Public Policy Advocacy Highlights for February 2023

Public Policy Advocacy Highlights for February 2023

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.


FEC Commissioners Reject OGC’s Attempt to Separate Marital Assets, Setting New Constitutional Review Standard: Cong. Lori Trahan and her husband David had signed pre-nuptial agreements defining marital property before she ran for Congress, including real property purchased during the marriage. During her 2018 congressional campaign, she loaned her campaign $300,000 from her personal funds, and $71,000 from a home equity loan obtained in 2010. The Office of Congressional Ethics investigated the use of loan proceeds and found no ethical problem. Reviewing a complaint by the Campaign Legal Center, the FEC’s OGC came to a different legal conclusion from OCE, claiming that the use of the proceeds, mixed with the personal funds, meant that the entire $371,000 in campaign loans was an illegal excess contribution by David Trahan.

In MURs 7585/7588 (Trahan), four Commissioners at the Federal Election Commission, led by Chair Dara Lindenbaum, rejected the attempt by the FEC’s Office of General Counsel to separate the marital assets of a U.S. Representative and her husband: “The federal government should pause before scrutinizing the minute financial arrangements of married couples. This is so even where one of the spouses has been elected to federal office. And in the rare circumstances where such an investigation is justified, the government should take care not to assume that assets jointly owned or controlled by a husband and wife are solely the property of one spouse.” Id., at 7.

The four commenting Commissioners, in a footnote, also noted an important constitutional analysis point:  

That interest [avoiding corruption or the appearance of corruption, the only government interest strong enough to overcome First Amendment rights] is somewhat attenuated where, as here, the financial transfers occur between spouses, and especially spouses who broadly share a joint right to each other’s funds. Even if there were a generalizable corruption interest at issue, it is not obvious that highly-invasive investigations into the intimate financial arrangements of married couples is at all proportional to the government’s interest. M.L.B. v. S.L.J., 519 U.S. 102, 117 (1996) (“Choices about marriage [and] family life” are “among [those] associational rights this Court has ranked as ‘of basic importance in our society’” “sheltered by the [Constitution] against the State’s unwarranted usurpation, disregard, or disrespect”) (quoting Boddie v. Conn., 401 U.S. 371, 376 (1971)).

MUR 7585/7588, at 3-4 n. 17.

Dueling Replies to Motions to Dismiss in D.C. Circuit May Presage a Conclusion to the Long-Running Battle Over Three Commissioners Being Sufficient to Dismiss FEC Complaints: Some recent filings in various cases being considered by the U.S. Court of Appeals for the D.C. Circuit concerning battling claims over whether it takes four or only three votes for the Federal Election Commission to dismiss complaints of violations of federal campaign finance law. For example, in CREW v. FEC, (No. 22-3281), both the agency and intervenor/appellant American Action Network have filed Replies to CREW’s Opposition to the appellants’ Motions to Dismiss.  The FEC relies on the “futility” doctrine, pointing out that three Commissioners have made plain their continuing objection to proceeding with enforcement actions against AAN under the facts in this case, precluding ever reaching a majority vote of the six Commissioners.  AAN relies on D.C. Circuit precedent declaring three Commissioners sufficient to dispose of CREW’s Complaint. Thus, the stage is set for oral argument and the appeals court’s final disposition of this case. Because there’s neither a split among circuits nor a pressing jurisprudential controversy now that the FEC has a quorum of voting Commissioners (the two most common reasons for the Supreme Court to grant review), the Supreme Court is unlikely to pick up this issue unless the D.C. Circuit goes seriously off the rails, and the appeals will likely settle this pesky and confounding controversy. Let’s hope so, anyway.

Covington Explanation of New Internet Disclaimer Rules: The FEC’s new rules on disclaimers on internet communications goes into effect March 1. Covington has a new explainer giving details.


Big Mama Rag is BACK! Chair of House Judiciary Subcommittee on Crime and Federal Government Surveillance Blasts “Intrusive” Questions on Foundation’s 1023, But Was the Service Actually Out of Line? Invoking the specter of the 2010 Lois Lerner “targeting” scandal,  House Subcommittee Chair Andy Biggs told the media site Just the News that “The queries in the IRS interrogatory [to the Adams, Baldwin and Covey Foundation] are ‘a form of government surveillance of the American people, … There is no authority for the IRS to regulate speech.” Some might view this strong statement as just overheated rhetoric, but Chairman Biggs actually has history on his side. The IRS’s position in regulating charities’ speech through applications for tax-exemption is tissue-paper thin and all that props it up is a forty-year long trail of litigation and IRS squirming under fire.

The actual documents behind the current controversy sparking Biggs’ concern don’t seem to be available, but the background seems to be something like this: ABC Foundation filed an IRS Form 1023 Application for tax-exemption on Sept. 28, 2021, the IRS didn’t respond until August 2022, and sent as its response a series of boilerplate questions similar to those in use for decades. The request for more information was dated May 23 with a response date of June 2022. The questions are all derived from the requirements for qualifying as an IRC § 501(c)(3) educational organization (which is what ABC sought) as struck down in the seminal decision of Big Mama Rag v. United States, 631 F.2d 1030 (D.C. Cir. 1980), but kind of resurrected by subsequent decisions.

Big Mama Rag centered on the definition of “educational,” as set forth in Treas. Reg. § 1.501(c)(3)-1(d)(3)(i) (1959): “An organization may be educational even though it advocates a particular position or viewpoint so long as it presents a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion. On the other hand, an organization is not educational if its principal function is the mere presentation of unsupported opinion.” Pretty much what the questions to ABC Foundation were asking.

The D.C. Circuit, however, rejected those questions in Big Mama Rag: “The definition of ‘educational’ contained in Treas. Reg. § 1.501(c)(3)-1(d)(3) lacks sufficient specificity to pass constitutional muster. Its ‘full and fair exposition’ standard, on the basis of which the denial of BMR, Inc.’s application for tax exemption was upheld by the court below, is vague both in describing who is subject to that test and in articulating its substantive requirements.” 631 F.2d at 1039.

The IRS, used to deference from reviewing courts on its tax-exemption decisions, was shocked by the decision. The Service published a very unusual discussion of the case in its internal TE/GE Continuing Professional Education training guide for 1981. “The Big Mama Rag decision will have a tremendous impact on Exempt Organizations. … The immediate problem is what standards to use in handling new ‘educational’ organizations’ applications, because the Court of Appeals does not provide guidance. The long-range problem is to develop examination guidelines and to determine whether the exemptions issued under the now invalidated regulations will be affected. At this writing [1981], these questions are unresolved, and they will probably not be resolved easily or quickly.”

Why so earthshattering? Because – “zut alors!” – the IRS will be held to First Amendment scrutiny: “The Court of Appeals virtually raised IRC 501(c)(3) exemption and IRC 170(c)(2) deductibility to the level of constitutional rights with the many safeguards that attach to such rights. The court did so in spite of Cammarano, et al., supra. This judicial tack would seem to open most Service determinations on exemption and deductibility to extensive judicial review and possibly to review by other agencies concerned with constitutional and civil rights issues. This judicial position calls into question the Service’s basic administrative role. One wonders if the court really understood the full implications of its ruling equating tax exemption with tax subsidies and such ‘subsidies’ with fundamental, constitutional rights.” (This fight over whether tax subsidies “waives” individual First Amendment rights continues to this day. See, e.g., id., pp. 22-29.)

Tellingly, the IRS CPE noted that “It is clear that the court genuinely believed that the Service discriminated against BMR because of its articles on lesbianism, and that that belief was a big factor in its decision.”  So, faced with the judicial mandate, the IRS crafted a “position-neutral” methodology for evaluating whether an organization could qualify as an educational organization or would fail the statutory prohibition on “propaganda.” The new test (ultimately promulgated in Rev. Proc. 86-43, 1986-2 C.B 729, and still in use) “focuses on the method the organization uses to advocate its position, rather than the position itself.” Under this test, the IRS will look at four “factors”, any of which may suggest that the organization may be engaged in propaganda rather than education:

  • The presentation of viewpoints unsupported by facts represents a significant portion of the organization’s communications.
  • The facts that claim to support the viewpoints appear distorted.
  • The organization’s presentations substantially use inflammatory and disparaging terms and express conclusions based more on strong emotions than on objective evaluations.
  • The approach the organization uses in presentations isn’t aimed at developing the intended audience or reader’s understanding because it doesn’t consider their background or training on the subject.

Despite sounding much like the process struck down in Big Mama Rag, the new methodology was upheld in subsequent cases, including in decisions affecting white nationalist organizations such as The Nationalist Movement v. Commissioner, 102 T.C. 558 (1994), aff’d, 37 F.3d 216 (5th Cir. 1994), cert. den., 513 U.S. 1192 (1995), and National Alliance v. United States, 710 F.2d 868 (D.C. Cir. 1983). In Nat’l Alliance, for example, the D.C. Circuit took pains to harmonize the new IRS guidelines with Big Mama Rag: “We observe that, starting from the breadth of terms in the regulation, application by IRS of the Methodology Test would move in the direction of more specifically requiring, in advocacy material, an intellectually appealing development of the views advocated. The four criteria tend toward ensuring that the educational exemption be restricted to material which substantially helps a reader or listener in a learning process. The test reduces the vagueness found by the Big Mama decision.” National Alliance, 710 F.2d at 875. But Footnote 2 in The Nationalist Movement says, in part, ““Rev.Proc. 86-43 attempts to reduce the vagueness in the application of § 1.501(c)(3)-1(d)(3). The constitutionality of this test has not been decided by any circuit. However, the D.C. Circuit discussed the test with approval in National Alliance v. United States, 710 F.2d 868 (D.C. Cir. 1983).” Nationalist Movement, 37 F.3d at 218 n. 2. The Supreme Court declined cert of Nationalist Movement in 1995.

Bottom line: with this rickety structure in place, ABC Foundation is raising an important, but unresolved issue. Unfortunately, it is doing so in an inappropriately hostile way, when all that is needed is a little history lesson. Don’t discount, however, the possibility that the highly-motivated House Judiciary leadership might fixate on this forty-year-old unresolved controversy to hold the IRS accountable under the First Amendment. There is, in fact, substantial potential for abuse in the IRS’s “position-neutral” methodology.

UPDATE: It appears that ABC Foundation has a recording of the signer of the ABC Foundation denial analysis, IRS employee, IRS Exempt Organization Specialist Sherry Wan, telling a different organization in a 2012 phone call that “You cannot force your religion or force your beliefs on somebody else,” and “You cannot use any kind of, you know, confrontation way, or to, or against other groups or devalue other groups, other people’s beliefs.” That might look less “position-neutral” than permitted under IRS procedures in place since 1983.


Court Blocks New York Law Requiring Social Media Platforms to Post Policies Regulating Speech, Holding That It Unconstitutionally Compels Speech: UCLA Law Prof. Eugene Volokh is, among other things, a well-known expert on the First Amendment and leader of the blog The Volokh Conspiracy. He and other media sites sued to block a New York “hate speech” law that would have required them not only to block “hate speech” (broadly defined), but also to post a policy explaining how they would block that speech. In Volokh v. James, Judge Andrew L. Carter, Jr., of the Southern District of New York, enjoined that law as violating the First Amendment. First quoting the U.S. Supreme Court in Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” (citations omitted)), Carter wrote:

the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal.

What Would A “Ready For Ron” Victory Mean For Tax-Exempt Organizations’ Relationships With Persons Administratively Presumed to be “Testing The Waters” For Candidacy? Ready For Ron, a registered unauthorized political committee has been fighting with the Federal Election Commission over whether and when it can provide Florida Gov. Ron DeSantis with the names and contact information of the hundreds of thousands of people who have signed its petition urging him to run for President. Advisory Opinion 2022-12 (Ready For Ron). The key question is whether DeSantis can be considered to be “testing the waters” for a run. In AO 2022-12, the FEC said that R4R cannot present the petition-signers’ information to DeSantis either when he begins to test the waters or becomes a candidate because it’s a thing of value in excess of both statutory or regulatory limits. Id., at 4. R4R itself values each signer’s information at 5 cents, which R4R admits would exceed the $2,900 statutory limit on contributions to candidates. Id., at 6. R4R alternatively denies that it would exceed the regulatory limit on contributions to persons testing the waters for a possible candidacy for a variety of reasons, asserting that the value of the names and information is being contributed by the signers, not R4R. The FEC could not form a majority of four Commissioners’ votes to decide if R4R could provide the information to DeSantis before he began testing the waters, so did not make a finding. Id., at 10.

R4R took the question to the District Court for D.C. (as permitted by statute), arguing that the testing the waters regulation, 11 C.F.R. § 100.72(a), conflicted with the statutory definition of testing the waters and the FEC lacks the authority to expand its power to limit contributions beyond the statutory definition, especially in light of the First Amendment. Reply to Opposition to Motion to Dismiss, 3-12.

Leaving aside the question of whether R4R’s position is correct, consider the effect of a District Court decision that 11 C.F.R. § 100.72(a) is valid AND extends retroactively to cover anyone who subsequently becomes a candidate. Would this retroactivity also expand the coverage of the 501(c) limits on political campaign intervention, by deeming activity before the statutory definition of candidate kicks in to be PCI? After all, that’s essentially the same question being raised repeatedly in other cases, such as Washington State’s repeated insistence that pro bono legal assistance can be considered PCI (recently asserted in Texas as well).


What Happened to Voter I.D. As a Partisan Issue? Only a few years ago, the requirement to present voter ID was a hot political and legal issue, but recently it’s been a bit more muted. Perhaps one reason is that voters generally support voter ID, even while being increasingly concerned about other, seemingly similar voting regulations. And a new report from the National Academy of Sciences, authored by Notre Dame professors Jeffrey Harden and Alejandro Campos, offers another, surprising reason: the political calculations behind the partisan positions may be wrong, and have been for ten years (long enough for campaign strategists to notice).

In the first two decades of the twenty-first century, many American state governments implemented voter identification (ID) laws for elections held in their states. These laws, which commonly mandate photo ID and/or require significant effort by voters lacking ID, sparked an ongoing national debate over the tension between election security and access in a democratic society. The laws’ proponents—primarily politicians in the Republican Party—claim that they prevent voter fraud, while Democratic opponents denounce the disproportionate burden they place on historically disadvantaged groups such as the poor and people of color. While these positions may reflect sincerely held beliefs, they also align with the political parties’ rational electoral strategies because the groups most likely to be disenfranchised by the laws tend to support Democratic candidates. Are these partisan views on the impact of voter ID correct? …

The first laws implemented produced a Democratic advantage, which weakened to near zero after 2012. We conclude that voter ID requirements motivate and mobilize supporters of both parties, ultimately mitigating their anticipated effects on election results. …

Nonetheless, this research does not imply that voter ID laws represent a benign reform. A broad majority of the American public supports them, but these laws can also alienate disadvantaged groups from politics. Thus, they are most useful to the extent that they solve a problem observed in American elections. Empirical evidence—which examines voter turnout, voter fraud, and now, election results—shows essentially no such problem. Thus, future election policy may benefit from a shift in the debate. Instead of focusing on security versus access, lawmakers should consider the threshold for a baseline level of voter responsibility while avoiding the enactment of barriers that lack empirical support.


Washington Examiner Investigates Federal Funding of “Global Disinformation Index” (aka “Disinformation Inc.”) Which Seeks to Cut Off Funding For Conservative Media and Organizations: Conservative newspaper’s deep dive into federal funding for the “Global Disinformation Index,” a British company with two U.S. 501(c)(3) related entities, actually doesn’t cover one of the more interesting aspects of this odd federally-funded structure. Trying to follow the tax filings of the two listed organizations is difficult because the groups’ filing addresses in New York and names on Guidestar don’t match their current addresses in San Antonio, Texas, from Pro Publica’s data. Their website is no help, since it doesn’t list an address.

Leaving aside the irony of a “data-driven” “transparency” organization not having current information publicly available on itself, media coverage of the GDI effort is quite interesting. Basically (although it doesn’t say this on its website or report it on its publicly-available 990s), the organization attempts to cut off funding for organizations that GDI contends publish “disinformation” by publishing a “blacklist” for advertisers to avoid, including such well-known and generally credible media organizations as Reason magazine, and the New York Post newspaper (which uncovered the Hunter Biden laptop story, suffered for the discovery, and was later vindicated by widespread acknowledgement that the story was real and a legitimate scoop). On the flip side, the “less risky” groups which have supposedly not circulated disinformation include Buzzfeed (which promoted the discredited Steele dossier) and Huffpost (which repeatedly downplayed the Hunter Biden laptop as “Russian disinformation”); the less risky media companies do include The Wall Street Journal.

It’s not a problem to be biased and hypocritical, except if you’re a 501(c)(3) apparently hewing to the Big Momma Rag definition of “educational,” which requires the presentation of factual information with sufficient information so that the reader can make up her own mind (see story above on ABC Foundation). And, probably if you’re a federal funds grantee, in the wake of the Dept. of Homeland Security’s fiasco of a Disinformation Board. In the wake of the media coverage, Microsoft, which owns digital advertising giant Xander, quickly moved to freeze its use of GDI’s blacklist and remove negative “flags” such as “reprehensible/offensive.”

Oops! Open Secrets Claim That “Business Interests” Spent $3.5 Billion on Political Contributions Was Wrong, Points Out IFS Column: When the organization Open Secrets claimed in January that “business interests” had contributed $3.5 Billion to political campaigns, they apparently forgot to mention that their definition of “business interests” didn’t just include … say, businesses, but also included employees of businesses, which is a heck of a lot more numerous than just the entities. The Institute for Free Speech’s eagle-eyed Alec Greven quickly caught the overstatement, and explained it in a fact-check column. “In fact, individual contributions account for nearly $2 billion of the $3.5 billion spent by so-called ‘business interests.’”

 Interestingly, while Open Secrets reported employees’ contributions as being from “business interests,” it made no effort to correlate the contributions of stockholders in businesses, who would appear to have at least an equivalent interest in a business which they own. Perhaps Open Secrets recognized the long-established and recently reviewed evidence that not all shareholders agree with the political machinations of the corporations they own.  

Politico Click-Bait Piece on Leonard Leo’s “Lavish Lifestyle:” As much as Politico has improved after its purchase by international media, once in a while it backslides into mere “useful tool” status, as in a recent hit piece on Leonard Leo having adopted a “lavish lifestyle” as his profile skyrocketed in the last two decades. Quoting a veritable hit parade of his opponents, reporter Heidi Przybyla offers such in-depth analysis as “The official address for The 85 Fund, which has appeared for at least ten years on paperwork registering dark-money groups associated with Leo, is Suite 268 of a building in the Georgetown neighborhood of DC. It houses a UPS store, where an employee said there are no suites, only mailbox rentals.” Many “questions” raised, little light generated.

Covington Expands Pay-to-Play Survey To Include Federal Rules: Covington has long published a list and explanation of state-level laws that govern political activities of those who contract with or are regulated by agencies and jurisdictions. Now it has expanded the 2023 updated edition to include rules governing federal contractors’ contribution and political activities. The federal section covers “the Securities & Exchange Commission (SEC Rule 206(4)-5 and SEC Rule 15Fh-6), the Municipal Securities Rulemaking Board (MSRB Rule G-37), Commodity Futures Trading Commission (CFTC Rule 23.451), and Financial Industry Regulatory Authority (FINRA Rule 2030).”

Some “E-pollbook” Software Might Mean Voting Errors Cannot Be Recovered by Post-Election Audit: Concerned about election administration and possible fraud? So far, as in Mercer County, New Jersey last year, paper backups allowed accurate recounts, but that apparently may not be true in future cases, and it is also reportedly possible that persons not physically within the counting center can alter the vote counts in some cases. Computer Science Prof. Andrew Appel from Princeton’s Center on Information Technology Policy has written widely on cybersecurity and election administration in the U.S. and globally. Appel now has a report (and even more chilling comments follow) in the blog Freedom to Tinker on unrecoverable ballot errors in Williamson County, Texas, 2020 local elections: “flawed e-pollbook software resulted in voters inadvertently voting for candidates and questions not from their own districts but from others in the same county.  These voters were deprived of the opportunity to vote for candidates they were entitled to vote for—and their votes were wrongly counted in elections that they shouldn’t have voted in.  This wasn’t the voters’ fault, but it does mean that the results in elections for local offices were affected by this screwup by Tenex Software Solutions. … in Williamson County, the mistake was unrecoverable.  Once the voters have been given the wrong ballots, then no amount of recounting can recover a fully valid election result.” Unverified comments suggested that “Eastern Europeans” in cars outside the voting site could interfere with the voting process or vote counts, and that the upcoming session of the Texas Legislature would be investigating the WillCo situation. At best, even if these reports prove incorrect, they could spawn new grounds for election denialism (publicly saying that the results were incorrect) or claims of foreign interference in U.S. elections.

Stanford Study Says Candidates’ Views on Election Denial Only Changed a Small Number of 2022 Midterm Votes, But Might Affect Future Primaries and Close General Elections: Speaking of election denialism, some Republicans, such as pollster Whit Ayres, are claiming that election denialism is a losing proposition for future campaigns. Doctoral student Janet Malzahn and Political Economics Prof. Andrew Hall wrote in the Stanford Business Review that comparing election results from the 2022 midterm voting with public election denialism indicates “that only a relatively small group of voters changed their vote in response to having an election-denying candidate on the ballot,” suggesting that the major effects were in primaries and close general elections. “We find that election-denying candidates underperformed in 2022 by a margin substantial enough to suggest that it could tip close elections in the future, including the 2024 presidential race. On the other hand, the penalty we document is also small enough to suggest that many voters were willing to continue supported Republican candidates even if they denied the results of the 2020 election. … Our study provides a helpful update to the literat[ur]e on candidate positions in this new political era by focusing not on candidates’ ideological portfolio but on their stance on one extremely salient issue—the outcome of the 2020 election. As we have shown, a small but pivotal group of American voters have meaningfully punished the candidates who have supported it.”

Meanwhile, the New York Times reports that most social media companies are cutting back efforts to regulate “disinformation” online. “Faced with economic headwinds and political and legal pressure, the social media giants have showed signs that fighting false information online is no longer as high a priority, raising fears among experts who track the issue that it will further erode trust online.” Perhaps those companies could cut costs by using the Global Disinformation Index instead (see story above)?

Covington Reports on “Tips for Responding To Corporate Political Disclosure Shareholder Proposals:”  As the number increases of shareholder proposals that corporations disclose their contributions or relationships with political or tax-exempt organizations such as associations, Covington offers some “tips” on how corporations should respond. For example: look at P. 27 of the policy issued last November by the well-known advisory firm Institutional Shareholder Services on such proposals. Both the Covington and ISS publications have information useful both for those offering and receiving such proposals.

On a broader note, a new book by UCLA Law Prof. Stephen Bainbridge (h/t Prof. Eugene Volokh) notes that corporations that adopt such shareholder proposals might be buying a different problem: “When the corporation faces a true zero-sum decision, however, one must make a choice between the competing interests of stakeholders and shareholders. In such cases, the law requires directors to prefer shareholder interests. The Profit Motive defends that claim as both a descriptive and normative matter.” In that context, where corporations that work with trade associations and lobby for their corporate interests generally reap substantial financial rewards, while disclosing political contributions often results in negative publicity for the corporation from the ideologues who disagree with their speech, the shareholder proposals to make such disclosures would seem to pose a legal conundrum for the corporation involved. 

How To Give Responsibly After Disasters: Vox updated and reprints a backgrounder for donors on when and how to give responsibly after natural disasters like the recent Turkey earthquakes. Basic messages: information on effective disaster relief is scarce; donors don’t affect current needs much, but should consider longer-range assistance where others are not already stepping in; watch out for fakes.

Changing Pattern of Billionaire Philanthropy: Vox reports on the increase of Big Philanthropy using LLCs as vehicles rather than private foundations, using Texas billionaires Laura and John Arnold (Giving Pledge signers who have already pledged or given one third of their wealth) as exemplars. “In a cultural moment of increased suspicion about philanthropy, the move from foundations to LLCs can prompt some concern — and some anger. … An LLC allows for both grants through a foundation and politics and advocacy work through a separate organization. … If you’re a billionaire with limited philanthropic ambitions — or ones that happen to fit well with what foundations make possible — you might want to dodge the added complications of an LLC, which just sounds fishier to the public than a foundation ever will. But if you want to do as much good as you can, then in many cause areas, you will find yourself wanting flexibility a foundation doesn’t offer.”

Gen Z Begins Political Support, Wants More Info, Isn’t Locked Up By the Democratic Party: The youngest voters are now Generation Z, born after 1996, and 8 million of them were eligible to vote in the 2022 midterms. NPR summarizes some findings of a report by the Walton Family Foundation, about the youngest cohort of voters. Some of the report’s results:

  • Most get their news from social media, and, possibly as a result, they have little confidence in the information they get.
  • They want more and better information, but still turn to the Internet and social media, especially YouTube, to get more.
  • Their thought leaders tend to be those active on social media, but their own opinions seem to vary from those leaders. For example, despite near constant complaints about the quality of education, more rated their education as “excellent” (37%) than “fair” or “poor” (34%). (NPR did not pick up on this point.)
  • They “voted decidedly with Democrats” last year, by a 27% margin over Republicans, but only “30% of Gen Zers surveyed said they aligned with Democrats, compared to 24% for Republicans and 28% for independents.”   

The Walton report offered suggestions for campaigns to reach these voters:

  • “Give Zoomers the information they want, in a way they understand it.”
  • “To win support, show your work,” don’t rely just on messengers and messages.
  • “Spend greater time experimenting with information dissemination.”
  • “Make education an issue requiring urgent attention.” (Note: this Report was conducted by John Della Volpe, head of polling for Harvard’s Kennedy School Institute on Politics.)

Hasen on Prof. Ellen Aprill: UCLA Law Prof. Rick Hasen pens a festschrift honoring retired law Prof. Ellen Aprill (a participant in the First Tuesday Lunch Group) to appear in the Loyola of Los Angeles Law Review, Vol. 46, No. 4, 2023. Hasen, renowned in election law, unfortunately uses the occasion to view Aprill’s work pessimistically and narrowly, describing it mostly as an explanation of how tax-exempt organization law can be viewed as “the tool to kill what remains of campaign finance law”, but also mentions her broader gifts which have been used in myriad other ways to expand tax-exempt organization law:

In this brief Essay, I explain how Professor Aprill’s deep knowledge of nonprofit and tax law and her relentless intellectual honesty leads her (and us) to an unhappy place: a world in which many of the remaining regulations of money in politics could well be struck down as unconstitutional or rendered wholly ineffective by a Supreme Court increasingly hostile to the goals of campaign finance law and extremely solicitous of religious freedom. … Too few scholars write with Professor Aprill’s clarity, attention to detail, and sense of the public good. None can match her combination of grace, intellectual curiosity, and generosity of spirit. She is, to use a technical legal term, a mensch.