Note: the painting above is of the statue Spirit of Justice, which stands in the Great Hall of the U.S. Department of Justice.

THE INDICTMENT OF A FORMER PRESIDENT:

The Trump Indictment For January 6-Related Activities and Conspiracies is Filed; Implications for the First Amendment: Copy of the 45-page J6 indictment is available here. Six co-conspirators, who seem to be lawyers and others, are noted, but not charged. Nothing really new that hasn’t been in the media for some time. Washington Post coverage. Law Prof. Rick Hasen writes in Slate:

It is perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone.

Professor Rick Hasen, Slate, August 1, 2023

The First Amendment will be an issue in this case, as noted in Paragraph 3 of the Indictment: “the Defendant has a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election that he had won.” Law Prof. Ilya Somin writes in Reason: “It is important to recognize that Trump isn’t being charged simply because he wrongly claimed he won the election. In and of itself, that is no crime. Rather, he went far beyond that and organized a wide-ranging conspiracy to overturn the result using fraud and deception, and by attempting to enlist state and federal officials to assist him. The indictment goes into the means he and his co-conspirators used, in great detail.”

Want the Trump lawyers first public response? Watch this clip on CNN, helpfully republished by RealClearPolitics. It rests on the First Amendment: “”Political speech, under the First Amendment, has an almost absolute protection. Nobody gets to judge, whether it’s true or not, except the American people. And we do that in an election. We do that in an election. We do that in the case of a President, by impeachment. But we don’t indict people for speech,” said Trump lawyer John Lauro.  Alleged co-conspirator Rudy Guiliani was irate in interviews, trying to claim a First Amendment defense.

This J6 Indictment, If Successfully Prosecuted, May Not Bar Trump’s Candidacy or New Federal Office: Law Prof. Josh Blackman writes in Reason that it is important to note what the J6 indictment did NOT include:

The most significant omission was that Trump was not indicted for insurrection, 18 U.S.C. § 2383. This decision was not particularly surprising, since none of the January 6 defendants have been charged with insurrection. Stuart Rhodes and the Proud Boys were convicted of seditious conspiracy. Federal prosecutions for insurrection are extremely rare, and there were many open questions about how to obtain a conviction. The decision not to seek an indictment for insurrection has several immediate consequences. First, the punishment for violating Section 2383 includes being “incapable of holding any office under the United States.” … Now that Smith has not indicted Trump for violating this statute, we will not need to decide the scope of Section 2383.

Prof. Josh Blackman, Reason, Aug. 1, 2023

Various tax-exempt organizations have been preparing actively to file court challenges to Trump candidacies based on what they claim are likely insurrection convictions. For example, even before the indictment was released, CREW has issued an 88-page report calling for Trump’s “disqualification” from the ballot. Free Speech for People sent letters to nine States’ officials urging them to “bar former President Donald Trump from the ballot.”

The obvious problem with that approach is that it assumes that, absent Section 2383 or some other statutory provision, those State officials have standing under federal law to file those challenges; FSFP contends they do because they aren’t barred by the Constitution: “nothing in the text, original public meaning, or the Reconstruction-era history of Section 3’s implementation suggests that states need authorization from Congress to implement this part of the Constitution.” While creative, saying that there’s nothing in the Constitution requiring Congressional authority to sue is not really a useful answer for standing analysis, which is always a threshold question in any federal litigation. Standing stems from the Constitution’s requirement that federal courts must handle only concrete and remediable “cases and controversies” and not hypothetical questions, and, greatly simplified, demonstrating standing requires that the challenger show a concrete and immediate harm that can be remedied by the action proposed, and that is not shared by numerous others. Standing can be challenged at any point in litigation, and courts can raise a standing question sua sponte even if the parties do not.  

None of these efforts seem to grapple with the Supreme Court’s decision in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995)(States cannot impose new qualifications on federal candidates because it would disrupt national uniformity of representation), or the many “natural-born” challenges to Presidential candidates Barack Obama and John McCain. See, e.g., Law Prof. Derek Muller’s 2015 Indiana Law Journal article on Federal Electoral Qualifications, summarizing cases. Blocking Trump from the ballot may be a rough road to follow, and will certainly not be done quickly. Stay tuned.

GOVERNMENT CENSORSHIP OF ALLEGED “DISINFORMATION:”

Appeals Court Stays Missouri v. Biden Injunction Until Panel Can Review DoJ Appeal Motion; Hearing on August 10:

The historic case of State of Missouri v. Joseph Biden, No. 3:22-cv-01213-TAD-KDM, July 4, 2023, W.D.La., rolls forward, as Judge Terry Doughty rejected the Defendants’ Motion to Stay the Injunction in a 13-page July 10 Memorandum Opinion, and then a panel of the U.S. Court of Appeals for the Fifth Circuit stayed the injunction temporarily pending an Aug. 10 hearing by a different 5^th Circuit panel.

In his July 10 Mem. Op., Judge Doughty said: “As discussed in detail in the Memorandum Ruling, all of the Defendants likely ‘significantly encouraged’ and/or ‘jointly participated’ with the social media companies to engage in viewpoint-based suppression of protected free speech. Additionally, the White House Defendants and the Surgeon General Defendants were found to have likely engaged in coercion of social-media companies.” Id., at 3. The Mem. Op. included an additional four pages of review of “a few examples of actions taken by Defendants that demonstrate they are unlikely to succeed on the merits.” Id., at 3-7. The Mem. Op. notes that “The Defendants are asking the Court to grant them relief to a Preliminary Injunction that only bars illegal conduct. In other words, the only effect of staying the Preliminary Injunction would be to free Defendants to urge, encourage, pressure, or induce the removal, deletion, suppression, or reduction of content containing protected free speech on social-media platforms.” Id., at 9.

The Mem. Op. also addressed the government speech question directly: “The portion of the Memorandum Ruling addressing Defendants’ government speech argument clearly notes that the government speech was not a First Amendment violation. Rather, it was the use of government agencies and employees to coerce and/or significantly encourage social-media platforms to suppress free speech on their platforms. Therefore, the government speech exception in the Preliminary Injunction is not ambiguous or vague.” Id., at 11. 

Stanford Law Prof. Michael McConnell, who co-chairs Meta’s Advisory Group on disinformation, wrote in the Washington Post that the answer is really transparency about the contacts between government and private social media companies, part of a charm offensive by Meta advisors to promote their proposed resolution:

The political world responded in its usual bipolar way: one side cheering the court for shutting down what the court called an “Orwellian ‘Ministry of Truth,’” and the other side warning of the waves of disinformation that will spew out of social media if the government does not work with social media companies to identify and suppress what it regards as “misinformation” and “disinformation.” …

The trouble is that the line between lawful government suasion and unlawful government coercion is paper-thin. In a world where government agencies wield significant discretionary regulatory authority, media companies might be fearful of government disfavor if they do not comply with government requests, even absent direct threats. Conversely, it seems likely that, in many cases, the companies were happy to cooperate, sharing the underlying values and goals of the administration in power. Company executives are likely to testify that they acted in accord with their own judgment — making the case for government coercion difficult to prove. …

Still, the district court’s summary of the evidence and allegations in the case performed a public service. Most of the government actions reported in the decision were performed in secret, and became public only as a result of discovery in the case. Few Americans could have known just how frequent and extensive were the government’s efforts to influence what could be said over social media. …

Regardless of how the judge’s order fares on appeal, a practical solution exists that might defuse the matter: Social media platforms should make government takedown requests public.

Meanwhile, critics of the injunction told The Washington Post that the injunction will disrupt governmental and private efforts to block foreign interference and other “disinformation” about the 2024 election. Law Professors Leah Litman and Larry Tribe wrote in Just Security: “Invoking the First Amendment, a single district court judge effectively issued a prior restraint on large swaths of speech, cutting short an essential dialogue between the government and social media companies about online speech and potentially lethal misinformation. Compounding that error, the district court crafted its injunction to apply to myriad high-ranking officials in the Biden administration, raising grave separation of powers concerns.”

Before the second Fifth Circuit panel considering the application for an Emergency Stay, the Department of Justice filed an Emergency Motion for a Stay:

One of the central prerogatives of the President and Executive Branch officials is to speak to members of the American public—including American companies— about how they can help mitigate threats to the Nation. … While the government may not coerce private parties to act on its behalf to achieve indirectly what it could not do directly, courts have set a high threshold for finding such coercion to give the government sufficient latitude to “advocate and defend its own policies.”  Board of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000).

Here, however, the district court issued a universal injunction with sweeping language that could be read to prohibit (among other things) virtually any government communication directed at social-media platforms regarding content moderation.  The court’s belief that the injunction forbids only unconstitutional conduct, while protecting the government’s lawful prerogatives, rested on a fundamentally erroneous conception of the First Amendment, and the court’s effort to tailor the injunction through a series of carveouts cured neither the injunction’s overbreadth nor its vagueness.

Id., at 4-5.

The Plaintiffs’ Opposition to the Motion to Stay responded:

In 82 pages of detailed factual findings—which Defendants-Appellants hardly dispute—the district court found that federal officials have covertly injected themselves into the content-moderation decisions of all major social-media platforms, through a years-long campaign of threats, “unrelenting pressure,” collusion, and deceit.  …

This campaign targets specific speakers—especially influential critics of the Administration’s policies and those who organize political opposition to them, … It also targets specific viewpoints on hotly disputed issues … This federal censorship fundamentally distorts online discourse in America by silencing influential speakers and rendering entire viewpoints—specifically, those disfavored by federal officials—unspeakable on social media.  In undisputed findings, the district court found, again and again, that federal action causes the censorship of these speakers and viewpoints—i.e., absent federal action, the platforms would not have censored them. …

Defendants … argue that the injunction will interfere with legitimate forms of government speech.  But, in the district court, they spent months attempting to identify such concerns and submitted five declarations detailing such concerns from senior federal officials.  The district court carefully addressed these concerns by providing eight specific, comprehensive exclusions to the injunction to allow full latitude for legitimate government speech.  Now, instead of relying on those declarations, they raise a tiny handful of new, speculative hypotheticals, none of which poses a legitimate problem of application. In any balance, the government-induced silencing of millions of American voices on social media overwhelms this tiny handful of chimerical concerns about the Government’s own speech.

Id., at 7-9.

The Department of Justice kept up the flood of paper (already thousands of pages long) with a Reply to the Plaintiffs’ Opposition which argued a lack of standing to maintain the case: “Like the district court, plaintiffs err by confusing persuasion with coercion and making factual assertions that are unmoored from the record. … The problem with terms like ‘permissible public government speech’ is not that dictionaries fail to define those words; it is that a government official would have no clue what speech qualifies as ‘permissible.’” Id., at 3-4.

Then, the DoJ filed a 65-page Opening Brief before the second panel, relying on a few pre-2023 citations to the dangers of misinformation in social media, repeating in more detail what they said in their motion: “One of the central obligations of government leaders, at any level, is to protect the public against innumerable threats: natural disasters, outbreaks of disease, crime, economic turmoil, and much more.  Governments have concrete tools to address some of these challenges.  But often, one of the government’s key roles is simply to provide the public with accurate and timely information, to dispel false rumors, and to explain what actions citizens and businesses can and should take to advance the public good.”

The two sides both raise the same issue the U.S. Supreme Court addressed in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963): was the government official attempting to “convince” or “coerce” the private speaker? Plaintiffs point to the huge number of examples in the District Court’s record to the officials’ continuing pressure and subtle or overt threats and denunciations (in other words, what is now being called “jawboning” the private officials); DoJ looks only at whether an actual express threat was offered. Each claims that its approach satisfies Bantam Books’s holistic approach of considering the context of the officials’ speech. This is the standard fight in such cases, and there are an increasing number of such cases in recent months.  

The deadline for filing amicus briefs supporting the government or neither party was July 28. The Electronic Frontier Foundation, long involved in these cases, filed a brief supporting neither party (h/t IFS), arguing that, because the government needs the ability to express its own position forcefully, the appeals court needed to perform a searching review of each situation alleged to violate the First Amendment. “Government co-option of the content moderation systems of social media companies is a serious threat to freedom of speech; but there are clearly times when it is permissible, appropriate, and even good public policy for government agencies and officials to noncoercively communicate with social media companies about the user speech they publish on their sites.” Id., at 2. While the EFF brief does a nice job of summarizing the law and giving illustrations, generally, suggestions that appeals courts undertake extensive factual reviews fall on deaf ears, especially in an expedited review case. That’s the trial courts’ job.

Twenty-one Democratic State Attorneys General, led by New York State Attorney General Leticia James, filed a brief supporting the DoJ position (h/t IFS): “Amici States’ experiences demonstrate that information-sharing and communication between the government and social-media companies on topics such as child safety, consumer protection, and election integrity is mutually beneficial. And where, as in the federal defendants’ case, it is purely recommendatory and non-coercive, the communications further the public interest and fully comport with the First Amendment.” Id., at 2-3. The brief fails to note that the federal procedural rules require that, at this preliminary stage, the Plaintiffs’ allegations generally must be accepted as pled, not contested on conclusory grounds that they are “purely … non-coercive.” But perhaps that is a consideration only for lawyers, not for elected Attorneys General and their staffs.

House Judiciary Committee Chair Releases More Examples of Government Officials’ Badgering Social Media Companies: Meanwhile, Jim Jordan, Chairman of the House Judiciary Committee, tweeted a series of disclosures of new subpoena responses from Facebook/Meta showing White House officials pressing the social media giant to censor content. GWU Law Prof. Jonathan Turley describes in The Hill some of the jokes that White House officials tried to suppress as disinformation, including:

Now we know that Facebook executives were facing the same insatiable government desire for censorship. In an April 2021 email, Nick Clegg, Facebook’s president for global affairs, wrote to colleagues that Andy Slavitt, a senior adviser to Biden who was steering COVID-19 policy, “was outraged — not too strong a word to describe his reaction — that [Facebook] did not remove this post.”  

The post was actually a humorous meme shared by a user named Timothy McComas. It featured actor Leonardo DiCaprio’s character from the film “Once Upon a Time…in Hollywood,” pointing at a TV with a beer and cigarette in hand. The caption read: “10 years from now, you will be watching TV and hear…. ‘Did you or a loved one take the COVID vaccine? You may be entitled…’”

The Wall Street Journal (paywall) and Forbes have more details, but it’s just more (and more damning) evidence of relentless pressure on social media companies. Matt Taibi, one of the authors of the earlier Twitter internal files coverage comments on the “Facebook Files” disclosures: “News outlets wail about ‘disinformation’ when they’re aware the public has tuned them out. When people don’t listen to reporters, it’s usually because they suck. … A more embarrassing outcome for our business would be hard to imagine.”

Massive Study Suggests Changing Facebook’s Algorithm Will Not Change Political Beliefs: Speaking of Facebook, back in 2020, it commissioned a big study of whether the content that its algorithms directed to customers actually made a difference in political beliefs. The study was conducted by academic researchers and released in four tranches in the journals Science and Nature on July 27. The Washington Post reports that the first results of that study “show that the company’s platforms play a critical role in funneling users to partisan information with which they are likely to agree. But the results cast doubt on assumptions that the strategies Meta could use to discourage virality and engagement on its social networks would substantially affect people’s political beliefs.”

For example, the article “Like-minded sources on Facebook are prevalent but not polarizing,” in Nature reports that:

Here we present data from 2020 for the entire population of active adult Facebook users in the USA … We found that the intervention increased their exposure to content from cross-cutting sources and decreased exposure to uncivil language, but had no measurable effects on eight preregistered attitudinal measures such as affective polarization, ideological extremity, candidate evaluations and belief in false claims. These precisely estimated results suggest that although exposure to content from like-minded sources on social media is common, reducing its prevalence during the 2020 US presidential election did not correspondingly reduce polarization in beliefs or attitudes.

Pew Research Center Reports Big Divide Between Democrats and Republicans Over Government Censorship Claims: A new Pew Research Center poll found that a much higher percentage of Democrats than Republicans support government efforts to censor “misinformation” online. Law Prof. Eugene Volokh shrugged about the finding: “Unsurprising, it seems to me: People’s views on the question likely depends on how much you trust the U.S. government’s judgment of what is “false information,” and Democrats today trust it more than do Republicans.”

Does A C4’s Guilty Plea To Being Used For Bribery Justify Government Officials’ Silencing Tax-Exempt Organizations’ Speech: Forbes has an op-ed discussing Generation Now, a 501(c)(4) social welfare organization which pled guilty to racketeering for funneling $61 million in energy company money to politicians who supported failing nuclear power plants, but the point of the article is how companies are facing increasing concerns about “reputational risk,” which is the excuse offered by New York state financial regulators for trying to silence a controversial c4 in the NRA v. Vullo case pending in the U.S. Supreme Court.

Corporations increasingly face risk from their political spending, and that risk is heightened when they have not charted where funds will actually go. When political spending is funneled through “dark money” groups used by candidates and officeholders or through third-party groups such as trade organizations or non-profit partisan groups, corporations (and their shareholders) often don’t know how their money will actually be spent. When discovered and spotlighted, such contributions can ultimately associate a company with controversial political figures, positions contrary to core company values and interests, or corruption.

Internal Revenue Service

IRS Releases New Audit and Technical Guides, Including One of 501(c)(5) Organizations: We used to get annual Continuing Professional Education guides from the IRS Exempt Organizations Division, but those were discontinued 20 years ago (they still exist online and are still pretty useful). Now those have been replaced by Audit and Technical Guides in a variety of areas (note: ATGs become TGs “when completed”, meaning that the writing style shifts from “Do this, Not that” to include some background on historical, legal and tax principles, though not as much as in the older CPE texts), and four new Guides have been published:

• TG 3-10: Disqualifying and Non-Exempt Activities – Trade or Business Activities – IRC Section 501(c)(3)
• TG 5: Labor, Agricultural, and Horticultural Organizations – IRC Section 501(c)(5)
• TG 44: Qualified Tuition Program – IRC Section 529
• TG 65: Excise Taxes – Excess Benefit Transactions – IRC Section 4958

Historically, the amount of Service guidance on 501(c)(5) organizations, covering labor, agricultural and horticultural organizations, has been limited. Note, for example, that very few of the references in the new TG 5 are from the 21^st Century (except for the annual update of procedural Rev. Procs).  Having a new 40-page long guide on c5s is a welcome reminder, but not really a refresher or new perspective.  

FEC

Judge Resolves CLC Challenge to Heritage Action for America’s Campaign Finance “Deadlock Dismissal” Cases: After many years of litigation, we finally have at least one answer in the lawsuit Campaign Legal Center filed in 2018 against Heritage Action for America alleging a failure to disclose the names of donors to independent expenditures: the Federal Election Commission violated the law by failing to disclose a deadlocked vote on dismissal or enforcement. In a 22-page Memorandum Opinion, U.S. District Judge Carl J. Nichols of the District of Columbia, also granted Heritage Action’s Motion to Dismiss, rejected CLC’s Motion for Summary Judgment, and denied the FEC’s two Motions to Dismiss.

The cases arose because of the FEC’s unique statutory structure: no political party has a majority of members of the Commission. In practice, this requirement has little effect and the FEC goes about most of its business without a partisan deadlock. At least that was the tradition and reality for many years. In recent years, however, the FEC has “deadlocked” on a large number of decisions coming before it, which might have triggered a portion of the governing statute that provides that a denial of agency action might allow a private litigant to take the case to the District Court for D.C. Many of these cases stacked up over time recently, while the agency did not have a quorum of Commissioners to vote on action at all. Judge Nichols’ decisions have not cleared out all the remaining cases, but they do show that there is a clear path, subject to review on appeal by the D.C. Circuit, to eventually resolving these cases.

FEC Approves New Procedure to Notify Courts When It Has Voted Not to Defend An Action: As a result of “deadlock dismissal” cases during the period when the FEC was stalemated by ideological concerns, such as the Heritage Action for America cases discussed in the prior topic, Commissioner Allen Dickerson proposed a new procedure to notify courts and the U.S. Assistant Attorney for the Civil Right Division at DoJ that the Commission has voted not to defend the action. After receiving comments from CREW and IFS, the FEC adopted the proposal.

Department of Justice

DoJ Drops Prosecution of Sam Bankman-Fried For Alleged Campaign Finance Violations: After months of news about notices from the FBI and other investigators about how bankruptcy courts and others would force tax-exempt organizations to return contributions from Sam Bankman-Fried after the crypto billionaire was charged with numerous illegalities, the Department of Justice came up against an immovable force: the government of the Bahamas, which was refusing to extradite the fugitive if those charges were pending. The New York Times and Forbes have more. But still no authoritative guidance for tax-exempt organizations that want to know if they have to give back money and to whom.

Congress

Coalition Asks Congress to Pass the American Confidence In Elections Act: Luke Wachob of People United for Privacy Foundation sends along the news that “a coalition of over 70 nonprofit leaders and organizations [sent] a letter to Congress urging support for the American Confidence in Elections (ACE) Act’s protections for 501(c) donors, including provisions limiting the power of the IRS and SEC.”    

The American Confidence in Elections Act would enshrine four vital privacy protections into law through the following provisions:

• Speech Privacy Act of 2023. Codifies the Supreme Court decisions in NAACP v. Alabama and AFPF v. Bonta by prohibiting federal agencies from collecting or disclosing the names of nonprofit supporters. Agencies that are required by law to collect this information are exempted, and penalties for government officials that illegally reveal this sensitive information are included. (Sec. 308)
• Don’t Weaponize the IRS Act. Enshrines into law 2020 reforms issued by rulemaking that prevent the Internal Revenue Service from collecting and warehousing nonprofit donor information that the agency has acknowledged it does not use or need. (Sec. 309)
• IRS Protections. Prevents the IRS from writing new regulations to limit political speech by nonprofits. (Sec. 310)
• SEC Protections. Prohibits the Securities and Exchange Commission from requiring businesses to disclose their giving to nonprofits and membership in trade associations. (Sec. 341)

The letter and list of signers are available on the PUP website. A July 12 op-ed by Heather Lauer, CEO of PUFP, urging support for the legislation, ran in the Washington Times.

Courts

New Law Review Article on Percoco v. United States Argues That Consequences on Other Bribery Prosecutions Might Be Significant:  Law Professor Daniel Richman, of Columbia Law School, has a new article coming out in Yale L. J. Forum discussing how the Supreme Court’s recent decision in Percoco v. United States, 598 U.S. __ (May 11, 2023)  might affect future prosecutions for corruption. In Percoco, a close ally of then-New York Governor Andrew Cuomo was prosecuted for bribery for accepting a payment from a government contractor; the Department of Justice’s argument was that, although Percoco was not a government employee at the time he interacted with the contractor (he was on leave working for Cuomo’s political campaign), his influence over government employees and his imminent return to government employment was sufficient to trigger liability. The Supreme Court rejected the claim, noting that there were instances in which non-employees would be bound by their close ties and influence over government policy, but this wasn’t one of them.

Richman writes:

When a lobbyist makes a call to persuade a state official to do his bidding on behalf of a paying client, that’s called America. What about when a governor’s right-hand man, who has temporarily stepped down from his high executive post to work on the governor’s campaign and is about to resume his official duties, gets paid to make such a call (and gets quick results)? How hard should we try to distinguish between the two for the purposes of the federal mail and wire fraud statutes. We certainly don’t think of the lobbyist owing the duty of “honest services” to the public that the state official owes. Indeed, that’s why we may regret her influence. What about the once and future aide to the governor?

Such was the issue before the Justices this Term in Percoco v. United States, and they thought it quite easy, at least when it came to overturning the conviction of Joseph Percoco, a top aide to former New York Governor Andrew Cuomo – a conviction that the Court found had improperly rested on Percoco’s “special relationship” with the state government and the fact that he “dominated and controlled” state business. Justice Alito– usually quite sympathetic to the statutory arguments of federal prosecutors– wrote for a unanimous Court. While the case’s facts were unique and might, the Court suggested, have supported conviction on a different theory, the decision raises critical questions about the sweep of the Court’s recent reversals of convictions in public corruption cases and the effect of those decisions on corruption enforcement.

“Food, Not Bombs” Wins First Trial Holding that Feeding the Poor Outside A Public Library Is Expressive Speech: Remember Houston’s “Food, Not Bombs” controversy over whether the City violated the First Amendment (under Courts) by ticketing those who were feeding the homeless outside a public library? Houston Public Media reported that, on July 28, a jury found the City’s prohibition violated the First Amendment despite its claim that health and safety regulations allowed it to regulate how food was distributed to the public. Another 43 trials are already scheduled for those who have received tickets. Advocates are betting that a new Mayor will be elected next year and they will lobby the new administration to rescind the prohibition.

States

NY Attorney General’s Office Leaks Donor Information: New York was one of the States that required organizations to file their Schedule B lists of donors, pledging that it would hold them securely. Unfortunately, like California, whose disclosure of Schedule B lists led directly to its loss in the Supreme Court in Americans for Prosperity Foundation v. Bonta, somehow that donor list was leaked anyway. The notice said:

Due to clerical error, a small number of charitable organizations’ Schedule B to IRS Form 990 or IRS Form 990PF were inadvertently posted publicly on the Office of the Attorney General’s registry of charities for a limited period of time. The affected organizations are being contacted directly by the Charities Bureau. If you are not contacted, your organization has not been identified as being affected by this error. The Charities Bureau takes its obligations to protect the confidential information of the charities it regulates very seriously and has taken additional prudent steps to safeguard this information. If you have any concerns or questions, please contact the Charities Bureau by email to charities.bureau@ag.ny.gov.

It’s good to know that the Charities Bureau “takes its obligations to protect the confidential information of the charities it regulates very seriously.”

California Adopts New “Pay-to-Play” Regulations: Covington has an important new advisory about a big change to California law: “California recently passed a series of new regulations affecting its “pay-to-play” laws that limit political contributions by state and local government contractors and others involved in proceedings on contracts, licenses, permits, and other “entitlements for use” in the state.  These regulations implement changes to the law that took effect this year, which include applying the law to contributions to local elected officials and extending the prohibited period through 12 months after the end of a proceeding covered by the law.  The regulations also clarify some previously vague issues in the law.”

General

Leonard Leo Speaks Up: After being the punching bag for many in the media and elsewhere, Leonard Leo, accused of being the personification of malign influence on transparency and “good government,” has been relatively quiet in the media over what he’s doing and why. He emerged, briefly, but with some interesting perspectives, in, of all things, Maine Wire (h/t IFS), a podcast from way up north. Among other comments, Leo said:

[on anonymous giving:] “Well, first of all, I’ve always kind of chuckled at this idea that somehow I’m involved with dark money, because does anybody really doubt what it is that I’m helping to support? I think I’ve been pretty transparent about what I believe in, and pretty transparent about how I think the rule of law should be administered in our country. And so, I don’t think there’s a lot of opacity or darkness about what it is that I and the institutions I’m a part of help to support.

But look, you touched upon the history of our country. Our country has a rich history of anonymous giving, going all the way back to the Revolutionary War. But look, you touched upon the history of our country. Our country has a rich history of anonymous giving, going all the way back to the Revolutionary War. The Revolutionary War, the Civil War, the women’s suffrage moment, the Civil Rights movement of the 1950s and 1960s, the gay rights movement of the 70s and 80s, all of those movements were in important part — or in significant part, sometimes — supported by anonymous giving.

And the reason is because, the power of ideas, the power of the ideas ought to matter more than the peculiar personalities of the people who are supporting them. We should judge what we want to do in this country by the intellectual and moral force of an idea, not by the quirky personality, or looks, or wealth, or whatever of the people supporting it.

Look at the underlying idea — does it make sense? Is it morally justifiable? Is it intellectually supportable? And that’s why people give anonymously, so that people can focus their attention on the ideas.”

Tax-Exempt Organization and X Corp. (Twitter) Lawyers Rattle Sabers Over Organizations’ Claims About Hate Speech Tweets: So, influential tech media site PC Magazine reports that Elon Musk bought Twitter, created chaos and renamed the company “X,” all because he supported free speech? Who knew? Especially now that his lawyers have complained that a tax-exempt organization’s complaints about hate speech on Twitter (err, X) harm the company’s reputation, driving away advertisers. The organization’s lawyer complained that the complaint was “ridiculous” and demanded that X preserve all its records pending possible litigation. New York law at its finest, given that they could probably get everything they needed from federal agencies involved in suppressing social media hate speech (see above under Censorship). The Washington Post also weighs in.

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