In the News
National Review: The First Amendment Is Lucky to Have Mitch McConnell
By Bradley A. Smith
Senate Republican leader Mitch McConnell hammered the first nail into the coffin of the draconian S. 1 legislation on Wednesday, announcing that the Democrats’ 800-plus-page rewrite of voting, speech, and ethics laws would not pass the Senate. With every Republican plus Democrat Joe Manchin opposed to the legislation, the bill increasingly appears as good as dead. Its defeat would be a major victory for the First Amendment and another credit in McConnell’s legacy as the Senate’s premier defender of free political speech.
Surprisingly few elected officials are willing to come to the defense of campaigns and other organized efforts to effect change. Americans celebrate their freedoms to speak and organize into groups, but once an organization achieves success, support for its rights tends to give way to concerns about “influence.” It’s rare to find politicians who support equally the freedom to speak of the NRA and the Brady Campaign, the League of Conservation Voters and the Chamber of Commerce, or pro-life groups and Planned Parenthood.
For over a quarter century, Mitch McConnell has stood as the Senate’s most consistent, articulate, and dogged defender of the First Amendment rights these organizations rely on…
S. 1 and its House counterpart, H.R. 1, aim to roll back these advances in one fell swoop.
Supreme Court
Courthouse News: Unanimous High Court Rules Against IRS in Tax Reporting Dispute
By Brad Kutner
A tax law known as the Anti-Injunction Act does not preclude companies from challenging IRS reporting requirements laid out in that law before they are enforced, the U.S. Supreme Court ruled unanimously Monday.
CIC Services, a consulting firm that specializes in captive insurance companies, sued the IRS after the agency issued new reporting requirements for certain types of transactions related to that industry. A provision known as rule 2016-66 makes specific insurance micro-transactions reportable to the feds, who can issue notices to companies forcing them to provide more information.
The 2016 regulation comes with the threat of financial penalties for violating the new mandate, which the company contends amounts to a violation of the Administrative Procedure Act, in part based on the lack of a public comment period.
The district court ruled the challenge was precluded by the Anti-Injunction Act, or, AIA, because the penalty for not complying with the reporting requirement qualifies as a tax. The Sixth Circuit affirmed and CIC appealed to the Supreme Court, which agreed to hear the case last year.
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the petitioner in the case.]
DOJ
The Hill: Trump DOJ subpoenaed Twitter for identity behind Nunes parody account
By Harper Neidig
The Trump administration subpoenaed Twitter for information on who was operating an account parodying Rep. Devin Nunes (R-Calif.), a close ally of the former president, according to court documents unsealed on Monday.
A federal judge unsealed a motion from Twitter filed on March 10 to quash the subpoena that was issued in November. In the filing, Twitter argued it was concerned the government was aiding Nunes’s legal efforts to attack and unmask his online critics and said the subpoena violated the First Amendment.
“It appears to Twitter that the Subpoena may be related to Congressman Devin Nunes’s repeated efforts to unmask individuals behind parody accounts critical of him,” the motion reads. “His efforts to suppress critical speech are as well-publicized as they are unsuccessful.”
The subpoena sought identifying information from Twitter about the account @NunesAlt. There is little public information about the court proceedings around the subpoena. It’s not clear whether Twitter ever complied with the demand or if it was ultimately quashed by a federal judge.
It’s also unclear if the Biden administration’s Justice Department stood by the subpoena after Trump left office. A Justice Department spokeswoman did not immediately respond when asked for comment on Monday.
According to the unsealed motion, the subpoena was issued along with a gag order prohibiting Twitter from revealing or talking about the document.
Axios: DOJ signals scrutiny of popular fundraising gimmick
By Lachlan Markay
A little-noticed line in a recent criminal filing suggests federal prosecutors consider a popular political fundraising tactic to be legally questionable.
Fundraisers often boast of “5x” or other contribution matches to coax small-dollar donations. The Justice Department indicated in a court filing Monday this could amount to “material misrepresentations” if, as critics often contend, there’s no evidence the match ever occurs.
Congress
The Hill: GOP resistance to campaign finance reforms shows disregard for US voters
By Daniel Weiner
At a Senate hearing last week on the For the People Act, the landmark democracy reform bill that passed the House in March and is now pending in the Senate, opponents of the bill repeatedly attacked provisions that would overhaul the Federal Election Commission, our nation’s troubled campaign finance regulator. The FEC reform provisions drew more ire than any of the bill’s other campaign finance reforms, with Senators predicting that the agency would become a “partisan weapon,” to quote Sen. Ted Cruz (R-Texas) that Democrats would use to persecute Republicans.
In reality, the bill’s changes are fairly modest, and unlikely to result in the commission being weaponized against either party. But they will make it a more functional body capable of enforcing the law as written. For defenders of the status quo like Cruz and Senate Minority Leader Mitch McConnell (who has been attacking these provisions of the bill for years), any effort to have the FEC actually fulfill its statutory mission to restrain the role of money in our political system is unacceptable.
Their views might have salience “under the Dome” of the Capitol, but they are out of step with the American people.
By any ordinary measure, the evenly-divided FEC — where I worked as a senior staffer to one of the Democratic commissioners — is not doing its job.
FEC
New York Post: Watchdog calls for probe into Swiss billionaire’s US political spending
By Melissa Klein
A watchdog group is calling for an investigation into Swiss billionaire Hansjörg Wyss’ influence on US elections, according to a complaint filed with the Federal Elections Commission.
The complaint by Americans for Public Trust says there is reason to believe “Mr. Wyss indirectly funded federal electoral advocacy through his nonprofit organizations, the Wyss Foundation and the Berger Action Fund. The intended recipient of these funds was ultimately a variety of organizations whose primary purpose is to engage in electoral advocacy.”
It notes that “the law prohibits foreign nationals from making contributions to political committees whether directly or indirectly,” according to a copy of the complaint, which was filed Friday.
Free Speech
The Atlantic: ‘They Learn to Parrot What They Know They’re Supposed to Say’
By Conor Friedersdorf
Erin McLaughlin, an educator in Pennsylvania, believes that, in school and in life, people should study what others think and why. But in her estimation, many educational institutions that purport to value diversity and inclusion fail to treat viewpoint diversity—which she defines as “the recognition that nobody’s worldview is complete, and that no one marker of identity actually defines the way we see the world around us”—as a vital part of civic education. Her mission: to persuade educational institutions to put viewpoint diversity at the center of their cultures and curricula.
Spectator: Prince Harry: the First Amendment is ‘bonkers’
By Cockburn
Much has been written on both sides of the Pond about Prince Harry’s Thursday appearance on Hollywood actor Dax Shepard’s Armchair Expert podcast…
In March Harry was given a role at international nonprofit the Aspen Institute, where he serves on the Orwellian-sounding ‘Commission on Information Disorder’, working on a six-month study on how inaccurate information spreads across the country. And it was that subject of misinformation the prince chose to turn his guns on in the interview, criticizing the free speech provisions in the Bill of Rights, telling Shepard:
‘I’ve got so much I want to say about the First Amendment as I sort of understand it, but it is bonkers. I don’t want to start going down the First Amendment route because that’s a huge subject and one which I don’t understand because I’ve only been here a short time. But, you can find a loophole in anything. You can capitalize or exploit what’s not said rather than uphold what is said.’
Online Speech Platforms
Washington Post: Chinese businessman with links to Steve Bannon is driving force for a sprawling disinformation network, researchers say
By Jeanne Whalen, Craig Timberg, and Eva Dou
A sprawling online network tied to Chinese businessman Guo Wengui has become a potent platform for disinformation in the United States, attacking the safety of coronavirus vaccines, promoting false election-fraud claims and spreading baseless QAnon conspiracies, according to research published Monday by the network analysis company Graphika.
Washington Post: Social app Parler is cracking down on hate speech – but only on iPhones
By Kevin Randall
When social media network Parler came back to life on Apple’s App Store Monday, it was designed to be a less offensive version than what users are able to see elsewhere.
Posts that are labeled “hate” by Parler’s new artificial intelligence moderation system won’t be visible on iPhones. There’s a different standard for people who look at Parler on other smartphones or on the Web: They will be able to see posts marked as “hate,” which includes racial slurs, by clicking through to see them.
Parler has resisted placing limits on what appears on its social network, and its leaders have equated blocking hate speech to totalitarian censorship, according to Amy Peikoff, chief policy officer. But Peikoff, who leads Parler’s content moderation, says she recognizes the importance of the Apple relationship to Parler’s future and seeks to find common ground between them.
“At Parler we embrace the entire First Amendment meaning freedom of expression and conscience are protected,” Peikoff said. “We permit a maximum amount of legally protected speech.”
Candidates and Campaigns
Politico: California recall candidates use auto-donation tactic Trump made famous
By Jeremy B. White
California recall candidates are charging donors recurring campaign contributions through a tactic made famous by former President Donald Trump — and condemned by federal election officials.
In another break-the-bank campaign year, Republican contenders Caitlyn Jenner and Doug Ose have preset their donation pages to charge repeat contributions every month as well as a “May Money Pledge” bonus contribution. Gov. Gavin Newsom’s 2022 re-election page at one point this month defaulted to a recurring donation as well, though it no longer does.
Consumer advocates and campaign finance officials say the tactic misleads donors into giving more money than they intend because they must uncheck boxes to ensure their accounts are not regularly charged. Automatic deductions can be difficult to stop — let alone reverse — once they begin.
The Federal Election Commission recently urged Congress on a bipartisan vote to alter the law so campaigns must seek the “opt-in” consent of donors to draw monthly donations, arguing that many donors do not realize when monthly boxes are pre-checked and “are surprised by the already completed transactions appearing on account statements.”
The States
Ohio Capital Journal: ‘Anti-Corruption Act’ would target dark money spending in Ohio
By Tyler Buchanan
Should nonprofit organizations that spend money on Ohio elections be forced to publicly disclose who funds them?
Some lawmakers say yes and are trying once again to change the state’s campaign finance law in an effort to make political spending more transparent.
State Reps. Allison Russo, D-Upper Arlington, and Bride Rose Sweeney, D-Cleveland, have reintroduced a bill nicknamed the “Ohio Anti-Corruption Act.” Two-dozen Democrats in the Ohio House of Representatives have co-sponsored the bill.
State law requires political candidates to publicly report donations to their campaigns. Organizations such as political action committees (PACs) are also required to report who funds them and what causes the PAC spends money on…
Nonprofit 501(c)(4) organizations, known as “social welfare groups,” are not required to report their donors.
Los Angeles Times: Donors gave millions to Garcetti nonprofit but kept their identities secret, Times analysis finds
By Dakota Smith and Melody Gutierrez
After Los Angeles Mayor Eric Garcetti took office in 2013, he helped launch a charity fund that allows donors to support diverse programs from environmental initiatives to youth employment.
Since then, Garcetti has reported raising more than $60 million from corporations, foundations, and individuals for the nonprofit Mayor’s Fund for Los Angeles. A Times data analysis found that at least $3.8 million of that total came from contributors who gave through accounts that mask their identity, a practice that alarms ethics watchdogs who say such donations skirt a state law intended to make those donors’ names public.
These contributors used donor-advised funds, a type of charitable giving account offered by some nonprofit foundations and for-profit investment firms that provide a generous tax deduction and, when requested, anonymity.
WMUR: NH Senate committee, in 3-2 vote, recommends passage of amended state campaign finance reform bill
By John DiStaso
The state Senate Election Law and Municipal Affairs Committee voted 3-2 along party lines Monday to recommend the full Senate pass legislation to revamp the state’s campaign finance system…
House Bill 263 as it passed the House would end the state’s voluntary campaign spending limit program, end pre-filing campaign contributions that are currently at a maximum of $5,000 per donor and instead adjust upward the post-filing primary campaign contribution limit and general election contribution limit from $1,000 to $3,500 per donor for each election.
Committee chair Sen. James Gray sponsored an amendment that also would end the voluntary campaign spending limit program and pre-filing campaign contributions, but it would set the individual campaign contribution limits at $5,000 per donor for the primary and $5,000 per donor for the general election.
The bill would also increase from $5,000 to $10,000 the limit on individual contributions to non-candidate political committees. The Senate committee did not change that provision.
The original bill increased the threshold for a political committee to file itemized statements of receipts and expenditures with the Secretary of State’s Office from $500 to $1,500 in receipts or expenditures.
