuels State Attorneys General’s Lawsuit About Censorship: And as long as we’re mentioning Norwood v. Harrison “indirectly” issues (see above under DoJ for more on FBI and Facebook), Facebook founder Mark Zuckerberg told podcast host Joe Rogan that “his organization was warned in 2020 of ‘some kind of dump’ before the New York Post published its initial story about Hunter Biden’s laptop.” That interview (which wasn’t the first time Zuckerberg had revealed the FBI’s comments) added fuel to a lawsuit filed by the Attorneys General of Missouri and Louisiana alleging that dozens of Administration officials have similarly coordinated private social media coverage. The Wall Street Journal editorialized (paywall) about “One nagging question in the social-media age is how online platforms like Facebook and Twitter choose to “moderate” speech—and why, and whether the government is leaning on them to step it up. Hundreds of pages of emails between federal officials and the big social sites were recently dropped in court, and they make for instructive, if not definitive, reading.” The New York Times offered a “what-aboutism” editorial involving banning books in schools.
A Contentious Year for Ballot Initiatives: Bolt looks at battles about ballot initiatives: “Ballot measures have come under assault nationwide, as Republican leaders have made parallel moves in many states to trip up voter-initiated referendums. The Ballot Initiative Strategy Center has tracked the introduction of dozens of bills in recent years, many of which have become law. Some of the more onerous restrictions imposed new geographic distribution requirements for petition-gathering, which tends to reduce the power of cities, or they made petition gathering far more impractical.” (Not really a new topic.)
There ARE Laws Against Lying In Elections But You Have to Look At The State Level, Say UNC Researchers: North Carolina schools have been active recently in producing interesting research on election-related issues, probably the most famous at the moment being North Carolina State scholars research that sparked claims that Gmail’s spam filters discriminate against Republicans, resulting in the FEC’s AO 2022-14, approving Google’s new “pilot program” for spam filtering mentioned above. Now UNC Chapel Hill law professors David Ardia and Evan Ringel have written a law review article they say demonstrates that: “Given the ubiquity of this speech, especially online, one might assume that there are no laws against lying in politics. It turns out that the opposite is true. Although the federal government has largely stayed out of regulating the content of election-related speech, the states have been surprisingly active in passing laws that prohibit false statements associated with elections.”
Democracy Capacity Project Expands Practical Guidance Series on Nonprofit Voter Assistance to 12 States: Sue Zachman (who, AFAIK, may be the only electrical engineer/lawyer in the First Tuesday Lunch Group) adds to her report at the last First Tuesday Lunch Group luncheon about the Democracy Capacity Project’s FAQs outlining state law compliance issues for nonprofits in their civic engagement, democracy support, and GOTV work in the states. “We’re now live with the first 12 states … These resources are free to all and are published under a Creative Commons license that allows wide dissemination and use in the current format. … Seven more states should be posted” in the last week of September.
GENERAL
English Police Arrests of Protestors at Queen’s Remembrance Events Highlight 2022 Changes in English Free Speech Law: The Washington Post noted that English police were cracking down on protestors who disrupt or hold signs at events marking the death of Queen Elizabeth II. “People have been picked up by police as they shouted against the crown, heckled royals marching by and carried anti-monarchists signs — and in one case, a blank sheet of paper. The police crackdown on such protests has raised questions about freedom of speech during this fraught period for the United Kingdom.” The Wall Street Journal followed up with “God Save Our Fundamental Freedoms,” a critique of Scotland’s “cracking down” on free speech “for some time.”
English law on free speech is different from U.S. law but had been moving much closer in the last twenty years. Traditionally, English law, based on common law which did not even mention a free speech right, had no First Amendment-like statutory protection for free speech. That changed under the Human Rights Act of 1998 to something like the First Amendment, described by Lord Steyn in the House of Lords’ decision in Reynolds v. Times Newspapers Ltd., [2001] 2 A.C. 127 (H.L.), ¶ 207, as “a constitutional right to freedom of expression in England.”
In 2022, however, English law changed markedly in the other direction. The new Police, Crime, Sentencing and Courts Act 2022, which received Royal Assent on April 28, 2022, includes a new Part Three, covering, inter alia, protests and protestors. For example, Section 78 of the new law widens previous “public nuisance” law by creating new conditions and penalties for “intentionally or recklessly causing public nuisance,” and Section 79 grants police sweeping powers to block or condition “one-person protests.”
In comparison, the U.S. Supreme Court said in Snyder v. Phelps, 562 U.S. 443, 457-58 (2011), peaceful, though hurtful and odious, protest at funeral is fully protected by the First Amendment:
The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.
Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection … is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).
And England is not alone. Germany is also “cracking down” on protests in the absence of a version of the First Amendment, notes Jacob Sullum in Reason, citing a New York Times article: “Americans who are alarmed by online ‘hate speech’ and ‘misinformation’ tend to resent the limits that the First Amendment imposes on government intervention against objectionable content. But German authorities do not suffer from such constraints, and the consequences should give pause to critics who are sympathetic to the idea that freedom of speech sweeps too broadly in the United States.”
Politico’s New Owner Has A “Contrarian” Approach: The Washington Post profiles new head of the company that bought Politico for $1 billion last year:
A newcomer to the community of billionaire media moguls, [Mathias] Döpfner is given to bold pronouncements and visionary prescriptions. He’s concerned that the American press has become too polarized — legacy brands like the New York Times and The Washington Post drifting to the left, in his view, while conservative media falls under the sway of Trumpian “alternative facts.” So in Politico, the fast-growing Beltway political journal, he sees a grand opportunity. “We want to prove that being nonpartisan is actually the more successful positioning,” he said in an interview with The Washington Post. He called it his “biggest and most contrarian bet.”
Many Different Types of Memes: More than you wanted to know about different types of memes, a view on the origins of “Stop the Steal,” and much more in an Atlantic column from three researchers who wrote Meme Wars: The Untold Story of the Online Battles Upending Democracy in America, “Leading media expert Joan Donovan, PhD, veteran tech journalist Emily Dreyfuss, and cultural ethnographer Brian Friedberg pull back the curtain on the digital war rooms in which a vast collection of antiestablishmentarians [my spell-checker reports this is not a word, as it appears pretty much only in this book and its promotional efforts] bond over hatred of liberal government and media.”
Vox PPLI 