Author: barnabyzall

“In Defense of ‘Dark Money’”

“In Defense of ‘Dark Money’”

Nan Aron and Abby Levine, both from the invaluable Alliance for Justice, have an important article in today’s American Prospect making a progressive defense of the use of 501(c)(4) social welfare organizations to oppose the Trump agenda, even though c4s do not disclose their donors (“dark money”). The authors admit “It’s a head-spinning development for some—and comes with no shortage of angst for committed progressives who are strongly allergic to the “dark money” notion and all that it implies.” 

Nevertheless, Aron and Levine, themselves mainstays of progressive advocacy, say:

there is a very real risk that if donors on the left become squeamish about supporting new 501(c)(4)s, the progressive community will lose the huge advantages of social-welfare organizations in the era of Trump, the worst possible time to sacrifice any tool in the toolbox.

Code word alert (in a good way): AFJ is very big on “tools.” It created and continues to sponsor the Bolder Advocacy website, with its “toolkits” for advocates. It’s probably that experience with helping advocates effectively convey their messages that helps AFJ cut through the political undercurrents, and understand the true value of allowing freedom to advocate. Indeed, it is, in fact, “bolder” to challenge the thinking that “dark money” is inherently bad.

But this isn’t the first time progressives have argued the value of c4s, despite dark money. Eliza Newlin Carney wrote an article in April asking “Should ‘Dark’ Money Power the Resistance to Trump?” (A quibble, because Carney, often touted as an expert in election law, should know better: she says the IRS “approves” c4s; it doesn’t. Unlike 501(c)(3) charities, C4s automatically have that status upon their organization – although they can lose it – so the IRS simply “recognizes” them, which is one reason the IRS application Form 1024 says so in its title. The IRS does “approve” c3 charities, because they can receive tax-deductible contributions, which c4s cannot.)

Why is this important? Not so much because those who complain about “dark money” are being hoist on their own petards. But because the explanation undercuts a primary argument against campaign finance “reform.” Carney makes that point explicitly in her piece: “If Senators up for reelection get help from progressive groups operating in secrecy, it potentially undercuts Democrats’ campaign finance message.”

But that battle was lost long ago. Progressive groups have used c4s extensively in recent years. In fact, in the 2016 elections, according to Carney, almost 40% of all undisclosed campaign expenditures (itself a tiny percentage of all campaign spending, by the way) came from progressive groups.

So it is refreshing to see Aron and Levine come out so strongly in favor of allowing Americans of all ideologies band together to advocate their causes:

Well-run and transparent 501(c)(4) organizations can serve the American democratic process well. They provide a forum for individuals to come together and speak out collectively on the issues that matter to them most. While sometimes that may mean taking a political stance on the issues of the day, 501(c)(4)s focus on social welfare, not political activities. These organizations got a bad rap after the IRS scandal, but many of these groups have also come together to further social welfare and to take steps to prevent future abuses. A vibrant 501(c)(4) nonprofit sector is indispensable, and anyone concerned with bolstering the progressive movement should consider devoting more resources to these organizations.

If Facebook Can’t Figure Out What Hate Speech Is, How Could Government Officials?

If Facebook Can’t Figure Out What Hate Speech Is, How Could Government Officials?

Today’s Washington Post has an “insider” story on how difficult it is for Facebook to police “hate speech” and offensive imagery presented to its 2 Billion users a month. Facebook, having run into difficulty when its new “live” livestreaming option began to show suicides, assaults and even murders, is hiring another 3,000 people to help keep its offerings safe. Facebook says it deletes 288,000 hate speech posts a month. Note that these figures include its vast overseas participation, and do not represent the number of domestic incidents.

So Facebook has a “censorship manual” that cites 15,000 words that apparently are not allowed. But most of its monitors seem to be overseas contractors, who may not understand American idioms — or sensitivities. So now minority groups are contending that the Facebook program is biased against minorities, such as using — in a friendly way — intimate racial slurs.

There is apparently even a new organization — the Dangerous Speech Project — that has identified five “factors” in determining whether speech is “dangerous” or not:

  • Speaker: Did the message come from an influential speaker?
  • Audience: Was the audience susceptible to an inflammatory message, e.g. because they were already fearful or resentful?
  • Message: Does the speech carry hallmarks of Dangerous Speech? The hallmarks are:
    • Dehumanization. Describing other people in ways that deny or diminish their humanity, for example by comparing them to disgusting or deadly animals, insects,  bacteria, or demons. Crucially, this makes violence seem acceptable.
    • ‘Accusation in a mirror.’ Asserting that the audience faces serious and often mortal threats from the target group – in other words, reversing reality by suggesting that the victims of a genocide will instead commit it. The term ‘accusation in a mirror’ was found in a guide for making propaganda, discovered in Rwanda after the 1994 genocide. Accusation in a mirror makes violence seem necessary by convincing people that they face a mortal threat, which they can fend off only with violence. This is a very powerful rhetorical move since it is the collective analogue of the one ironclad defense to murder: self-defense. If people feel violence is necessary for defending themselves, their group, and especially their children, it seems not only justified but virtuous.
    • Assertion of attack on women/girls. Suggesting that women or girls of the audience’s group have been threatened, harassed, or defiled by members of a target group. In many cases, the purity of a group’s women is symbolic of the purity of the group itself, or of its identity or way of life.
    • Coded language. Including phrases and words that have a special meaning, shared by the speaker and audience. The speaker is therefore capable of communicating two messages, one understood by those with knowledge of the coded language and one understood by everyone else. This can make the speech more dangerous in a few ways. For example, the coded language could be deeply rooted in the audience members’ sense of identity or shared history and therefore evoke disdain for an opposing group. It can also make the speech harder to identify and counter for those who are not familiar with it.
    • Impurity/contamination. Giving the impression that one or more members of a target group might damage the purity or integrity or cleanliness of the audience group. Members of target groups have been compared to rotten apples that can spoil a whole barrel of good apples, weeds that threaten crops, or stains on a dress.
  • Context: Is there a social or historical context that has lowered the barriers to violence or made it more acceptable? Examples of this are competition between groups for resources and previous episodes of violence between the relevant groups.
  • Medium: How influential is the medium by which the message is delivered? For example, is it the only or primary source of news for the relevant audience?

Dangerous Speech Project, “What is Dangerous Speech?”

Unfortunately, even this five-part factor test, with subparts, is insufficient for this organization, so it provides a further “analytical framework” so the observer can be more certain of what speech is “dangerous” and what is not. The “Guidelines” are five pages long with footnotes. Such ambiguous terms as “coded words” are illustrated by examples from genocidal history.

When speech is deemed an existential threat, as when “dangerous” is compared to genocide, the very act of defining terms becomes crucial. This nonprofit organization can’t do so in a simple way, nor can a massive corporation like Facebook.

How then could a judge, legislator or other government official?

That is one reason why the First Amendment is a simple “thou shalt not”-type of rule. But even that may not be enough for some. Senator Diane Feinstein (D-CA) and UCLA Law Professor Eugene Volokh recently discussed this topic at a June 20, 2017, Senate Judiciary Committee Hearing. Feinstein and her colleague Dick Durbin (D-IL) thought that mere “menacing” or racist words was enough to cut off speech; Volokh pointed out that such actions were likely counterproductive and probably unconstitutional. Video of the hearing is here.

Putting the Brakes on the Hecklers’ Veto

Putting the Brakes on the Hecklers’ Veto

Stories from the Right and the Left in today’s (always invaluable) daily update from the Center for Competitive Politics. From Brooklyn, Liberty Nation reports on an “assault” on a Fox News host Kat Timpf, which consisted of being “doused” by a water bottle, but had its intended effect of making her too upset to speak. And Tracey Tapp, of Progressives NorthWest Florida, believes that some of her organization’s members are “are afraid to be vocal about their views because it could hurt their business or negatively impact their children in school.“As the late Justice Antonin Scalia wrote concurring in Doe v. Reed, participation in politics sometimes does require “civic courage.” But moving to violence is, in fact, the “red line” beyond which protest turns to criminality.

And the “hecklers’ veto” was on vivid display at this spring’s violent attacks and craven campus administrators’ surrenders at Evergreen State College in Olympia, Washington. Ironically, the professor bearing the brunt of the students’ attacks describes himself as a long-time progressive and defender of the First Amendment. Video is available from HBO’s Vice News.

Recent violent speech protests at small private colleges such as Middlebury have resulted in injuries. So it is heartening in today’s world of shouting down speakers on campus to read that one of the Claremont Colleges in Claremont, California, did, in fact, do something when protestors turned to violence. (Disclosure: my wife and I are both graduates of Pomona College, founding member of the Claremont Colleges). The schools have periodically gone insane, as when they hired avowed Communist Angela Davis in the 1970’s as a slap at conservative Board members. But they, like other colleges, are finally starting to realize what a danger having “gag mobs” rule their campuses may be, and reiterated their support for free speech on campus.

Now, however, Claremont McKenna College, one of the Claremont Colleges, went further and suspended ten students for their participation in “heckler’s veto” violence. In April, violent crowds of students shoved and attacked people, including faculty and students, who wanted to hear conservative speaker Heather MacDonald. As a result, MacDonald had to give her speech over a video link. Following her speech, some students argued that “Truth is a tool of white supremacy,” and other idiotic nonsense. CMC issued a statement on the suspensions:

The blockade breached institutional values of freedom of expression and assembly. furthermore, this action violated policies of both the College and The Claremont Colleges that prohibit material disruption of college programs and created unsafe conditions in disregard of state law.”

This recognition of colleges’ responsibilities to free speech is not shared by everyone. Senator Diane Feinstein (D-CA) recently mused that protecting free speech on campus is too expensive, and could lead to another “Kent State.” Fortunately, UCLA Law professor Eugene Volokh was a panel witness at that hearing and a healthy discussion ensued.

About that FEC Inspector General’s “nothing to see here, folks” Report …

About that FEC Inspector General’s “nothing to see here, folks” Report …

On March 3, 2017, the Federal Election Commission’s Office of Inspector General issued a formal report on its investigation of whether FEC staff, acting without authorization from the Commission itself, violated federal laws in contacting Lois Lerner, then head of the IRS’s Exempt Organizations Division, about obtaining confidential information concerning several conservative organizations. Almost no media picked up the FEC OIG report, probably because it offered no “click-bait” news.

And that’s a shame, for a variety of reasons.

The report found no violations of federal law in the many e-mails between FEC staff and IRS staff. The report’s conclusion:

In pre-RTB [i.e., before the Commission voted to commence an investigation] communications with the IRS, FEC personnel did not violate the statutory provision that the Commission must find RTB before an investigation may be commenced, and did not violate any regulation, directive or policy concerning pre-RTB activity.

No evidence was developed to indicate the communications between FEC employees and the IRS were made for the purpose of improperly coordinating the targeting of tax exempt political organizations for political reasons.

For incredibly detailed background on the IRS scandal, check Paul Caron’s blog. But even Caron, Dean of the Pepperdine Law School, didn’t cover the FEC OIG report.

Was the report really “nothing to see here, folks. Move along.”? Actually the report itself was internally consistent, in that it showed that much of what the IRS gave the FEC staff was public information, then or eventually made available to the public. The IRS made available, for example, several organizations’ Form 990 annual returns, but the Schedule B list of donors appropriately redacted the names and addresses of donors.

But that wasn’t what the FEC OIG should have looked at. Its focus was too narrow, like a spotlight that fails to illuminate the corners that a floodlight would expose.

In context, including by looking beyond the walls of the FEC itself, and in particular, the flood of e-mails once hidden by the IRS and now making their way into the public records, a lot more is shown. Look, for example, at only one small part of this enormous area: the access, and why the particular channel of access matters.

The FEC staff first said that the third-party complaint referenced the particular organizations’ tax-exempt status. So, being diligent staffers, the FEC Office of General Counsel wanted to know whether, in fact, the organizations were exempt from tax. Like the vast majority of people, they knew nothing about tax exemption, including where to look to find that readily-available information. So someone had the bright idea to go to Lois Lerner, the head of the EO Division at the time.

Lerner was a surprise pick for IRS EO Division chief. She had no tax background. She had been a lawyer at the FEC, though, where she was the head of “outreach,” meaning the agency’s attempt to educate the political advocacy community on the hugely-complex campaign finance and reporting rules. And “outreach” was a big push at the IRS at the time she was hired.

But beyond that, Lerner was also a dogged researcher about conservative organizations, not content to allow mere statutes, or even losses in court, stand in her way. For example, Cong. Peter Roskam (R-IL) reported on April 17, 2015, that way back in 1996, Lerner was on the warpath:

I want to take you back to 1996. A friend of mine in Illinois, my former law partner, Al Salvi, was running for the United States Senate. He loaned himself some money to his campaign. The Federal Election Commission—different agency than we’re talking about—but stick with me. This is like a Seinfeld episode—it’s all going to come together at the end. The Federal Election Commission said, ‘You did that the wrong way. You violated federal election law.’ They placed him under investigation. World War II headlines in the Chicago papers. He goes on and he loses the election for the United States Senate. Now, political scientists can debate whether he would have won or whether he would have lost. But let’s face it: being under investigation by the Federal Election Commission generally does not help you in a political campaign.

At the end of that campaign, the Federal Election Commission came and they made a very large settlement demand—I don’t remember off the top of my head how many hundreds of thousands of dollars they were demanding from him. But he said, ‘I didn’t do anything wrong and I’m not going to pay you any money.’ Federal Election Commission said, ‘That’s fine. We’re going to sue you,’ which they did. They filed a lawsuit in federal court. The federal judge reads the pleadings [and] dismisses the case against the Federal Election Commission—finds in favor of Al Salvi. You would think that this drama all ended there. No, no, no. No, the Federal Election Commission came back. They said, ‘Well, we know you won, but we’re still going to make a settlement demand of you. We’re going to lower the amount, but we’re still going to make a demand. Because if you don’t pay us we’re going to appeal the judge’s ruling.’

Al Salvi’s a pretty sophisticated lawyer and he talked to the lawyer at the other end of the line and said to that person, ‘Give me the person, and let me talk to the person who had authority on this case. Because you don’t understand—I won, you lost, I’m not going to pay any money. Let me talk to the person with authority on the case at the Federal Election Commission.’ That person got on the phone with Al Salvi and said this, ‘If you pledge never to run for office again, we’ll drop this case.’ Al Salvi said, ‘Put that in writing.’ The person said, ‘We don’t put that in writing and we never lose.’ That person was Lois Lerner.

Now, you take that disposition. You take that attitude. You take that long arm of a bureaucrat and reach into the sanctity of the ballot booth. And you’ve got a real problem. And you up the wattage on that, and you move her over, and you give her the type of authority not that the Federal Election Commission has, but the Internal Revenue Service. To grab somebody by the throat and do whatever they want with them with the possibility of imprisoning them.

So back to the FEC OIG report: note that the FEC inquiries started in 2008, five years before Lerner’s revelation of the targeting scandal, two years before the Supreme Court’s decision in Citizens United and the D.C. Circuit’s decision in SpeechNow, and two years before the IRS EO Division decided to target advocacy-oriented conservative organizations based on their names (and also dragged in numerous other “innocent” organizations). People at the FEC knew Lerner, and could get her attention, which is always critical in dealing with a government agency, and certainly true at the IRS.

And they got her attention, repeatedly. And Lerner then pushed her staff whenever, as those of us who work in this area know happens all the time, they slowed or were non-responsive. Lerner’s inquiries, and her push to get the answers, probably sowed the seeds of concern in her IRS staff about her priorities and pointed the way to the distrust of conservative organizations that undergirded the later targeting.

Now enforcement agencies working together is probably a good thing in most cases, avoiding duplication and increasing compliance. Some have even suggested that statutory barriers between IRS cooperation with other agencies be dropped, especially because the IRS collects a huge trove of information not available elsewhere; that is, after all, why the FEC staff went to Lerner in the first place. Former Assistant Attorney General Mythili Raman told Senate Democrats in 2013 that greater cooperation between the IRS, FEC and the Department of Justice would be helpful to her prosecution of federal law violations. But this type of cooperation between the two government agencies whose job it is to police and stamp out campaign speech and other First Amendment activity can also be dangerous.

In the later context of the inter-agency meetings between various enforcement arms of the federal government to decide whether and how to prosecute the alleged miscreants at the heart of these conservative organizations’ supposed attempts to violate federal law governing their advocacy, however, this push from “outside” is just the sort of trigger that tickles the ponderous federal bureaucracy into action. Indeed, as e-mails provided to Judicial Watch in a release in 2015 showed, Lerner, Judy Kindell (a legendary figure in IRS EO political determinations), and other IRS EO Division personnel met in 2010 with the Section Chief of the Public Integrity Section of the Dept. of Justice’s Criminal Division to discuss then-“recent” political activity of exempt organizations. The EO Division provided the Dept. of Justice with 1.25 million documents on EOs.

As she told the House investigative committee and as she said in a Duke University speech in 2010, Lerner was under tremendous pressure to “do something” about these organizations. “They want the IRS to fix the problem.”

“So everybody is screaming at us right now: ‘Fix it now before the
election. Can’t you see how much these people are spending?’”

– Lois Lerner, October 19, 2010, Duke University

The pressure doesn’t absolve Lerner from her actions, nor does it suggest that the FEC staff were behind the IRS targeting scandal. The IRS did what it did, and got itself into trouble. But the IRS was not operating in a vacuum.

The timing suggests that the FEC inquiries, repeated with an increasing sense of urgency, and the Dept. of Justice requests, and several other things, combined to push the IRS off its traditional neutrality and into the maelstrom of the partisan targeting scandal. That there wasn’t any express direction from the White House (as there had been in the 1990’s Clinton White House audit requests), doesn’t really mean what was done might have been done to relieve the relentless pressure on the IRS EO Division. After all, at about the same time, in 2010, the IRS began auditing donors to conservative organizations in response to letters from Senators.

There’s a lot more that could be said about this report and the evolution of the targeting scandal. But it’s enough for now to say that someone should be looking at all of this again, and not with as narrow a focus as the FEC OIG took.

This was not, as the FEC OIG report suggests, just a routine request for publicly-available information. It was a successful attempt to get highly-confidential information quickly from a person with a known predilection toward the FEC staff’s working hypothesis that RTB existed and would ultimately justify their investigation. It was a trigger and accelerant for Lerner’s — and ultimately the IRS staff’s — concern about a growing conservative effort to change the direction of government. And it started long before Citizens United. And it resonates long afterward, with IRS budget problems in Congress and numerous calls for investigations and more legislation.

This is really esoteric stuff, and highly-“inside baseball.” But it does suggest that this report should have received more attention than it did. And the subject is not something to be swept under the rug.