Characterizations, editorial comments, abbreviations and shorthand references are solely PPA Highlights author Barnaby Zall’s, and do not necessarily 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.

Congress:

Will the New House Judiciary Investigations Subcommittee Have the Jurisdiction to Investigate IRS “Weaponization”?House Republicans have been telegraphing additional “oversight” investigations for months, but, as part of the negotiations to elect Kevin McCarthy as Speaker, the Judiciary Committee in particular has gained new scope, or has it? Republicans Outline Three Committee Investigations They Will Focus On (newsweek.com); House Republicans Plan a Committee on Censors and Snoops – WSJ; House GOP select panel will target DOJ and FBI and their ‘ongoing criminal investigations’ | CNN Politics; House Republicans propose sweeping committee to review government’s criminal investigations – ABC News. “The Committee on the Judiciary has been called the lawyer for the House of Representatives because of its jurisdiction over matters relating to the administration of justice in federal courts, administrative bodies, and law enforcement agencies.” About the Committee | House Judiciary Committee Republicans.  Yet House Judiciary Committee Chair Jim Jordan has already announced investigations that appear to go beyond just “law enforcement agencies. Rep. Jim Jordan Reveals His First Targets For His Investigation Into The Dept Of Education | House Judiciary Committee Republicans.

So what does this mean for the House Republicans’ announced intention to investigate the “weaponization” of the IRS? Clearly, the Judiciary Committee is not statutorily permitted to receive the personal tax return information allowed by IRC § 6103(f)(1) or (2) to be presented to the Ways & Means and Joint Tax Committees, but it could be authorized to do so by a specific House Resolution passed in closed session under 6103(f)(3). Interesting take from Jason Willick in Washington Post: Opinion | The House ‘weaponization’ committee could help protect democracy – The Washington Post “Without guardrails, the web-censorship arms race is likely to lead to escalation. Control of government will increasingly be used to intervene in democratic debate under the guise of expert knowledge. The House ‘weaponization’ committee might preoccupy itself with the pursuit of conspiracies, but it also has a chance to start hashing out what a treaty might look like.” 

The House Votes 221-210 to Claw Back More Than $70 Billion of New Funding for IRS: House Votes to Cut IRS Funding (January 10, 2023) H/t Katherine LaBeau. The legislation will die in the Senate over staunch opposition from Democrats, but gives the GOP an opportunity to relitigate what the party views as one of the most unpopular provisions in Democrats’ Inflation Reduction Act, which provided $80 billion in new funding to the IRS over 10 years to bolster a wide range of agency functions, including customer service, taxpayer assistance and criminal investigations. The vote is likely just the first skirmish in a battle that could well result in substantial cuts in the IRS’ $12.319 billion budget by the end of 2023.

Covington Client Alert on Implications of Pending Oversight Hearings on Chinese Communist Party: Speaking of congressional investigations, Covington’s election lawyers have issued a client alert for the new House Select Committee on China. https://www.cov.com/en/news-and-insights/insights/2023/01/preparing-for-investigations-by-the-new-house-select-committee-on-china Among other insights is special attention to educational institutions and some tax-exempt organizations: 

China’s Threats to Cybersecurity, Privacy, and Intellectual Property: Chinese infiltration into the American consumer space and access to American data has historically been a major focus for Chair Gallagher. Technology companies may be expected to provide answers about how they protect U.S.-based data and intellectual property from being accessed by the Chinese government.

China’s Influence in American Education: The Select Committee “will investigate the CCP’s attempts at infiltrating our academic institutions and the rise and proliferation of Confucius Institutes in the United States as organs of the CCP.” Universities and educational organizations should be prepared to respond to questions from the Select Committee.

Not mentioned by Covington, but almost certain to occur, is the rise of Chinese official efforts (both overt and hidden) to mobilize public opinion and advocacy organizations against the investigations. Although Russian propaganda may get the headlines, such Chinese activities have also been common in the past, including against Hong Kong democratization efforts. Can Americans Be Prosecuted for Believing the Widespread Chinese Disinformation Campaign About Coronavirus? – Vox PPLI (publicpolicylegal.com); How China Built a Twitter Propaganda Machine Then Let It Loose on Coronavirus — ProPublica

Sasse Leaves Senate for Univ. Presidency: Sen. Ben Sasse resigned from the Senate to become the President of the University of Florida. Before leaving, he penned an op-ed about the difference between “Pluralists vs. Zealots”: https://www.wsj.com/articles/americas-true-divide-pluralists-vs-zealots-power-democracy-partisanship-institutions-twitter-echo-chamber-neighbor-11672657710 

“Civic pluralists understand that ideas move the world more than power does, which is why pluralists value debate and persuasion. … The small but important role of government, for the civic pluralist, is a framework for ordered liberty. Government doesn’t give us rights, or meaning, or purpose or permission. It exists to protect us from the whims of mobs and majorities. 

“Political zealots reject this, holding that society starts and ends with power. Government in their view isn’t to protect from the powerful or the popular. More than anything else, zealots—on the right and the left—seek total victory in the public square. They believe that the center of life is government power. They preach jeremiads of victimhood and decline. On the left, they want a powerful bureaucracy. On the right, they want a strongman. But they agree on a central tenet: Americans are too weak to solve problems with persuasion. They need the state to do it.”

IRS

IRS Releases Guidance on Handling Contributions in Cryptocurrency: IRS Advises on Cryptocurrency Donations under Section 170. H/t Katherine LaBeau. On January 10, the IRS issued guidance that requires taxpayers who make charitable contributions of cryptocurrency to receive a qualified appraisal to qualify for a charitable deduction. Taxpayers may not determine the value of the donated cryptocurrency based on the value reported by a cryptocurrency exchange on which the cryptocurrency is traded. Significantly, if taxpayers fail to obtain a qualified appraisal before their taxes are due, they will not be able to deduct the contribution.

As a general rule, taxpayers are required to obtain a “qualified appraisal” when claiming a deduction for contributions of property of more than $5,000. However, a qualified appraisal is not required for donations of certain readily valued property, including cash, specific types of inventory, stocks traded on national exchanges, and other specified property. Or, a taxpayer may rely the “reasonable cause” exception – and still deduct the contribution – if they can show that they exercised ordinary business care in failing to obtain a qualified appraisal. 

Prior to the IRS’s most recent guidance, many thought the value of donated cryptocurrency could be reasonably ascertained based on the reported value on the exchange where the currency is traded and, therefore, taxpayers could rely on the reasonable cause exception. However, the IRS’s recent guidance confirms that a taxpayer must obtain a qualified appraisal to deduct donated cryptocurrency when the claimed deduction is more than $5,000. In reaching this conclusion, the IRS determined that no exception to the “qualified appraisal” requirement applies – including a “reasonable cause” exception – and, therefore, the use of a value reported on a cryptocurrency exchange does not satisfy the qualified appraisal requirement. 

IRS Releases January 2023 EO Update: Not a lot new in this Update; mostly updates to existing things, though there is a new Technical Guide on calculating self-dealing excise taxes.

CQ Research Deep Dive Into “Dark Money:” Pretty thorough for CQ, but does include some errors. E.g., in list of “A Variety of Groups Can Raise Campaign Funds”, “501(c)(3) – Charitable … nonprofit … Not required to disclose donors”. Dark Money: CQR (cqpress.com)

Soros Foundation “Network” Gave Billions For Advocacy: Remember the Marble Trust controversy? According to CNBC, George Soros-affiliated organizations gave more, including a stock contribution of $1.78 billion to a c3. Nonprofit financed by billionaire George Soros donated $140 million to political groups in 2021 (cnbc.com)

FEC

FEC Rejects Complaint That Google Suppressed Republican Emails, Finds Google Acted on Commercial Interests: From Wall Street Journal: 

The Federal Election Commission has dismissed a complaint from Republicans that Google’s Gmail app aided Democratic candidates by sending GOP fundraising emails to spam at a far higher rate than Democratic solicitations. The Republican National Committee and others contended that the alleged benefit amounted to unreported campaign contributions to Democrats. But in a letter to Google last week, the FEC said it “found no reason to believe” that Google made prohibited in-kind corporate contributions, and that any skewed results from its spam-filter algorithms were inadvertent.

The FEC action may muddy current litigation claims against Google, but appears to be consistent with recent FEC administrative rulings. Google counsels’ recent AOR efforts to educate the Commissioners about its commercial intent seem to have paid off. 

What Are the “Thorny” Coordination Issues in Prohibition on SuperPAC Involvement in Contested Primaries? Campaign Legal Center contends that recent agreement among House Republicans not to become involved in contested party primaries raises “thorny questions” and “egregious violations.” Isaac Stanley-Becker on Twitter: “Spokesmen for McCarthy and CLF tell me the Republican leader had no role in brokering the super PAC deal unveiled last night. Any involvement by McCarthy or his team would be an “egregious” violation, says @SGhoshCLC https://t.co/YrPb1c0WNp https://t.co/8rmdn43t4F” / Twitter

But wouldn’t that be a stretch of the coordination rules if the agreements were PAC to PAC or non-candidate (e.g., McCarthy in some other election district) to PAC? (See, e.g., “Run, Pat, Run” presidential campaign in 1987-88: ads urging congresswoman to run for President were placed everywhere except in her district).

And an ethics complaint was filed against House Speaker McCarthy for using House resources for political purposes. K McCarthy OCE Complaint (4854-4416-6472 (politico.com) Is there an issue if the agreement was an explicit quid pro quo – e.g., “vote for me for speaker and I’ll stay out of your primary?” (H/t Beth Kingsley) 

Respondent in CLC Complaint Hits Back: The Campaign Legal Center files quite a number of aggressive complaints that various election campaigns have violated federal campaign finance laws, and now a former congressional candidate shows the views from a different perspective. Liam Madden, who was the Republican candidate for Vermont’s congressional seat in the last election, tells Vermont media site VTDigger that: “there are some elements to this [earlier VTDigger] story that I feel haven’t been appropriately emphasized, the absence of which could give the audience a skewed interpretation of events. I would like to briefly offer these bits of context to make this story a smidge more balanced. Digger, to some extent, but much more so the folks they’ve interviewed, have given the impression that ‘Madden broke election law’ as though that was a definitive conclusion. It simply is not.” 

Madden actually raises some interesting challenges under recent caselaw: for example, he raises the issue of whether, under FEC v. Cruz for Senate, he can contribute money to his own campaign by having his son contribute $5,500 to his campaign. Madden’s real problem seems to be that he didn’t know enough about the “straw donor” rules (he apparently isn’t a lawyer or familiar with the intricacies of constitutional and election law). Madden sums up his views on being allegedly the victim of politicized and incomplete assertions in the CLC Complaint: “We have the creative energy to build a profoundly more beautiful political, economic and ecological commons, and to solve our enormous challenges with far more grace — if we don’t burn this cultural resource (our creative energy) seeking short-term returns of profit and political Pyrrhic victories.” 

FEC Will Hold Hearing on Audit Practices:

“In the course of addressing its administrative responsibilities, the Commission periodically reviews its programs to ensure that it is fulfilling its mission of enforcing and administering the Act while continuing to afford due process and efficiency to political committees. The purpose of this Notice is to reexamine the Commission’s policies and procedures regarding the auditing of political committees that do not receive public funds, and to give the regulated community and representatives of the public an opportunity to bring before the Commission comments and concerns about its audit process. The Commission will use the comments received to help determine whether internal directives or practices should be adjusted, and if so, how. The Commission is not, in this notice, seeking comment on its policies, practices, and procedures regarding audits of publicly funded committees.”

Federal Register Notice 2023-01 (fec.gov). 

Deep Dive on How “Dark Money” Networks Are Affecting RNC and Other Elections: Real Clear Politics has a relatively-balanced analysis (in the sense of “a pox on both your houses” from lots of people on various sides) with comments from Charlie Spies, Amy Kurz and others. Starts out complaining about Democratic efforts, but segues into analysis of Republican internal battles: “After a disappointing 2022 midterm showing, the tables have turned. Republicans are now grousing that they are being far-outspent and out-maneuvered by these opaque groups when it comes to get-out-the-vote efforts, an increasingly important aspect of modern campaigning since states have ushered in more early voting and flexible mail-in voting laws during and after the COVID pandemic.”

New ALI Restatement of the Law of Election Litigation: The American Law Institute has announced the third in its series of recent reports on election law: a Restatement of the Law of Election Litigation (h/t Derek Muller at ELB). “The Restatement’s guidance will provide a valuable resource for judges handling emergency election disputes.” The Reporters for the Restatement will be Prof. Lisa Manheim (Univ. of Washington Law, and a former clerk to Justice Kennedy) and Prof. Derek Muller (Univ. of Iowa Law). 

DoJ

Covington Updates Its FARA Primer: Covington released the 2023 version of its publication: “FARA: A Guide For The Perplexed.” “Like the once obscure Foreign Corrupt Practices Act, which prosecutors revived from hibernation some years ago, [the Foreign Agent Registration Act] is receiving its close-up. Prosecutors have brought more FARA prosecutions in the last several years than they had pursued in the preceding half century. In-house lawyers have scrambled to bone up on this famously vague criminal statute, at a time when the nation’s tiny bar of experienced FARA lawyers can still hold its meetings in the back of a mini-van.” (Note: it is unclear whether Rob Kelner actually holds meetings in the back of a mini-van and whose van it would be.)

DoJ Ends Investigation of Whether Brookings President Violated FARA: Add another to the growing roster of failed DoJ prosecutions and investigations of Foreign Agent Registration Act violations: retired Marine Major General John Allen, who resigned last June from heading the Brookings Institution after the FBI seized his electronic communications to investigate claims that he had lobbied on behalf of Qatar without registering. Seven months later, according to a statement from Allen’s attorney to CNN, ““We have been informed by the Department of Justice National Security Division and the U.S. Attorney’s Office for the Central District of California that the investigation of General John R. Allen (Ret.) has been closed and that no criminal charges will be brought against General Allen under the Foreign Agents Registration Act, or any other law, based on, or as a result of General Allen’s trip to Qatar in June 2017 or the government’s investigation of those events”.

Round-up of “Twitter File” Data Dumps: Fox News summarizes the (now) fifteen dumps of internal files from Twitter showing the tangled mess caused by FBI, CIA and other agency pressure on social media companies to censor and punish those who are thought to be risks to say the wrong things online. “Musk’s Twitter Files began going viral in December with each installment tackling what went on behind the scenes during the company’s most controversial actions. The Twitter Files have been reported by a rotation of independent journalists and writers, who were given unprecedented access to Twitter’s internal archives.” The dumps confirmed the existence of long-denied practices such as “shadow-banning” (Installment Two), the FBI as a “subsidiary” of Twitter and other companies (Six) or maybe a string-pulling controller (7-10), and Democrats promoting a false “Russian bots” narrative as a justification for wider censorship (14).Hopefully, with the flood of information slowing, there will be time for more level-headed and deep analysis that can balance the claims on both sides against whatever legitimate governmental interests might have supported the widespread governmental effort, and determine whether those efforts either remedied or exacerbated the claimed problems (or at least the claims that had some basis in reality).  

Courts

Supreme Court Debates Attorney-Client Privilege When Advice Is Mixed Legal and Non-Legal, As With Most Tax Issues Including Returns – Then The Court DIGs the Case, Leaving Tax Lawyers and Others Hanging: Tax-exempt organizations often seek legal advice about tax questions; indeed, tax-exempt practice is the clash between the First and Sixteenth Amendments, that is, between government power (to tax) and individuals’ power to block government. Tax-exempt lawyers often work with accountants and other professionals to prepare client returns and answer client questions. Attorneys believe that their advice is protected by the attorney-client privilege because they are lawyers; in practice, particularly tax-exempt practice, that isn’t necessarily true, simply because of the nature of tax-exempt practice. One traditional test is whether the client’s “primary” purpose in seeking advice was legal or non-legal, but the Circuits are split on whether that is the only test or whether a “significant purpose” is enough in cases where there is more than one purpose and they cannot be untangled. No. 21-1397, In re Grand Jury, asks the Court to decide that question.  https://www.supremecourt.gov/DocketPDF/21/21-1397/221600/20220421123354763_20220421-123022-95756360-00003407.pdf. 

The American College of Tax Counsel filed an amicus brief urging the Court to adopt the D.C. Circuit’s standard of a “significant purpose” from then-Judge Kavanaugh’s opinion in In re Kellogg Brown & Root,  756 F.3d 754, 757, 760 (D.C. Cir. 2014), rather than the Ninth Circuit’s “primary purpose” decision in In re Grand Jury. Microsoft Word – ACTC Amicus Brief(1534157237.10).doc (supremecourt.gov) As ACTC pointed out, sometimes lower courts have treated: 

”a lawyer’s assistance in preparing tax returns as effectively “non-legal.” See, e.g., United States v. Frederick, 182 F.3d 496, 501 (7th Cir. 1999); United States v. Davis, 636 F.2d 1028, 1043 & n.18 (5th Cir. Unit A Feb. 1981); United States v. Cote, 456 F.2d 142, 144-45 (8th Cir. 1972). Notwithstanding that tax-return preparation “requires some knowledge of the law, and the manner in which a tax return is prepared can be viewed as an implicit interpretation of that law,” courts have sometimes concluded that “the preparation of a tax return should not be viewed as legal advice.” In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th Cir. 1987). To support that conclusion, such courts have reasoned that accountants and other non-lawyers are permitted to assist in return preparation and/or that the contents of the return are disclosed to the government.”

During oral argument on Jan 9, the Justices discussed many elements of this circuit split, including the tax practice conundrum. As NYU Law Prof Stephen Gillers reports from SCotUSBlog, Justices debate test for attorney-client privilege when lawyer’s advice has multiple purposes – SCOTUSblog

Chief Justice John Roberts asked about an accountant who completes a complicated tax form. His work would not be privileged. But then the form is shown to a lawyer who identifies three items that are “kind of iffy” and bills $200,000. Would it all then be privileged? “To me,” Levin replied, “that’s … clearly privileged,” which prompted Justice Clarence Thomas to ask: “Is there any non-trivial role that a lawyer plays in the example the chief gave that doesn’t meet your test?” Only if the lawyer’s task “would be mechanical tax prep,” Levin replied.

Echoing Thomas’s question, Justice Ketanji Brown Jackson described a meeting that everyone agrees is over “a business decision … but the lawyer [in the room] adds a point. And you say, as long as it’s a legitimate point, that is good enough to require that the entire thing be privileged. … Why shouldn’t I worry that using your test now, we are going from one extreme to the other?” Levin replied “I don’t think that’s going to happen” and noted that it had not happened in the case now before the court, leading Jackson to point out that the case now before the court arose under the rule that Levin was asking the court to displace. …*

In its brief and oral argument, the government predicted that Levin’s test would make it possible for clients to privilege vast amounts of information by adding lawyers to a meeting or an email chain. All that would be required is the client’s good-faith claim that its purpose was at least in part legal advice. It would be easy to satisfy that requirement. In fact, no competent lawyer would fail to suggest it because there are no risks in doing so.

AND THEN, two weeks after oral arguments, the Court, without comment, DIG’d the case (dismissed the Petition as “improvidently granted,” ending the case without resolving the Question Presented). DIGs are rare, and leave lawyers hanging without a resolution other than the lower court decisions. So how are we to figure out this particular DIG? Fortunately, law Prof.  Steven Gillers has a full discussion of this DIG (unfortunately without discussing the tax lawyer aspect) in SCOTUSblog: 

The absence of the kind of disagreements we have become accustomed to see from the justices leaves one to wonder why the court did not simply write an opinion affirming the 9th Circuit [that is, the “primary purpose” test for seeking the lawyer’s advice rather than then-Judge Kavanaugh’s “significant purpose” test from the D.C. Circuit]. This is where the decision dismissing the appeal may carry future implications. The easy explanation is that the record, much of it shrouded in grand-jury secrecy, was not the right vehicle to permit the court to address the weighty question presented, whatever the answer. That is, there were not enough public-record facts to avoid an abstract treatment of the question. The more abstract, the less helpful to trial judges.

But there is another explanation. It is that a majority of the court wants to save the issue for a case whose public facts permit a serious evaluation of a question whose answer can expand secrecy and greatly affect the administration of justice. In other words, don’t read anything about the justices’ views into the dismissal. After all, they took the case in the first place, which signals an interest in the subject. They may simply have misread the case as cert-worthy.

A reversal could have led to denying the government documents relevant to its investigation of a grand-jury target even though those documents would not have been privileged but for the fact that the target’s consultation with counsel included incidental legal advice. What the dismissal tells us is that the court was not prepared to say, at this point and on this record, whether that would have been a just result in light of “reason and experience,” which is the standard in Federal Rule of Evidence 501 for defining privileges.

District Judge, Without Citing AFPF/TMLC v. Bonta, Rejects Compelled Speech Claim After California Attorney General Again Exposes Private Information: The Supreme Court in AFPF/TMLC v. Bonta, 141 S. Ct. 2373 (2021), found unconstitutional the California Attorney General’s “dragnet” program to gather lists of donors on IRS Form 990 Schedule B in part because the Schedule B disclosure requirement is compelled speech without a strong enough governmental interest or narrow enough tailoring of the remedy to outweigh the undoubted chill on freedom of association from the disclosure of confidential donor information. 141 S.Ct. at 2384. Injury from compelled disclosure of personal information is presumed, and no showing of substantial constitutional burden is required. 141 S.Ct. at 2388 (“The disclosure requirement ‘creates an unnecessary risk of chilling’ in violation of the First Amendment, Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 968 (1984), indiscriminately sweeping up the information.”), 2395 (dissent: “Today, the Court abandons the requirement that plaintiffs demonstrate that they are chilled, much less that they are reasonably chilled.”). 

Now, in Doe v. Bonta,  U. S. Judge Larry Alan Burns of the Southern District of California has dismissed a complaint by gun owners that a new law requiring gun owners to register and disclose sensitive personal information, including drivers license numbers and possibly Social Security Numbers as well as addresses and other information to the California Attorney General’s Office, which then discloses the information to “bona fide research institutions for the ostensible purposes of preventing gun violence, shooting accidents and suicide.” Slip op., 4-5. Institutions can be certified as bona fide by the U.S. Department of Education or “The Counsel [sic] for Higher Education Accreditation for the study of the prevention of violence.” The new law went into effect less than three months after the Supreme Court handed down AFPF.  As in AFPF, the individual plaintiffs had their sensitive personal information inappropriately disclosed on the Internet by the California Attorney General’s Office, along with 200,000 other Californians, though only for two days; none of the information was disclosed by the only two “bona fide”  research institutions which have been certified so far to receive the personal information (research groups at U.C. Davis and Stanford). Slip op., 8-9. 

Judge Burns’ opinion did not mention AFPF or any other similar recent Supreme Court First Amendment decision, but did say that “considering the categorical prohibition on publicly disseminating any personal identifying information that the DOJ has imposed on the research organizations, the enhanced risks Plaintiffs fear are no more likely than the risks posed by many other California laws that compel citizens to furnish publicly available personal information.” Slip op., at 16. “Considering that both research organizations follow DOJ and FBI computer security and protection protocols, the speculative possibility of a data breach occurring at UC Davis or Stanford is no more likely than one occurring at the DOJ, where the data originates.” Slip op., at 19.

This was the same argument that the Supreme Court rejected in AFPF. “While assurances of confidentiality may reduce the burden of disclosure to the State, they do not eliminate it. … Here the State’s assurances of confidentiality are not worth much.” 141 S.Ct. at 2388, n. *. “Such risks are heightened in the 21st century and seem to grow with each passing year, as ‘anyone with access to a computer [can] compile a wealth of information about’ anyone else, including such sensitive details as a person’s home address”, id. (cleaned up), as happened here.

There are undoubtedly significant differences between the factual situations in the two California Attorney General’s leaks, but the District Court’s failure to recognize AFPF undercuts its conclusions. Governments cannot do indirectly, by outsourcing research to “bona fide research institutions,” what they could not do directly, including imposing a “dragnet” on hundreds of thousands of citizens who have done no wrong. A government that has already failed to protect sensitive data cannot simply rest on an assertion that it and its transferees have safeguards. 

District Court Says First Amendment Does Not Protect False Statements About Where and When to Vote Intended to Deceive Prospective Voters: As UCLA Law prof. Rick Hasen writes in his book Cheap Speech: “it does not violate the First Amendment to make it a crime to lie about when, where, or how people vote.” Does that include telling voters they could vote by text or hashtag? In United States v. Mackey (h/t Law Prof. Eugene Volokh), Nicholas Giraufis, District Judge in the Eastern District of New York, said it does in this particular case, involving a conspiracy with knowledge of the falsity of its factual statements intending to mislead prospective voters, but not necessarily in other situations.

The 56-page opinion reviewed many conditions, considerations and theories before coming to its conclusion, but ultimately relied on exacting scrutiny review (thus providing some First Amendment protection to text-based lies, but not as much as strict scrutiny would have provided to a content-based distinction) and factual determinations. Slip op., 41-53. “To the extent that the conduct allegedly used to affect a conspired-about injury does implicate the First Amendment, the appropriate analysis is one of how the First Amendment interacts with verifiably factually false utterances made to ‘gain a material advantage’ in the context of election procedures. United States v. Alvarez, 567 U.S. 709, 723 (2012).” Giraufis pegged his analysis to former Justice Breyer’s concurrence in Alvarez, the “false valor” case. E.g., “this court will follow Justice Breyer’s lead on the appropriate mode of analysis for false speech that is entitled to less than complete First Amendment protection and apply intermediate scrutiny. Alvarez, 567 U.S. at 31-32 (Breyer, J., concurring in the judgment).” Slip op., 50.  

Law Review Article on Reining In “Shadow Docket” at the Supreme Court – Avoid Prior Pitfalls: For forty years, constitutional challenges to federal statutes had to be brought in D.C. (with the tradeoff being expedited consideration before the Supreme Court) before the rules were changed in 1976 after complaints about imposing more mandatory appeals on the Court. With the increase in “shadow docket” appeals (which are emergency consideration of mainly injunction appeals raised by government officials, resolved by summary action without regular briefings), some commentators want to require that, to be considered for expedited “shadow docket” appeals, cases would again have to be brought special three-District judge panels, “perhaps”  in D.C. Now law Prof. Michael Solimine from Univ. of Cincinnati has critiqued these calls for “old school” challenge restrictions, concluding: “the suggested reform could ameliorate some of the reforms of the shadow docket, but should be undertaken with an appreciation of the decidedly mixed past experience with similar institutional arrangements [pre-1976].”

Breaking Down the Subcategories of the Freedom of Association and How They Break Down in Practice: Freedom of association scholars are odd ducks. Part of the reason for that is the Supreme Court’s wandering explications of that freedom, a phrase not found in the First Amendment itself, but recognized for millennia as necessary infrastructure for enumerated rights. As Alexis de Tocqueville, one of the earliest chroniclers of American democracy, wrote in the 1830’s in his book Democracy in America: “In no country in the world has the principle of association been more successfully used or applied to a greater multitude of objects than in America.” Those of us who practice in public policy advocacy are quite familiar with NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958), a foundational reference in most litigation in this area: “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.”

            Now Duke Law Prof. John Inazu has posted a succinct review of recent law on the right of association in the blog Some Assembly Required (h/t IFS): 

the Supreme Court first recognized this right in its 1958 decision, NAACP v. Alabama. In doing so, the Court invoked unenumerated rights in its language and reasoning—an approach that it adopted a few years later in announcing a right to privacy in Griswold v. Connecticut (the decision that laid the groundwork for Roe v. Wade). Twenty-six years after NAACP v. Alabama, the Court split the right of association into different subsets in Roberts v. United States Jaycees: intimate association, expressive association, and (by implication) associations that were neither intimate nor expressive. In other words, intimate and expressive association are derivative rights of a right of association that is itself derivative of the right of assembly: they are made-up rights twice over. And they are largely untethered from history, theory, or doctrine.

Inazu uses this lead-in (and a prior column on “intimate association and the confusing and artificial lines that it has created around protections for groups that foster our sense of belonging and identity formation”) to make a simple point: the Court itself has created confusion over the right of association. But that’s not particularly novel. It might have been more interesting to follow his “made-up rights .. largely untethered from history, theory, or doctrine” to analyze what Dobbs and other recent Supreme Court doctrines might make of opinions that rely on THIS unenumerated right. Especially in light of recent donor protection cases such as Americans for Prosperity Foundation v. Bonta and other cases that rely fundamentally on the right of associational privacy, such as NAACP v. Alabama.  

D.C.

Do You Still Need An IRS Determination Letter to Get A DC Franchise Tax Exemption Certificate? Anecdotal evidence suggests that, in January, a 501(c)(4) client received their DC franchise tax exemption certificate using the Form 8976 on the FR-164 application in lieu of an IRS determination letter. This could be an isolated incident, but may indicate how DLCP will handle 501(c)(4) exemption applications.

States

New York Ethics and Lobbying Commission Launches New Online Ethics Training … And Requires More Lobbyists to Train: Wiley has a nice, succinct summary of the new online ethics training program created by the New York Commission on Ethics and Lobbying in Government (Q: can you “lobby” outside of govt? I guess: “Coach, put me in!” might fit.) Where before only “individual” lobbyists had to be trained in ethics, now others must, including the “Chief Administrative Officer” of an organization which is either a lobbyist or a lobbyist’s client. In effect as of January 18, 2023, and already-registered lobbyists must complete the training by March 18, 2023 and newly-registered lobbyists within sixty days of registering. 

General

New Index of Corporate “Wokeness Risk” Ranks 1,000 Corporations on How Likely They Are to Cancel Contracts or Deny Services Based on Views or Beliefs: The 1792 Exchange describes itself as a 501(c)(3) charity “whose mission is to develop policy and resources to protect and equip non-profits, small businesses and philanthropy from “woke capitalism,” to educate Congress and stakeholder organizations about the dangers of ESG (environmental, social, and governance) policies, and to help steer public companies in the United States back to neutral on ideological issues”. The name refers to the year the American stock exchange was founded “to reestablish trust and free exchange in a volatile marketplace.” Now the 1792 Exchange has released a study of what one might consider its likely targets, meaning corporations with good, neutral or unfavorable records on wokeness issues: “1792 Exchange has assessed 1,000+ companies’ policies, practices, and other relevant criteria to determine the likelihood a company will cancel a contract or client, or boycott, divest, or deny services based on views or beliefs.” Each report appears to be about two pages per company, covering the organization’s analysis of six factors. For an example of reports on Amazon (high risk), Twitter (medium risk) and Meta/Facebook (high risk), see this search: https://1792exchange.com/pdf/?companies=561%2C2067%2C672

Controversial New Study Finds Digital Advertising Has “Modest” Effect, Same As What Others Have Found For Radio/TV Ads: Nature Human Behavior publishes big new study by academics (Yale, MIT, NYU) and New York (mostly) consultants that finds: 

We present the results of a large, US$8.9 million campaign-wide field experiment, conducted among 2 million moderate- and low-information persuadable voters in five battleground states during the 2020 US presidential election. Treatment group participants were exposed to an 8-month-long advertising programme delivered via social media, designed to persuade people to vote against Donald Trump and for Joe Biden. We found no evidence that the programme increased or decreased turnout on average. We found evidence of [small] differential turnout effects by modelled level of Trump support: the campaign increased voting among Biden leaners … and decreased voting among Trump leaners … An important but exploratory finding is that the strongest differential effects appear in early voting data, which may inform future work on early campaigning in a post-COVID electoral environment. Our results indicate that differential mobilization effects of even large digital advertising campaigns in presidential elections are likely to be modest. 

Not said: what usually works these days is door-knocks and peer2peer contacts; ads of various types, not so much. As Politico just reported: 

Not said: what usually works these days is door-knocks and peer2peer contacts; ads of various types, not so much. As Politico just reported: 

The rate of return on individual appeals is falling compared to a few years ago, as candidates and outside groups find themselves targeting the same pool of donors. And congressional campaigns spent more on fundraising as a share of their total spending in 2022 than in the previous election cycle, according to a POLITICO analysis of FEC records. Doubling down on mass emails and texts is still a way to raise significant cash, and federal candidates and committees raised a combined $3.3 billion on ActBlue and WinRed, the parties’ primary online fundraising platforms, during the 2022 cycle. But people who work in the field are growing concerned that fundraising appeals are crowding out newsletters, volunteer efforts and other forms of communication amid the insatiable and never-ending hunt for cash.

Did the “Bloody 8” Indiana Congressional Election in 1984 Really Cause the Current Political Dysfunction?  Politico deep dive about how the Dems “won” the 1984 election in Indiana’s 8th Cong. District, but ultimately lost the district for later elections. The ‘Stolen’ Election That Poisoned American Politics. It Happened in 1984. – POLITICO  Though well-written and persuasive, the article downplayed the many similar situations throughout history; e.g., only mentioning once the 1960 Kennedy/Nixon election (cue stories about West Virginia and Texas) even though that arguably created the Goldwater era that boosted Ronald Reagan and a generation of conservative Republicans. 

In wake of Hamline Univ. Professor Firing, Muslim Public Affairs Council Points Out That Assuming All Muslims Reject Depictions of Muhammad Is Incorrect and May Perpetuate Harmful Stereotypes: “It is with great concern that the Muslim Public Affairs Council (MPAC) views the firing of an art professor, Erika López Prater, from Hamline University on the grounds of showing a fourteenth-century painting depicting the Prophet Muḥammad. … As a Muslim organization, we recognize the validity and ubiquity of an Islamic viewpoint that discourages or forbids any depictions of the Prophet, especially if done in a distasteful or disrespectful manner. However, we also recognize the historical reality that other viewpoints have existed and that there have been some Muslims, including and especially Shīʿī Muslims,  who have felt no qualms in pictorially representing the Prophet (although often veiling his face out of respect). All this is a testament to the great internal diversity within the Islamic tradition, which should be celebrated.” Statement of Support for Art Professor Fired from Hamline University – Muslim Public Affairs Council (mpac.org) (h/t Law prof. Eugene Volokh)

More Information Supports Theory That Reliance on Small Donors Fuels Extremism: Law Prof. Rick Pildes shares some of his posts arguing that theory while highlighting Wall Street Journal article on why big donors can’t reel in extremists who have sufficient small donor bases. “Why Big-Money Donors Can’t Reel In GOP Rebels” – Election Law Blog; Why Big-Money Donors Can’t Reel In GOP Rebels – WSJ

Will Melinda French Gates Go Her Own Way? Continuing recent highlights of billionaire female philanthropists, the Wall Street Journal highlights the post-divorce activities of Melinda Gates, which might cause significant changes in the Gates Foundation’s activities. Melinda French Gates Adjusts to a New, Solo Role – WSJ

Think Facial Recognition Issues Won’t Affect You? Don’t Go To Madison Square Garden If Your Firm Is Suing Them:  Techie media coverage in Ars Technica includes this warning about what Steptoe’s tech expert Stewart Baker called “the dumbest corporate policy of the year,”: “Madison Square Garden Entertainment has begun using facial recognition technology to identify any visitor to any of its venues—including Radio City Music Hall—who is involved with any law firm that is actively involved in litigation against MSG Entertainment.” MSG defends using facial recognition to kick lawyer out of Rockettes show | Ars Technica; MSG’s Facial Recognition at Radio City Gets Girl Scout Mom Kicked Out – NBC New York; https://nypost.com/2023/01/13/third-nyc-lawyer-booted-from-msg-by-james-dolans-facial-recognition-tech/

And now Rolling Stone reports (h/t IFS) several New York politicians, including House Judiciary Ranking Member Jerry Nadler, protested outside MSG and sent a letter decrying the use of facial recognition for “legal enemies.” 

William Consovoy Dies From Brain Cancer at 48: NYT (h/t Rick Hasen).”William Consovoy, a rising star within the conservative legal firmament who made his name arguing landmark cases on election law and affirmative action, often before the Supreme Court, and who represented President Donald J. Trump in his effort to keep his tax returns private, died on Monday at his home in Falls Church, Va.” 

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