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.

IRS

IRS Reduces Massive Backlog, but TIGTA Still Not Happy: Federal News Network reports that the Internal Revenue Service “processed more of its tax return inventory in the last 12 months than at any 12-month period in its history” and reduced its tax form processing backlog from a high in June of 20.5 million returns to 10.5 by the end of October. But the Treasury Inspector General for Tax Administration reported that the agency still has a ways to go and backlogs will continue through 2023.

IRS Leaks 112,000 990-T Forms AGAIN: Last September the IRS mistakenly put 120,000 Form 990-Ts filed by individual online; only 990-Ts filed by exempt organizations are supposed to be posted online. Those were taken down. But Bloomberg Tax reports that now 112,000 of them were AGAIN put online by IRS vendor Accenture, which mistakenly put up most of the original list instead of a filtered list. The second leak was apparently on November 23, and a “third party” notified the Service on December 1 of the error. “‘The IRS is continuing to review the situation to identify opportunities to establish additional controls and strengthen existing controls to protect taxpayer information,’ said Treasury spokesperson John Rizzo.”

IRS Funding Still Controversial As Republicans Prepare to Take The House: The Wall Street Journal reports that the IRS budget fight heats up as Republicans look to annual funding talks with Democrats over broader spending package. “The dispute previews intense partisan fights next year about the size and reach of the tax agency, with Democrats leaning on the IRS to boost enforcement and tax revenue and Republicans looking to limit its expansion.”

Republicans “Celebrate” a 2% Cut to IRS Modernization Funding in the Omnibus: As a follow-on to the prior item, so claims The Hill.  Apparently, it’s a ploy to entice Republicans concerned about the $1.7 trillion omnibus temporary funding bill: “Senate Republican Whip John Thune (S.D.) on Tuesday called that funding reduction a ‘selling point’ with Republicans who are on the fence about voting for the omnibus. But GOP sources acknowledge that the funding cut is relatively insignificant compared to the $80 billion the IRS received from the Inflation Reduction Act, which passed Congress this summer under the budget reconciliation process without a single Republican vote.”

Latest Edition of Steven Sholk’s Annual Guide to Election Year Activities By 501(c)(3) Organizations Is Available: Invaluable resource for practitioners. 650 pages of dense summaries.

Will the IRS Delay of New 1099-K Requirements Affect Its Announcement of a Crack Down on Resellers of Taylor Swift “Eras” Concert Tickets? The American Rescue Plan Act of 2021 lowered the reporting threshold for issuing a third-party facilitator 1099-K forms from $20,000 to $600 per transaction. Although the Service just announced a delay in implementing the 1099-K for gig workers, it also announced a big push against scalpers who don’t report their reselling of the hottest (and hardest to get) concert tickets, including Taylor Swift’s “Eras” concert tour. Tickets to the first show in Glendale, Arizona, are going for as much as $9,000, so the really big scalpers might trigger the existing requirement anyway.

FEC

Lindenbaum 2023 FEC Chair, Cooksey Vice-Chair: The officers of the Federal Election Commission are elected each year, with the seat rotating between sitting Commissioners. On December 15, the Commission elected Dara Lindenbaum as Chair and Sean J. Cooksey as Vice Chairman for 2023.

FEC Legislative Wishlist: The basic federal campaign finance statute, the Federal Election Campaign Act, is complex and sweeping, but not complete; more precisely, conditions and campaigns change constantly, and the Federal Election Commission often requires Congressional action to keep up. The FEC’s most recent legislative wishlist, approved on December 15, includes highest and high priorities, plus “other improvements.” Highest priorities include: salary increases for FEC staff, amending the organic statute to legitimize the administrative fines program that saves money and staff time, and expanding the “foreign national” prohibition to include “substantial assistance” and to cover state and local ballot initiatives and recalls. Media coverage focused on a lower priority “stop scam PACs” proposal, a long-time goal now claimed to be made more urgent by concerns about massive Trump fundraising; though that would be fairly messy, the FEC’s 1994 regulatory response to a petition for rulemaking by “Citizens Against David Duke” demonstrated that it would be possible to do more than nothing.

CONGRESS

Did Ways & Means Democrats Mess Up What Should Have Been a Triumphal Release of Trump’s Tax Returns? The House Ways & Means Committee has fought for years to review the former President’s tax returns, using the rationale that it needed them to review the IRS’s internal policy of automatically auditing a sitting President’s taxes. After receiving the returns, the Committee, on a hurried party-line vote, decided to release six years of returns to the public after Christmas. NYU Law Prof. Daniel Hemel has a nice post in Lawfare that analyzes the events and contends that the W&M Dems really messed up what should have been a blockbuster release. “In short, the IRS appears to have fallen down on the job. But Democrats on the Ways and Means Committee — who promised to carry out a thorough review of the IRS’s presidential audit program, yet instead made a hair-trigger decision to release Trump’s tax returns — fell down on the job as well. And as a consequence, a pox on both Trump and the IRS has become a pox on the House too.” The always-quotable Prof. Josh Blackman goes further: “Did the Ways & Means Committee play the Supreme Court on Trump’s tax returns?” “Going forward, the Court may be less likely to give deference to a House Committee seeking to perform oversight of the executive branch. The Ways & Means Committee may have won the battle, but the prognosis for the war looks bleak.”

FARA Reform Bills Move (Slightly): Nobody is happy with the venerable Foreign Agents Registration Act, which requires those who represent foreign countries to register with the Department of Justice. DoJ’s attempts to expand FARA through prosecutions have failed miserably, including with recent high-profile acquittals. Prior recent attempts to amend the almost century-old law have also sputtered out.

Now, however, Covington reports that legislative efforts are gaining speed, and “one provision nearly became law.” DoJ announced that it would support the complete elimination of the FARA registration exemption for those who register under the Lobbying Disclosure Act and would draft its own legislative recommendations.  The Senate has passed a pair of bills to tighten the LDA exemption and to provide the DoJ’s FARA Unit with more enforcement tools. But not everything is smooth sailing for FARA reform: a bipartisan Senate amendment to the National Defense Authorization Act to revise the LDA exemption was dropped in the bill’s conference report.  

Is Arabella the Queen of “the liberal pop-up group ecosystem”? A new descriptor has entered the discussion of public policy advocacy organizations: “the liberal pop-up group ecosystem.” The Washington Examiner offers a critique of the Congressional Integrity Project, a new project in “the liberal pop-up group ecosystem” powered by grants from Arabella Advisors-managed progressive organizations. H/t to law Prof. Rick Hasen (!). “The newly relaunched Congressional Integrity Project will include rapid response, investigative researchers, pollsters and eventually paid media designed to put Republicans on the defensive”, Politico reported. “It’s designed to serve as the party’s ‘leading war room’ to push back on House Republican investigations, [founder Kyle] Herrig said in an interview. He added that the project would ‘investigate the investigators, expose their political motivations and the monied special interests supporting their work, and hold them accountable for ignoring the urgent priorities of all Americans in order to smear Joe Biden and do the political bidding of Trump and MAGA Republicans.’” The organization is not alone in focusing on the upcoming investigations: “For the final two years of Biden’s term, Republicans will be aided in their oversight push by a coalition of outside conservative research groups that have already mapped out potential targets and started digging into issues ranging from Hunter Biden’s business dealings to immigration policy.”

DEPARTMENT OF JUSTICE

Prosecutors File Both Civil and Criminal Campaign Finance Violation Charges Against FTX Founder Sam Bankman-Fried: Sam Bankman-Fried, a young cryptocurrency exchange mogul who headed major firm FTX, may have been one of the biggest political contributors of 2022, with (according to his own announcements) about $80 million in campaign contributions between Democratic and Republican candidates. Federal authorities have now filed both criminal and civil charges against him for campaign finance violations. CNBC has a roundup and history.

Serious Questions for the FBI on Social Media Censorship Requests Heightens Concern Over Whether the FBI Itself Broke Federal Civil Rights Laws: If you asked informed Americans whether the First Amendment can be applied to private social media companies like Twitter, probably the vast majority will say no. After all, as the Supreme Court noted three years ago, a “private entity is not ordinarily constrained by the First Amendment.” Manhattan Community Access Corp. v. Halleck , 587 U.S. ––––, ––––, 139 S.Ct. 1921 1944, 204 L.Ed.2d 405 (2019). But that’s not always the case, and one such situation is when the government is so entangled with the allegedly unconstitutional activity that the private company becomes a “state actor.” Or as the Court noted in Biden v. Knight First Amendment Inst. at Columbia Univ., 141 S.Ct. 1220, 1226 (Mem.) (2021),

For example, although a “private entity is not ordinarily constrained by the First Amendment,” Halleck, 587 U.S., at ––––, ––––, 139 S.Ct., at 1930, 1944, it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint. Ibid. Consider government threats. “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.” Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 68 (1963). The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. See ibid. ; Blum v. Yaretsky , 457 U.S. 991, 1004–1005 (1982). Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.

Which adds a distinct dimension to the current woes of the FBI.

The release of the “Twitter Files” documented extensive requests from the FBI to Twitter requesting “moderation” (censorship or banning) of various accounts, for which the FBI “reimbursed” Twitter $3.4 million and which the FBI complained to Twitter about if the request wasn’t satisfactorily responded to. A growing number of scholars are now warning that this FBI-Twitter relationship, and similar backdoor requests to other social media outlets to block or punish speech on line, could indicate federal civil rights crimes under 18 U.S.C §§ 241 (conspiracy to violate constitutional rights) and 242 (deprivation of constitutional rights). Instead of forthrightly facing these concerns, the FBI is ducking and weaving.

CNN believes that there’s nothing there: “Elon Musk is misleading the public — again. The embattled billionaire, perhaps seeking to distract from the chaos he has wrought at his social media company, is making grossly misleading claims about Twitter and the FBI. And those claims are being blindly amplified to millions by Fox News and the rest of the powerful right-wing media machine which seems to have no interest in the pesky truth and instead has repeatedly shown they’ll contort stories to fit preconceived and erroneous narratives.” The network also reported that FBI executives are denying an express tie to the Hunter Biden story: “But so far, none of the released messages explicitly show the FBI telling Twitter to suppress the story. In fact, the opposite view emerges from sworn testimony by an FBI agent at the center of the controversy. And in interviews with CNN, half a dozen tech executives and senior staff, along with multiple federal officials familiar with the matter, all deny any such directive was given.”

But, of course, that sort of express “directive” is rarely found. Here are two IRS examples from the tax-exempt organization world in one blog post: a “random” audit driven by White House pressure, and the Lois Lerner 2010 targeting scandal, supposedly sparked by an “increase” in IRS Form 1024 applications by “Tea Party” groups, but really caused by pressure on Lerner’s IRS Division: “everyone’s screaming at us to do something about Citizens United.” The common thread in many of these “no express directive” situations? A lot of pressure on an agency to “do something” leads an agency to do something that it constitutionally couldn’t do, so it tries to be “creative.”

There’s actually a lot of FBI pressure on Twitter to consider even without a directive about the Hunter Biden laptop. The December 23, 2022, CNN story acknowledges, for example, specific requests by FBI agent Elvis Chan to Twitter for review that do not involve Hunter Biden’s laptop: “Among the messages given the most attention from Musk and other critics are a series of emails between Roth and Elvis Chan, an FBI special agent based in San Francisco, where he focuses on cybersecurity and foreign influence on social media. On October 13, the day before New York Post story published, Chan instructed Roth to download ten documents on a secure portal. Roth responded, ‘received and downloaded – thanks!’” At least two of those documents were sent as “potential evidence of election-related crimes, such as voter suppression activities.”

“Voter suppression” is one of those phrases which is highly-elastic, stretching to cover a lot of things which are highly-protected by the First Amendment. Here, a federal agency asked a social media company to block speech on the basis that it could be “potential evidence of election-related crimes.” The FBI says it does not tell the company what to do, but “provides critical information to the private sector in an effort to allow them to protect themselves and their customers.” No pressure there?

As Robby Soave noted in Reason (h/t IFS): “FBI agents communicated regularly with content moderators at Twitter, and frequently asked for tweets to be taken down for allegedly violating the platforms’ policies against election-related misinformation. The conversations were so numerous—including emails and weekly meetings—that a top Twitter staffer came to describe the relationship between the company and law enforcement as ‘government-industry sync.’” State actors cannot run roughshod over constitutional rights in the name of efficiency; even law enforcement agencies must respect statutes and constitutional controls in place to prevent that. As the Supreme Court recently reiterated: “the prime objective of the First Amendment is not efficiency.” AFPF/TMLC v. Bonta, 141 S. Ct. 2373 (2021), quoting McCullen v. Coakley, 573 U. S. 464, 495 (2014).

GW Law Prof. Jonathan Turley has a rundown of polls and other Twitter File-related trends that indicate significant interlocking activity: “Despite the refusal of many in the media to cover the Twitter files, nearly two-thirds of voters believe Twitter shadow-banned users and engaged in political censorship during the 2020 election. Seventy percent of voters want new national laws protecting users from corporate censorship. … On Friday, Twitter released additional information showing that the FBI and CIA actively pushed for censorship, supplying lists of accounts to be suspended or banned. … The evidence continues to establish a system of censorship by surrogate or proxy.  While the First Amendment applies to the government and not private corporations generally, it does apply to agents or surrogates of the government. Twitter now admits that such a relationship existed between its former officials and the government.”

Columbia Law Prof. Philip Hamburger has a similar take in the Wall Street Journal:

Amid growing revelations about government involvement in social-media censorship, it’s no longer enough to talk simply about tech censorship. The problem should be understood as gov-tech censorship. The Biden White House has threatened tech companies and federal agencies have pressed them to censor disfavored opinions and users. So it’s time to ask about accountability.

Will there be legal consequences for government officials, for the companies, or for their personnel who cooperate in the gov-tech censorship of dissent on Covid-19, election irregularities or other matters? Cooperation between government officials and private parties to suppress speech could be considered a criminal conspiracy to violate civil rights. The current administration won’t entertain such a theory, but a future one might.

National Review’s Andrew McCarthy, a former prosecutor, echoes Hamburger’s assessment about using 18 U.S.C. § 241, the civil rights conspiracy statute (“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same …”), in these cases: “If I as the prosecutor encourage the private person to steal the documents and bring them to me, … the law would deem the private person to be an agent acting on behalf of the government. … [T]he unconstitutionality of government suppression of free speech is well known and basic.”

Now add in the fact that the FBI paid Twitter almost $3.5 million for its “cooperation:”

In an email dated Feb. 10, 2021, an unidentified Twitter employee told then-deputy general counsel Jim Baker and then-general counsel Sean Edgett that “we have collected $3,415,323 since October 2019!” The email, published by independent journalist Michael Shellenberger, explained that Twitter’s Safety, Content & Law Enforcement (SCALE) division had instituted a “reimbursement program” in exchange for devoting staff hours to “processing requests from the FBI.” … The bureau would often send the company lists of users they wanted investigated for terms of use violations.

Why would this be important? Because it would add 18 U.S.C. § 242 (deprivation of civil rights by “state actor”) to the § 241 civil rights conspiracy claim discussed above. And the FBI was not at all reluctant to pressure the company, as recently as August 2022, using phrases like “forehead knockers” (“situations in the FBI view there is no reason why we would not have complied”), and “Twitter’s lower rate of compliance in comparison to other platforms.” A capable prosecutor could easily consider this an agency relationship for purposes of determining whether an action was truly “private sector choice” or a constitutionally-circumscribed “state actor” relationship. See, e.g. United States v. Classic, 313 U.S. 299, 326 (1941) (“Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.”). The constitutional concerns are expanding.

And the FBI does this routinely. In a statement to Fox News about declining to reveal other “reimbursement” payments to social media outlets other than Twitter, an FBI spokesperson said: “In a statement shared with Fox News, an FBI spokesperson said, ‘The correspondence between the FBI and Twitter show nothing more than examples of our traditional, longstanding and ongoing federal government and private sector engagements, which involve numerous companies over multiple sectors and industries. … It is unfortunate that conspiracy theorists and others are feeding the American public misinformation with the sole purpose of attempting to discredit the agency.’” Except, of course, these examples involve highly-protected political speech and action, not just commercial activities, which are usually protected by … the FBI’s expertise and investigations, which doesn’t seem to have happened with these back channel “recommendations” (at least not on the basis of the explanations given so far). It isn’t “conspiracy theorists … feeding the American public misinformation with the sole purpose … to discredit” the FBI; it’s legitimate investigation of serious concerns about whether federal civil rights laws were broken. These concerns should be treated with far more care than has been shown by the FBI’s “Look! A Squirrel!” and “we didn’t give an express directive” responses.

COURTS

D.C. Circuit Denies Rehearing En Banc in Challenge to FEC’s Use of Prosecutorial Discretion to Dismiss Complaints: In CREW v. FEC, No. 19-5161, (D.C. Cir. 2021), the D.C. Circuit denied rehearing en banc of a decision rejecting the appeal filed by Citizens For Responsibility And Ethics In Washington seeking to keep an FEC Complaint alive after three Commissioners voted to dismiss the Complaint. The Commissioners, following Circuit precedent, issued a lengthy explanation of their decision not to begin enforcement proceedings, but also added an independent determination that they would exercise prosecutorial discretion to avoid a needless use of agency resources. CREW wanted the courts to recognize prosecutorial discretion only when it was the only or primary reason for the dismissal, but not enough sitting appeals court judges agreed with that theory. 

Buckeye Institute Sues Under AFPF/TMLC v. Bonta to Declare the Collection of Schedule B Unconstitutional: The Supreme Court in AFPF/TMLC v. Bonta, 141 S. Ct. 2373 (2021), found unconstitutional the California Secretary of State’s “dragnet” program to gather lists of donors on IRS Form 990 Schedule B in part because the Schedule B compelled speech (the disclosure of confidential donor information) without a strong enough governmental interest or narrow enough tailoring of the remedy to outweigh the undoubted chill on freedom of association. “A substantial relation [to an important governmental interest] is necessary but not sufficient to ensure that the government adequately considers the potential for First Amendment harms before requiring that organizations reveal sensitive information about their members and supporters. Where exacting scrutiny applies, the challenged requirement must be narrowly tailored to the interest it promotes, even if it is not the least restrictive means of achieving that end.” 141 S.Ct. at 2384. (Three of the six Justices in the majority opinion filed a concurrence saying that this “exacting scrutiny” standard was too lax, and would have preferred strict scrutiny.)

The Court found that Schedule B was essentially useless to California’s efforts to protect against charitable fraud: “Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California’s fraud detection efforts. It does not. To the contrary, the record amply supports the District Court’s finding that there was not ‘a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General’s investigative, regulatory or enforcement efforts.’” Similarly, the IRS has been trying to get rid of Schedule B since 2016, noting in the May 28, 2020, Federal Register that it neither needs nor uses Schedule B. In fact, as it noted in an internal August 2018 briefing, the IRS simply can’t use the Schedule B to police charitable fraud in almost any modern circumstance: “IRS does not systematically use Schedule B; the lack of a Taxpayer Identification Number makes the data unsuitable for electronic matching.”

Now the Buckeye Institute, an Ohio charity, with help from the Institute for Free Speech, is suing to have the Schedule B filing requirement declared unconstitutional:

By compelling the disclosure of Buckeye’s contributors, Defendants unlawfully and substantially deprive Buckeye and its supporters of the free association and assembly rights secured by the First Amendment to the United States Constitution. Section 6033(b)(5)’s compelled disclosure regime is not substantially related to any sufficiently important government interest. No substantial relation exists between the wholesale disclosure of substantial donors through Schedule B and the government’s interest in enforcing compliance with the tax code. Moreover, the government has readily available, more narrowly tailored alternatives to upfront collection of all names and addresses of substantial contributors.”

Ken Griffin Sues IRS Over Disclosure of His Tax Returns: Ken Griffin, billionaire head of Citadel hedge fund, had his taxes disclosed in a supposedly-anonymous leak of wealthy Americans’ confidential personal tax information to tax-exempt media site ProPublica in June 2021. One of the more interesting victims of the leak, apparently Griffin had been paying a lot in taxes throughout the leaked period, as Forbes reported: “According to the data, Griffin, who is asking for a trial by jury, averaged an annual income of nearly $1.7 billion from 2013 to 2018 and paid an average effective federal income tax rate of 29.2%—making him the fourth-biggest earner and second-biggest taxpayer in the country.”

Why did ProPublica (whose mission is “To expose abuses of power and betrayals of the public trust by government, business, and other institutions”) single him out for multiple follow-up articles? “In an essay published alongside the first article in the Secret IRS Files series, ProPublica’s editor-in-chief, Stephen Engelberg, and its then-president, Dick Tofel, explained that ProPublica was publishing the tax information “quite selectively and carefully” because “we believe it serves the public interest in fundamental ways, allowing readers to see patterns that were until now hidden.” In other words, because ProPublica thought it was in the public interest to reveal what federal law clearly makes confidential. 

Now Griffin has sued the IRS for failing to do what it is legally required to do: protect his confidential information. His Complaint says that: “Despite annual audits, TIGTA—for more than a decade—continued to find systemic failures by the IRS to establish appropriate administrative, technical, and physical safeguards to adequately protect the unlawful disclosure of taxpayers’ confidential tax return information.” ¶ 9.

Griffin’s main attorney is Derek Shaffer, from Quinn Emanuel’s D.C. office, who was the prevailing attorney in AFPF/TMLC v. Bonta, 141 S. Ct. 2373 (2021), which found the California Attorney General’s office violated the First Amendment privacy and associational rights of donors; as a result of its loss in that case, California paid Shaffer’s firm $8 million in attorneys fees. Although the statutory damages for tax information leaks is only $1,000 per violation, the statute also authorizes an award of attorneys fees.

Will Justice Jackson Lead A “Third Wave of Progressive Originalism” On The Supreme Court? Prof. Lawrence Solum, of the University of Virginia Law School, has a fascinating and new analysis of current jurisprudence in the Balkinization blog (h/t Prof. Jonathan Adler), that Justice Ketanji Brown Jackson is now a thought leader among the Supreme Court’s liberals, and indeed among progressive legal thinkers in general:

A third wave of progressive originalism is now well underway.  Justice Jackson is already the de facto leader of a group of scholars, lawyers, and judges who understand the dangers that judicial supremacy and living constitutionalism pose to democracy and equality—given the reality that conservative justices will dominate the Supreme Court for at least a decade or two.  Justice Jackson’s originalism is a direct and forceful response to the conservative justices’ increasing reliance on a selective mix of history, tradition, and precedent to undermine the original meaning of the Constitution’s text, while claiming to be “originalists.”

Ironically, the fiercest critics of progressive originalism are not conservatives.  Instead, it is progressives themselves who have gone on the warpath.  … What these critics and their many supporters share is an opposition to Justice Jackson’s embrace of originalism’s progressive potential, both as a counter to conservative living constitutionalism and as the key to unlocking the emancipatory power of the Fourteenth Amendment.

The progressive originalism of the twenty-first century has deep roots, starting with the first wave of progressive originalism led by Frederick Douglass.  The rediscovery of abolitionist constitutionalists like Douglass and his allies, has highlighted an important set of ideas that anticipate today’s public meaning originalism.  Douglass’s devastating criticism of Dred Scott was simple: it is the public meaning of the constitutional text and not the racist intentions of some of its authors that must be treated as the binding source of constitutional law.  The abolitionist constitutionalists never gained the upper hand on the Supreme Court, but their constitutional vision was enshrined in the Reconstruction Amendments. …

Justice Jackson sees the obvious: progressives must oppose a conservative juristocracy.  And the most effective way to do that is to expose the gap between the outcomes that conservatives prefer and the original public meaning of the constitutional text.  Justice Jackson is in the vanguard of the third wave of progressive originalism, and she is not alone.  Progressive constitutional scholars like Akhil Amar and Jack Balkin at Yale, and progressive lawyers like Elizabeth Wydra at the Constitutional Accountability Center, have labored for decades to lay the foundations for a progressive and originalist resistance to a conservative juristocracy. …

If conservative judges are making selective use of history to make originalist arguments for conservative results, then the only way to show this is to make better originalist arguments to the contrary.  Failure to make progressive originalist arguments effectively concedes that the constitutional text supports conservative result, legitimating rather than undermining the conservative juristocracy. …

Progressives need to support Justice Ketanji Brown Jackson, not undercut her.  Their reluctance to do so may stem from the fact that good faith originalism offers neither progressives nor conservatives everything they want by way of results.  There is a price to paid for good faith originalism.  But juristocracy, whether conservative or progressive, is a profound threat to the rule of law.  Justice Jackson is right to oppose it.

Should Kagan and Sotomayor Retire Because “the Senate Is Broken”? So argues the always-quotable Ian Milhiser in Vox. “Realistically, both justices could probably look forward to a decade or more of judicial service if they desire it. But even a mighty Supreme Court justice cannot overcome the merciless math facing Democrats in a malapportioned Senate that effectively gives extra representation to Republicans in small states.”

STATES

Minnesota Law Limiting Legislators Working for Lobbying Organizations Starts Jan. 3: Minnesota Public Radio reports that the new Minnesota law, passed in 2021, could squeeze some legislators who work for organizations that lobby, even if they recuse themselves from their employers’ lobbying efforts. The new law will go into effect on January 3, 2023, but the legislature must first adopt rules before it can be enforced.

75% of Maryland Voters Choose to Rename Its Appeals Courts to Something More “Normal:” For decades, Maryland has been an outlier in having no “Supreme Court,” but only a highest court called the “Court of Appeals” (its intermediate appellate court was a “Court of Special Appeals”). At the recent November 8 election, 75% of Maryland voters voted yes to a constitutional amendment to rename the Maryland Court of Appeals to the Supreme Court of Maryland and the Maryland Court of Special Appeals to the Appellate Court of Maryland.

Goldwater Institute Sues to Block Arizona Proposition 211 Requiring Donor Disclosure: Arizona First Amendment lawsuits are interesting in part because the Arizona Constitution’s version of the First Amendment is broader in some aspects than the federal version. See, e.g., Coleman v. City of Mesa, 230 Ariz. 352, 361 ¶ 36 n.5 (2012) (Ariz. Const. Art. 2, § 6 “is in some respects more protective of free speech rights than the First Amendment”). But in last November’s elections, 72% of Arizona voters voted in favor of Proposition 211, which would require donor disclosure of “money’s original sources,” defined as those who “earned the money being spent.” 

Now the Goldwater Institute has filed suit (h/t IFS) in Arizona courts on behalf of two Arizona charities to block Prop. 211. “Under the Arizona Constitution, an Arizonan ‘may not be forced to speak a message he or she does not wish to say’”, quoting Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269, 283 ¶ 52 (2019).

Open Secrets Sums Up 2022 State Ballot Measures: In a December 9 analysis, Rayna Cohen at Open Secrets has tallied up some interesting statistics on state ballot measures:

State ballot measures attracted $945 million during the 2022 election cycle. Sixty-two measures in states across the country covered topics such as abortion, cannabis use and online sports betting. Voters approved 64.5% of those measures, and some of the ballot measures with the biggest financial backers failed.

The two most expensive ballot measures came out of California, which voted against two sports betting initiatives. Groups supporting and opposing Proposition 27 to legalize online mobile and sports betting raised over $406.9 million, making it the most expensive ballot measure campaign in the state’s history. Groups raised more than $237 million to oppose the measure, while only $169 million was raised in support.

The proposition was opposed by groups funded by California Indian tribes and tribal organizations, which were supporting Proposition 26, another ballot measure that would have legalized sports betting at American Indian gaming casinos but was ultimately unsuccessful.

Proposition 26 was the second most expensive measure, at over $163.2 million. Groups supporting the measure raised $120 million, while those opposing it raised only $42 million. The committee supporting this measure — Yes on 26, No on 27 — also opposed the failed Proposition 27.

GENERAL

Two Under-the-Radar “Pro-Democracy” Organizations Generated $48 Million Opposing Trump’s Post-Election Efforts: Politico claims it is the first to report on the activities of two similarly-named progressive organizations that spent millions to block former President Trump’s “Stop the Steal” efforts after the 2020 elections and oppose the candidacies of election deniers.

A pair of progressive organizations operating in complete secrecy spearheaded a $32 million campaign during the midterms to push back against former President Donald Trump’s “Stop the Steal” movement. The effort, first reported by POLITICO, was undertaken by two newly created groups: Pro-Democracy Center and Pro-Democracy Campaign. Those groups operated in states across the country as the election system faced unprecedented pressure from Trump and his allies, who falsely said that the 2020 election was stolen. … Altogether, the organizations funded 126 groups across 16 states, from national battleground states like Arizona and Pennsylvania to places like South Carolina and New Jersey, where most statewide races have not been particularly competitive. …

Donnelly, a longtime fixture in the good governance advocacy community, declined to reveal the funding sources behind the campaign. But the substantial budget and extensive operations of the PDC underscore the depths of progressive concern that exist over Trump-led efforts to change voter laws and election administration across the country. It represents a significant investment in state-based infrastructure during a time when progressives have feared too much attention and resources have been devoted to national infrastructure and institutions.

In addition to the $32 million PDC directly funneled, it also steered an additional $16 million directly from other funders to partner groups as well. Both numbers were provided to POLITICO by PDC. As one point of comparison: The Conservative Partnership Institute, which has served as a hub of Trump allies — including attorney Cleta Mitchell, who was on the call where Trump tried to pressure Georgia officials to overturn the 2020 election — brought in $45 million in 2021.

Will Republicans Embrace Mail-in Voting As Trump Fades? So asks the Wall Street Journal. *The issue of mail-in voting has divided Republicans in the wake of disappointing midterm elections, with most key GOP leaders urging the party to embrace the practice and former President Donald Trump continuing to warn against it. Republicans including Florida Gov. Ron DeSantis say the party has been hurt by relying more heavily on Election Day turnout while Democrats encourage supporters to vote early and by mail. Intraparty criticism intensified following Herschel Walker’s loss Tuesday in Georgia’s Senate runoff. “If we don’t bank ballots early, we’re going to keep losing,” Kellyanne Conway, an adviser to Mr. Trump, said Tuesday night on Fox News. Host Laura Ingraham shot back, “But we didn’t do it in 2020 because everyone said, ‘Don’t vote early because that’s corrupt.’”*

Elizabeth Nolan Brown Defending Algorithms As Good for Democracy: In Reason, Elizabeth Nolan Brown, Senior Editor at libertarian Reason magazine, has a significant deep dive into algorithms and all the kerfuffle over their effects (h/t IFS). Lots of history, context and, ultimately, compelling and comforting revelations that are rarely found in this noisy debate:

To some extent, the arguments about algorithms are just a new front in the war over free speech. It’s not surprising that algorithms, and the platforms they help curate, upset a lot of people. Free speech upsets people, censorship upsets people, and political arguments upset people.

But the war on algorithms is also a way of avoiding looking in the mirror. If algorithms are driving political chaos, we don’t have to look at the deeper rot in our democratic systems. If algorithms are driving hate and paranoia, we don’t have to grapple with the fact that racism, misogyny, antisemitism, and false beliefs never faded as much as we thought they had. If the algorithms are causing our troubles, we can pass laws to fix the algorithms. If algorithms are the problem, we don’t have to fix ourselves.

Blaming algorithms allows us to avoid a harder truth. It’s not some mysterious machine mischief that’s doing all of this. It’s people, in all our messy human glory and misery. Algorithms sort for engagement, which means they sort for what moves us, what motivates us to act and react, what generates interest and attention. Algorithms reflect our passions and predilections back at us.

They also save us time and frustration, making our online experiences more organized and coherent. And they expose us to information, art, and ideas we might not otherwise see, all while stopping the spread of content that almost everyone can agree is objectionable. Algorithms are tools, and on the evidence, people—and tech companies—are using them pretty well.

Did a Florida “Political Consultant” Report Planting False News Stories? Hardball public relations/lobbying/campaign dirty tricks led NPR to report on freelance TV news producer Kristen Hentschel who was planting false news stories on behalf of Matrix LLC, a “political consultant” working in southern states for companies including Florida Power & Light and sugar conglomerate Florida Crystals. The stories were apparently intended to affect both legislation and elections, and Hentschel’s calling card, literally, was as an ABC News reporter. “Interviews for this story and Matrix ledgers show Hentschel traded on her work for ABC News at least three times to trip up Florida politicians whose stances on environmental regulations cut against the interests of major Matrix clients. … According to two people at ABC News with knowledge, Hentschel was not, in fact, reporting for ABC on any of those subjects.” Her cover was broken by yet another “anonymous leak” of internal information to “Floodlight, a nonprofit newsroom that investigates the powerful interests.” “After this story was published on Wednesday, ABC cut ties with Hentschel. ‘Kristen Hentschel was a freelance daily hire who never worked for ABC News on the political stories referenced in the NPR article,’ the network said in a statement. ‘She does not currently work for ABC NEWS.’” Despite NPR’s long-standing involvement in campaign finance reporting stories, not a word in the long-form article about whether and how the “fake news” was reported to the appropriate authorities (Florida, in particular, has very strong lobbying disclosure rules).

Is a “Pro-Democracy Reporting” Backlash Coming? Somewhat related is an article from Univ. of Wisconsin-Madison journalism Professor Michael Wagner, contending that “a backlash against pro-democracy is coming.”

It is not that it should not be impermissible to take a side — it is that the taking of a side needs to be transparently and robustly hewed to the verifiable truth and that pro-democracy reporting aggressively pursues anti-democracy behaviors from all who conduct them.

Democracies depend upon providing citizens accurate information to make reasoned choices and to vote out leaders who repeatedly tell us things that are plainly not true. Without a robust defense of democracy-oriented reporting from experts and journalists alike, the recent improvements society has benefitted from in election journalism are in danger of disappearing.

It’s unclear what the terms “pro-democracy,” “democracy-oriented” or “anti-democracy” mean, besides “election denier” or perhaps “pro-Trump.” But a journalism professor touting “verifiable truth” could be a good thing, expected even, from a professional journalist … or maybe not.

MacKenzie Scott Lauded for Yet Another Unusual Philanthropic Tactic – Funneling Money to Charities in the South: Fortune notes that billionaire MacKenzie Scott “is dedicating an unusually large share of her giving to nonprofits in the South — a region that megaphilanthropy and particularly tech donors have long been criticized for ignoring. The maverick philanthropist has earmarked at least $3.1 billion for organizations in southern states since 2020 — nearly a third of the $10.6 billion in gifts disclosed on her new Yield Giving website.”

MIT Faculty Adopts A Statement On Free Speech: On December 21, the Massachusetts Institute of Technology Faculty Senate voted 98 to 52 to adopt a surprisingly-open Free Expression Statement (h/t law Prof. Eugene Volokh). The College Fix, the higher-education website run by “The Student Free Press Association … a nonprofit organization run by veteran journalists to help beginning journalists,” gives background. The Statement begins: “With a tradition of celebrating provocative thinking, controversial views, and nonconformity, MIT unequivocally endorses the principles of freedom of expression and academic freedom. Free expression is a necessary, though not sufficient, condition of a diverse and inclusive community. We cannot have a truly free community of expression if some perspectives can be heard and others cannot. Learning from a diversity of viewpoints, and from the deliberation, debate, and dissent that accompany them, are essential ingredients of academic excellence.”

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