In the News
Michigan Capitol Confidential: Donors To Politically Sensitive Groups Protected By Privacy Bill
By Evan Carter
A bill shielding contributors to nonprofit organizations from having their personal information and contribution amounts handed over to government agencies was advanced by a state Senate committee Wednesday…
It would prohibit state and local government agencies from requiring nonprofit organizations to turn over their contributor lists, including personal information on members, supporters, volunteers or donors. This would not apply if an agency obtained a court-ordered warrant for the information.
The bill also prohibits governments from requiring their contractors to disclose their financial or other support to nonprofits. Government agencies that already have or later acquire a nonprofit’s donor data would have to get permission from the organization and every individual contributor before the information could be released…
Zac Morgan, an attorney with the Institute for Free Speech, testified on behalf of the bill and said it will protect “privacy in association.”
“SB 1176 will preserve privacy in association, a fundamental right that the Supreme Court has repeatedly affirmed is held by all Americans and is essential to civil society,” Morgan said in an emailed statement. “Importantly, it will bar public agencies from acting alone to undermine that vital freedom, as has happened in states like California and New York.”
An issue brief from the institute cites the U.S. Supreme Court’s 1957 landmark ruling on this issue, which denied the state of Alabama’s demand that the NAACP turn over the names of its contributors.
David Guenthner, the head of government affairs at the Mackinac Center for Public Policy, also was supportive of the bill. “SB 1176 writes into Michigan law the long-standing practices for privacy of donors and supporters of nonprofit organizations,” he said.
KRMS Radio Missouri: Federal Appeals Court Upholds Missouri Requirements on Unpaid Lobbyists
A federal appeals court in Virginia has ruled against a Missouri man challenging a state law that places restrictions on unpaid political activists. Ron Calzone was challenging the law that requires anyone attempting to influence legislators to follow the same rules as professional lobbyists. That means you have to register as a lobbyist and file as many as 14 reports with the state each year. In a ruling issued Wednesday, the Eighth Circuit Court of Appeals Panel in Alexandria, Virginia ruled 2-1 in favor of the state law. The Freedom Center of Missouri, which represents Calzone in the case, calls the ruling “a significant strike against Americans’ first amendment rights.”
Wilson Times: Free speech suit could discourage wrongful arrests
By Editorial Board
The high court heard oral arguments this week in Nieves v. Bartlett, a free speech lawsuit Russell Bartlett filed after state troopers arrested him during the 2014 Arctic Man winter sports festival in Alaska. Authorities were investigating reports of underage drinking and Bartlett brushed off one trooper who asked him questions and yelled at a second lawman who was speaking with a teenager.
In addition to resisting arrest, Bartlett was accused of disorderly conduct – a catchall charge that’s so vaporous it can be contorted to fit nearly any behavior an officer dislikes. Prosecutors dismissed the charges and Bartlett sued, claiming his arrest constituted retaliation for the lawful exercise of his First Amendment right to free speech…
Some minor crimes allow wide latitude for enforcement or lenience, giving officers the choice of letting offenders off with a warning, writing a citation or effecting an arrest. A citizen’s free speech must not be seen as an aggravating factor that brings the handcuffs out of their holster.
That’s the crux of Bartlett’s argument – if the First Amendment shields his words, the indignity of arrest and the threat of punishment, even if later withdrawn, is a clear infringement of his rights.
We join The Associated Press, The Media Coalition, the Institute for Free Speech and the Electronic Frontier Foundation, among other First Amendment advocates, in supporting Bartlett’s right to sue.
The Supreme Court should rule that his lawsuit can proceed, and in doing so, discourage overzealous enforcement of low-level misdemeanor statutes that wouldn’t be invoked absent critical but constitutionally protected speech.
Detroit News: Michigan Senate: Make it a crime for political nonprofits to disclose donors
By Jonathan Oosting
While non-profits are not currently required to publicly disclose donors, sponsoring state Sen. Mike Shirkey, R-Clarklake, said his bill would provide “affirmative protection” against actions by government officials.
California’s attorney general in 2013 required non-profits to disclose donors to the state, citing enforcement purposes but prompting an ongoing legal challenge involving the Americans for Prosperity Foundation…
Shirkey’s legislation, as amended this week, specifies that it will not affect Michigan’s campaign finance laws. And it “does not in any fundamental way disrupt the status quo,” said Zac Morgan of the Institute for Free Speech, a non-profit based in Virginia.
“Rather, it will prevent public agencies from acting without legislative authorization to demand donor information,” he said Wednesday in committee…
Supporters contend non-profit giving is a form of free speech and association guaranteed by the U.S. Constitution.
The proposal would prohibit harassment and keep protected donor information “off government servers, vulnerable to hacking by nefarious or foreign actors or misuses by government officials,” Morgan said.
The Courts
Courthouse News Service: Transit Authority’s Politics Ban Upheld by Judge
By Alexandra Jones
A federal judge found it constitutional Wednesday for transit officials in greater Philadelphia to block an advertising campaign that called out racial disparities in mortgage lending.
“SEPTA has shown that the challenged provisions [of its advertising standards] do not prohibit ads taking a position on ‘matters of public debate’ because of the viewpoint expressed,” U.S. District Judge Michael Baylson wrote. “Rather, SEPTA restricts all ‘political’ ads as well as ads expressing any viewpoint on “economic, political, religious, historical, or social issues.”
Represented by the American Civil Liberties Union, the Center for Investigative Reporting had brought the lawsuit here in May 2018. SEPTA, which is short for the Southeastern Pennsylvania Transportation Authority, triggered the group’s ire earlier this year when it refused to accept an ad campaign promoting the center’s year-long study of racial bias in the mortgage market.
Though the center argued at a trial that the refusal of its ad amounted to viewpoint discrimination, Baylson concluded Wednesday that the agency applied its rules evenly.
Courthouse News Service: Libertarians Fighting Payment-Plan Rules Stumble at DC Circuit
By Tim Ryan
Though federal elections rules permit individuals to give up to $339,000 per year to political parties, that total comes with certain specifications. Donors can give $101,700 each to accounts used for presidential-nominating conventions, building expenses and legal proceedings, but the maximum allowed to general-purpose accounts is $33,900.
The scheme drew a challenge from the Libertarian National Committee after Joseph Shaber left it $235,000 when he died in 2014. Shaber’s gift came with no strings attached, but the Libertarian Party says that $33,900 limit on general-expenditure donations forces it to collect the money in installments each year, leaving the rest in an escrow account.
Before the D.C. Circuit on Friday, Libertarian National Committee attorney Alan Gura attacked the limits as unconstitutional both on their face and as applied to Shaber’s gift.
Casting the donation caps as a restriction on political speech, Gura told the judges the party knows of donors who would be willing to give the party more of their money if not for the fact that it would need to go to things like building maintenance…
Furthermore, Gura said, the government has given no plausible reason to justify capping the contributions from a dead person, the potential corrupting influence of which are obviously limited.
“The dead are different than the living,” Gura said Friday.
Gura argued as well that the policy inherently benefits the two major political parties because they have larger expenses for their presidential-nominating conventions and headquarters. Allowing larger donations used for those specific expenditures frees up the parties to spend more on campaigning, Gura said.
Congress
Washington Post: House Democrats to unveil political reform legislation as ‘H.R. 1’
By Mike DeBonis
House Democratic leaders on Friday unveiled the outline of a broad political overhaul bill that will include provisions for public financing of elections, voting rights reforms and new ethics strictures for federal officials.
The bill has been in the works for months as part of Democrats’ “For the People” campaign platform…
Numerous outside groups aligned with Democrats have pushed the party’s House leaders to schedule a reform bill as their first order of business, and House Minority Leader Nancy Pelosi (D-Calif.) announced before the election that the bill would be designated “H.R. 1” – a symbolic title meant to emphasize its importance, even if it is unlikely to be the first piece of legislation to get a House vote in the new Congress…
Elements of the legislation include new donor disclosure requirements for political organizations, a system to multiply small donations to political campaigns, a mandatory new ethical code for the Supreme Court, an end to most first-class travel for federal officeholders, and a broad effort to expand voting access and reduce partisan gerrymandering.
Vox: House Democrats unveil their first bill in the majority: a sweeping anti-corruption proposal
By Ella Nilsen
There are three main planks the bill covers: campaign finance reform, strengthening the government’s ethics laws, and expanding voting rights…
Campaign finance:
– Public financing of campaigns, powered by small donations. Under Sarbanes’s vision, the federal government would provide a voluntary 6-1 match for candidates for president and Congress, which means for every dollar a candidate raises from small donations, the federal government would match it six times over. “If you give $100 to a candidate that’s meeting those requirements, then that candidate would get another $600 coming in behind them,” Sarbanes told Vox this summer. “The evidence and the modeling is that most candidates can do as well or better in terms of the dollars they raise if they step into this new system.”
– Passing the DISCLOSE Act, pushed by Rep. David Cicilline (RI) and Sen. Sheldon Whitehouse (RI), both Democrats from Rhode Island. This would require Super PACs and “dark money” political organizations to make their donors public.
– Passing the Honest Ads Act, championed by Sens. Amy Klobuchar (MN) and Mark Warner (VA), which would require Facebook and Twitter to disclose the source of money of political ads on their platforms, and share how much money was spent…
HR 1 will be a large package, but Sarbanes said in addition to passing it as the first bill, members will likely break out pieces of it into smaller bills as well that individually could get bipartisan support from Republicans in the Senate – things including the Honest Ads Act and election security.
Politico: First bill for new House Democratic majority: Campaign finance, ethics reform
By Maggie Severns
It would… require “all political organizations” to disclose donors and overhaul the Federal Election Commission…
House Democrats are making reform a priority for the new Congress, but they are expected to have trouble passing the package in the Republican-controlled Senate. Some advocates hope that, after the House passes the bill, pieces of it could be broken off and negotiated with the Senate or included as policy riders in government spending bills or other large pieces of legislation.
IRS
By Jacob Sullum
The rule, described in an Internal Revenue Bulletin dated January 2, says the IRS will deny tax-exempt status to “an organization whose purpose is directed to the improvement of business conditions of one or more lines of business relating to an activity involving controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law regardless of its legality under the law of the state in which such activity is conducted.”
As Washington, D.C., lawyers David Rivkin and Randal Meyer point out in The Wall Street Journal, that language arguably applies to any organization that advocates legalization of marijuana (or any other prohibited substance) or favors looser restrictions on certain prescription medications, both of which would improve “business conditions” for companies that sell those drugs. The exclusion also seems to encompass advocacy of less ambitious reforms…
Nonprofit organizations that are exempt from taxes under Sections 501(c)(3) and 501(c)(4) of the Internal Revenue Code (for “charitable” and “social welfare” organizations, respectively) are subject to restrictions on the amount of “lobbying” they can do. But this exclusion goes beyond those general rules by disfavoring certain viewpoints, which is unconstitutional…
Mason Tvert, spokesman for the Marijuana Policy Project, says his understanding is that the rule applies to new applicants for tax-exempt status but not organizations that have already been granted it. “It sounds like” a new group similar to MPP could be rejected “if whoever is reviewing the application determines the applicant would be working to advance the cannabis industry,” Tvert says in an email. “It wasn’t necessarily simple before. It seems like this new rule could make it even more difficult.”
FEC
Detroit News: FEC dismisses complaint against Kid Rock over his fake Senate campaign
By Melissa Nann Burke
The watchdog group Common Cause had alleged that Kid Rock, aka Robert Ritchie, violated federal election law last year by acting like a Senate candidate while failing to register his candidacy or comply with rules on contributions and spending.
But Ritchie, a Clarkston resident, attested that his run for office was a “concert promotion,” and use of “Kid Rock for US Senate” on merchandise was merely a slogan…
“Here, Ritchie states that the ‘Kid Rock for US Senate’ was not a sincere attempt to seek federal office, but rather continued a ‘long line of celebrity parodies of running for office,'” Commissioners Caroline Hunter and Matthew S. Petersen wrote.
“Celebrities do not enjoy immunity from commission enforcement. By the same token, the commission must be cautious to avoid interference with the ‘unfettered interchange of ideas for the bringing about of political and social changes.’
“The free speech rights of many artists would be hollow indeed if, to avoid government investigation, they must parse their words when touching upon political issues and campaigns.”
The Media
Daily Caller: Exclusive: Google Employees Debated Burying Conservative Media In Search
By Peter Hasson
Google employees debated whether to bury conservative media outlets in the company’s search function as a response to President Donald Trump’s election in 2016, internal Google communications obtained by The Daily Caller News Foundation reveal.
The Daily Caller and Breitbart were specifically singled out as outlets to potentially bury, the communications reveal.
Trump’s election in 2016 shocked many Google employees, who had been counting on Democratic nominee Hillary Clinton to win.
Communications obtained by TheDCNF show that internal Google discussions went beyond expressing remorse over Clinton’s loss to actually discussing ways Google could prevent Trump from winning again…
Other employees similarly advocated providing contextual information about media sources in search results, and the company later did so with a short-lived fact check at the end of 2017.
Not only did the fact-check feature target conservative outlets almost exclusively, it was also blatantly wrong. Google’s fact check repeatedly attributed false claims to those outlets, even though they demonstrably never made those claims.
Google pulled the faulty fact-check program in January, crediting TheDCNF’s investigation for the decision.
A Google spokeswoman said that the conversation did not lead to manipulation of search results for political purposes.
Online Speech Platforms
Reason: Expect More Conservative Purges on Social Media If Republicans Target Section 230
By Elizabeth Nolan Brown
Bipartisan lust to destroy the internet is growing, with calls from both Republicans and Democrats to carve out exceptions to or just destroy the law that lets most of the U.S. internet today exist as it does…
As the current attorney general of Missouri, and one of the cadre of attorneys general obsessed with taking down Backpage-an unconstitutional passion project of state prosecutors’ that centered on the meaning and application of Section 230-Hawley certainly should know how the statute works…
Nothing in Section 230 requires that an entity maintain “a true diversity of political discourse,” whatever that means. This is not like the old equal-time rule for broadcast networks. You can be a web publication with an explicitly ideological slant, a social platform with idiosyncratic policies on permitted speech, or a private messageboard for anarchist Amish redheads to discuss the Cubs and Section 230 doesn’t care…
The law explicitly states that a service’s efforts to filter out illegal or undesirable content do not open it to liability…
Hawley has long railed against Section 230 in his attempts to get a piece of Backpage’s profits for Missouri. For others, weakening or demolishing Section 230 could let them more easily censor publications they don’t like, or make point about gun control, or regulate “hate speech,” or any number of things…
Assertions from Republicans that Section 230 stands in the way of them getting more fair online treatment are especially ridiculous. Weakening 230 would require platforms and providers to crack down more tightly on all manners of speech to avoid liability. If conservatives think they’re unfairly targeted for Twitter suspensions and Facebook jail now, just wait until these sites are facing 50 angry state attorneys general and millions in civil fines if they make a wrong call. Erring on the side of more speech doesn’t stand a chance.
The States
Albany Times Union: Momentum for ‘Fair Elections Act’ puts pressure on Assembly
By Rachel Silberstein and Chris Bragg
Assembly Elections Committee Chairman Charles Lavine, who was appointed to the post in 2017, acknowledged that many rank-and-file lawmakers are wary of the onerous fines that have been levied by New York City’s enforcement body.
“We all know that the practical problems that candidates who have to deal with the CFB encounter,” Lavine said. “We are going to have to rely on the expertise of the most knowledgeable people in the field and try to craft a system that really is manageable and does not put anyone at at a disadvantage.”…
Democratic Assembly members representing politically divided districts in the suburbs and exurbs of New York City say they are wary of the complexities that a publicly financed electoral system would present.
“There has not been extensive conversation about it like there has been on LLC loophole and early voting and other election reforms,” said Assemblyman David Buchwald, a Democrat from White Plains…
Gary Pretlow, a veteran Democratic assemblyman from Mount Vernon, is in favor of lowering donation limits and closing the LLC loophole. But Pretlow opposes publicly funded elections and has voted against them in the past. He says they waste tens-of-millions of dollars in New York City, and cost three or four times that amount statewide.
Pretlow argued that incumbents in New York City nearly always win-reelection anyway, despite the public financing of elections there, and that it would a “massive undertaking” to set up offices around the state to regulate and enforce the new law. He also noted the burdens imposed on New York City candidates by the lengthy post-election audits of campaign spending by the New York City Campaign Finance Board, which can take years.
“Two years after the election, you can be fined $10,000 – but because it’s two years after the election, you don’t have any money left,” Pretlow said.
Daily Mining Gazette: State bill to hide non-profit donors clears another state senate hurdle
By Joshua Vissers
Republican Senator Mike Shirkey’s senate bill 1176, known as the Personal Privacy Protection Act if passed, has been recommended to the committee of the whole for review and possible amendment.
The bill would prevent any government agency from obtaining or revealing the names of donors to any 501(c) registered organization…
Donations directly to election campaigns are reported to the State and made public…
The new bill contains exceptions to the identity protection for court warrants, and for discovery during litigation. However, it requires the requestor to obtain a protective order keeping the information away from anyone not directly involved in the litigation.
