In the News
New Jersey Star-Ledger: Trump administration wants to put a price on freedom of speech. Soon you’ll have to pay a fee to protest at the National Mall.
By Linda Stamato
[T]he National Park Service has surfaced a proposal that would effectively suppress protest on the Mall. This is the space where public protest is especially robust given that D.C. is the seat of federal power, and, as Allen Dickerson, Legal Director of the Institute for Free Speech, observes: “It is the stage upon which Americans have long exercised their rights, guaranteed by the Constitution, to freely assemble and petition their representative government.”
Indeed, this is the very space where Martin Luther King Jr. delivered his “I have a dream” speech in 1963. The Mall is also the place where some 700-plus demonstrations took place last year…
The Park’s proposed regulation, citing costs, would curtail demonstrations on the Mall and other staging grounds for protests in Washington, including Lafayette Square across from the White House and the Pennsylvania Avenue sidewalks in front of the Trump International Hotel. The period for comments on the rule ended in October so final rules could surface any day now. Access to comments can be found here at this link.
Park Service rules governing rallies and marches have been forged through decades of court cases, including lawsuits that successfully challenged various government restrictions. The new proposal would rewrite many of those rules, and, if enacted, would face certain litigation…
This policy, if implemented, would not only amount to the sale of a public asset, it’s an action that may violate the U.S. Constitution. And, it flies in the face of history and tradition, and, in short, the needs of a democratic people.
Protecting public spaces and allowing full access to them reflects the community’s commitment to democracy. These spaces must remain free to those who wish to protest no matter what the message.
Fox News: Trump campaign finance violation would ‘certainly’ be impeachable offense, top Dem says
By Gregg Re
The top Democrat expected to lead the House Judiciary Committee next month claimed on Sunday that if President Trump broke campaign finance laws by arranging hush-money payments to mistresses, he would have committed “impeachable offenses … in the service of fraudulently obtaining the office.” …
“They would be impeachable offenses,” [Rep. Jerry Nadler, D-N.Y.] told host Jake Tapper. “Whether they are important enough to justify an impeachment is a different question, but certainly they’d be impeachable offenses…” …
In the August plea, former Trump attorney Michael Cohen admitted to violating federal campaign finance laws by arranging hush-money payments to porn star Stormy Daniels and Playboy model Karen McDougal in the weeks leading up to the election “in coordination with and at the direction” of then-candidate Trump…
But legal experts were split on the significance of the plea for Trump, because campaign finance laws are notoriously murky, and Cohen’s plea does not necessarily indicate that prosecutors could have successfully prosecuted a campaign finance case against Cohen or Trump.
Cohen was also accused of violating numerous other banking and fraud laws, and could have pleaded guilty to the campaign finance charge to lighten his potential sentence, experts said.
And a former chairman for the Federal Election Commission (FEC) has said that campaign finance laws are often an unfair lose-lose proposition for candidates, which is why they are often pursued as civil matters, rather than criminal ones.
“Suppose Trump had used campaign funds to pay off these women,” former FEC chairman Bradley Smith wrote in The Washington Post. “Does anyone much doubt that many of the same people now after Trump for using corporate funds, and not reporting them as campaign expenditures, would then be claiming that Trump had illegally diverted campaign funds to ‘personal use?'”
Slate: Trump’s “Obama Did It Too” Legal Defense Does Not Hold an Ounce of Water
By Richard L. Hasen
It is true that a campaign need not report a candidate’s purely personal expenses. So how to draw the line? As I explained in an August column, the question is whether making the payments was motivated by a desire to help the campaign rather than to protect his personal life:
Two important Republican election lawyers have attempted to set a high bar for how to tell when a payment in this context might be campaign-related rather than personal. Charlie Spies told the [Wall Street] Journal in February that the payment to Daniels was “an expense that would exist irrespective of whether Mr. Trump was a candidate and therefore should not be treated as a campaign contribution.” And former Federal Election Commission chair Brad Smith wrote in an April op-ed in the Journal that “FEC regulations explain that the campaign cannot pay expenses that would exist ‘irrespective’ of the campaign, even if it might help win election. At the same time, obligations that would not exist ‘but for’ the campaign must be paid from campaign funds.”
Even under these tough standards for what counts as campaign-related, the proof of the timing would be damning for Cohen…
Cohen’s guilty plea alone does not demonstrate that Donald Trump committed a felony. To be criminally liable, it must be proven that he willfully violated campaign finance laws. The timing so close to the election, the structuring of the secret payments, the use of a sham LLC all suggest evidence of guilt. We don’t know what evidence federal prosecutors have of Trump’s direction and coordination of this activity, but that evidence would likely add to the case of Trump’s guilt.
LifeZette: Rand Paul Raises Doubts About the Campaign Finance Violation Against Trump
By Connor D. Wolf
Sen. Rand Paul (R-Ky.) on “The Laura Ingraham Show” on Tuesday expressed doubt about the campaign finance violation being leveled against President Donald Trump by pointing to the case of former Sen. John Edwards (D-N.C.)…
“I think it has been a big mistake for decades now that we actually criminalized this stuff,” Paul told host Laura Ingraham on Tuesday.
“And the one particular issue we’re looking at now, whether paying someone’s mistress is a campaign finance violation – the FEC actually looked at this with John Edwards and ruled it wasn’t a campaign finance violation.” …
“My advice to the president would be to ask the FEC for a ruling,” Paul said.
“I would just ask for a ruling. John Edwards didn’t even get a fine, I don’t think, on this. They just ruled it wasn’t a campaign finance violation.” …
“Here is someone the president ought to hire,” Paul said. “Brad Smith used to be the head of the FEC. He’s a brilliant attorney. He works on the First Amendment. He’s the type of guy the president would want on his team because basically, the information I have about the whole John Edwards case is from an article by Brad Smith.”
New from the Institute for Free Speech
S. J. Res. 64 Seeks to Undo IRS Protections for Privacy in Association
As a result of the IRS’s guidance, most nonprofit groups no longer have to report the private information of their significant donors – their names and home addresses – to the agency on Schedule B of their annual IRS Form 990 returns. Under the policy, 501(c)(3) charities, which receive tax-deductible gifts, are still required to report this information. Other nonprofits are required to keep these records in the event of an audit. Public copies of these returns by all nonprofits will still show the amounts given by each major donor. The new policy, known as Revenue Procedure 2018-38, was announced on July 16, 2018…
The IRS’s new policy takes effect for tax years ending on or after December 31, 2018. But the Congressional Review Act (CRA) set up a fast-track procedure for Congress to review and reject agency rules. Senators John Tester (D-MT) and Ron Wyden (D-OR) introduced a resolution of disapproval (S. J. Res. 64) in September to nullify the rule. In October, they filed a petition that discharged their resolution from the Senate Finance Committee. The Government Accountability Office recently indicated that this IRS revenue procedure is subject to the CRA. Unlike most legislation, the Senate resolution is not subject to a filibuster or amendment…
The IRS’s recently adopted reform is a boon to the First Amendment and to the right to privacy of association. All Americans should be free to support the causes of their choice without fear of harassment or intimidation – including from a powerful government agency with the ability to audit taxpayers. The IRS admits that it neither used nor needed the donor information it collected when enforcing the tax laws. As a result, the IRS’s decision to eliminate this burden for most nonprofits saves the agency from leaking or misusing Americans’ private information while simultaneously improving public confidence in the enforcement of the tax laws.
The Courts
Boston Globe: Judge in Mass. says secretly recording officials, including police, is constitutionally protected
By Danny McDonald
Ruling on a pair of challenges to Massachusetts’ wiretap statute, US District Court Judge Patti Saris held that state law “may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.”
In one of the cases, the American Civil Liberties Union of Massachusetts represented two Boston activists – K. Eric Martin and René Pérez – who were afraid to secretly record police due to a “credible fear of arrest and prosecution under the state’s wiretap statute,” the ACLU said…
“This ruling reaffirms that the fundamental right to record police officers does not disappear when a recording device is covered,” said Carol Rose, executive director of the ACLU of Massachusetts.
The state’s wiretap law has made secret audio recordings of public interactions a crime, and “has been used to arrest and prosecute people for secretly recording police officers performing their duties in public,” according to the ACLU…
Saris also ruled in favor of Project Veritas, a group founded by James O’Keefe, a conservative activist who has made headlines for releasing covert recordings meant to show media bias.
In a statement, O’Keefe said he welcomed the ruling.
“PVA v. Conley becomes the first case in United States history to hold that secretly recording government officials is protected by the First Amendment,” he said in a statement…
The group would like to secretly record government officials in Massachusetts, according to court documents.
Congress
Politico: Cornyn: Senate to vote on ‘dark money’ resolution
By Marianne Levine
The Senate will vote Tuesday on a resolution to block a Treasury Department policy that reduces the donor-disclosure requirements for nonprofits, according to Senate Majority Whip John Cornyn (R-Texas).
“Tuesday I’m hearing the [Congressional Review Act] on the … identified-donors thing,” Cornyn said on Monday.
Introduced in September by Sens. Jon Tester (D-Mont.) and Ron Wyden (D-Ore.), the resolution overturns a Treasury Department change to Schedule B of IRS Form 990, which provides the public financial information about a nonprofit organization. The policy change allows political nonprofits to withhold names of major donors from the Internal Revenue Service.
Senate Republicans can lose only one vote on the Congressional Review Act resolution.
In a statement in September, Tester described the resolution as legislation to “protect our democracy and hold special interests accountable with transparency.”
Office of U.S. Senate Majority Leader Mitch McConnell: Protecting the Private Information of American Citizens from the IRS
U.S. Senate Majority Leader Mitch McConnell (R-KY) delivered the following remarks today on the Senate regarding an attempt by Senate Democrats to undo an important Treasury Department privacy reform:
“The Senate will soon vote on an attempt by some of our Democratic colleagues to unwind an important privacy reform the Treasury Department enacted earlier this year. We need to stand up for privacy, stand up for the First Amendment, and reject the Democrats’ resolution. The question at hand is whether the IRS should have special power to demand that certain nonprofit organizations hand over lists of their contributors. This raises the question: Why? Why should the IRS have this private information?
“For accounting purposes? No. The regulation requires tax-exempt nonprofits to maintain books, but individuals’ donations are not tax-deductible, so there aren’t accounting reasons why the IRS would need to track donors. For transparency purposes? No. The personal information in question is not part of any public inspection requirement. In fact, the IRS is required to redact this information when releasing a nonprofit’s public tax filings. The guidance does nothing to affect the information that is publicly available…
“That’s today. What about tomorrow? Forty-five Senate Democrats are already signed on to a more sweeping piece of legislation, known as the DISCLOSE Act, which would amplify and expand this chilling effect in numerous other ways. For one thing, this bill would cut out the middleman of the leaky IRS and enable direct ideological harassment increasing disclosure of this private information straight to the public. That’s just one example. It would also give the FEC more power to regulate Americans’ speech about important issues and many public officials.”
Americans for Tax Reform: Senate Should Reject Senate Dems Schedule B CRA
By Alex Hendrie
Senate Democrats are expected to soon force a vote on S.J.Res.64, a congressional resolution of disapproval of the Trump administration rule rolling back the Schedule B disclosure requirements for non-profits.
ATR urges all Senators to vote “NO” on this resolution.
The Trump admin decision to roll back reporting requirements for the Schedule B form earlier this year was a major win for free speech and efforts to protect non-profits. The rule also in no way limited or curbed transparency in politics as the same information on non-profits will continue to be available to the public.
S.J.Res 64 would undo this progress and again chill political free speech…
In fact, the Schedule B form has recently become a tool for unelected bureaucrats to chill political speech.
Under the Obama administration, there were several cases where agency officials leaked the sensitive information contained on Schedule B forms for political purposes, such as leaking of the schedule B belonging to the National Organization for Marriage.
The IRS record of protecting taxpayers is poor in this space – a 2016 report by the Government Accountability Office warned that the IRS may still be unfairly targeting non-profits “based on an organization’s religious, educational, political, or other views.”
The Trump rule ending the collection of Schedule B forms is a step in the right direction toward protecting free speech in a way that also upholds transparency in the political process. Senators should stand with this rule and vote NO on S.J.Res 64.
By Jillian D’Onfro
Tuesday’s hearing was titled “Transparency & Accountability: Examining Google and its Data Collection, Use, and Filtering Practices” and many representatives posed questions on whether or not Google’s search results were biased against conservative points of view.
This has been a consistent narrative over the past year, as Republican lawmakers – and even President Donald Trump – have accused Google and other tech platforms of suppressing conservative voices. Pichai echoed Google’s previous denials, and repeatedly responded that Google’s search algorithms did not favor any particular ideology, but instead surfaced the most relevant results, which could be affected by the time of a users’ search, as well as other factors like their location.
One particularly fiery take against that line of questioning came from Rep. Ted Lieu (D-Ca.) who said that the queries on conservative bias “wasted time” given that private, profit-seeking companies like Google are protected by the First Amendment. Even if Google was biased, he said, that would be its right. However, he also used sample Google searches to show that Google would turn up positive search results about Republicans and negative search results about Democrats…
Hate speech and misinformation were another thorny topic that came up several times. Rep Jamie Raskin (D-Md.) in particular cited YouTube videos promoting a conspiracy theory that Hillary Clinton and other politicians and celebrities were drinking children’s blood.
“We are constantly undertaking efforts to deal with misinformation,” Pichai said, adding that Google is looking to do more.
Disclosure
The Federalist: In Defense Of ‘Dark Money’
By David Harsanyi
Although the term “dark money” sounds ominous and unsavory, it’s just a misleading neologism adopted by activist journalists to make completely legal contributions to political causes they disagree with sound creepy and illegitimate. It’s become dogma among journalists to treat “dark money” as an attack on democracy. It’s not.
The use of the phrase “dark money” reminds me of words like “loophole,” which, in its new political parlance, means “any act, although wholly legitimate, that Democrats have yet to figure out how to regulate or tax.” It’s a rhetorical shortcut meant to intimate wrongdoing…
Progressive groups have become quite adept at destroying the lives of those who back causes they dislike. The mob coming after Mozilla CEO Brendan Eich’s job comes to mind, but he’s not alone. The threat of such attacks is intimidating enough.
“Anonymity is a shield from the tyranny of the majority,” the 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission famously noted, it “exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society.”…
Now, it’s true that the massive amounts of money spent on campaigns and partisan advocacy reflects the unfortunate reality of a far-too powerful and pervasive government. So the last thing we need to do is expand its power to regulate more speech. The fact that groups of Americans are compelled to report to the IRS before engaging in political activity is bad enough. And those who argue that anonymous speech is an attack on “democracy” only aim to inhibit and control the political speech they don’t like.
Independent Groups
New York Times: Potent Weapon or Poison Pill? Super PACs Pose Quandary for 2020 Democrats
By Shane Goldmacher
It is one of the most potent and feared weapons in the arsenal of modern American politics: the super PAC.
But as three dozen Democrats ponder presidential runs in 2020 and begin to design their campaign infrastructures, some leading names beyond Senator Bernie Sanders are expected to forgo or disavow super PACs – and with it the ability for allies to raise unlimited sums from wealthy backers – in hopes that grass-roots donors and progressive activists would reward them more handsomely in the primary for rejecting such funds…
Mark Longabaugh, a senior adviser to Mr. Sanders, said the Vermont senator would disavow any super PAC support if he runs, as he did in 2016. Mr. Longabaugh also cautioned that super PACs could “boomerang” against those who have them: “It will be an issue in the campaign.”
“You can’t on one hand oppose Citizens United and the corrupting influence of corrupting money,” Mr. Longabaugh said of the court decision that helped pave the way for super PACs, “and on the other hand take that money.”
The 2016 Republican primary showed just how fast money could flow into super PACs – in increments as large as $10 million. In that campaign, the super PACs aligned with Mr. Bush, Marco Rubio, Chris Christie, Carly Fiorina, Mike Huckabee, Scott Walker, Bobby Jindal and Rick Perry all outraised the actual candidates themselves.
Those candidates had something else in common: they all lost.
