In the News
Washington Post (Volokh): ‘Something politically incestuous’
By Bradley A. Smith
Government efforts to regulate campaigns, as apart from elections, suffer from the inability to develop meaningful or even non-arbitrary, judicially manageable standards. However, there is a further, more fundamental reason to be concerned about legislative efforts to regulate campaigns — they inexorably lead to the government placing its thumb on the scale to advantage certain candidates and interests.
Candidates enter campaigns with a wide variety of advantages and disadvantages. The same is true of political parties, and the various interests, citizen organizations and even viewpoints that will play a part in the campaign. Government regulation of campaigns inherently involves choices that benefit or harm particular types of candidates and interests, and as such they are inherently open to manipulation by the government itself.
One obvious group that may be routinely favored by campaign regulation is incumbents. Justice Scalia has been particularly skeptical of incumbent self-dealing over the years. As he wrote in dissent in Austin v. Michigan State Chamber of Commerce, “[t]he incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition.”
IRS
Wall Street Journal: Opinion: Should Congress Lock Up Lois Lerner?
Attorney Cleta Mitchell on new evidence concerning the former IRS official’s involvement in targeting conservative groups and her unusual cooperation with a House Democrat.
Wall Street Journal: The IRS Scandal Comes Into Focus
By Kimberley Strassel
Method: The general prohibition on releasing taxpayer information has meant that—up until Ways and Means voted Wednesday to release this info—it was impossible to know what precise actions Ms. Lerner had taken against whom. We now know that she took it upon herself to track down the status of Crossroads, to give grief to an IRS unit for not having audited it, to apparently direct another unit to deny it tax-exempt status, and to try to influence the appeals process.
We know, too, that Ms. Lerner did some of this in contravention of IRS policy, for instance involving herself in an audit decision that was supposed to be left to a special review committee. We have the story of a powerful bureaucrat targeting an organization and circumventing IRS safeguards against political or personal bias. That ought to mortify all members of Congress. That Democrats seem not to care gets to another point.
Aftermath: Democrats quickly dropped any feigned outrage over IRS targeting and circled the wagons around the agency. Why? The targeting was outrageous, the public was fuming, and nobody likes the IRS. Joining with Republicans would have only been right and popular.
USA Today: House panel finds ex-IRS official Lerner in contempt
By Gregory Korte
“The frustration is, is that the American people have not been told the truth about what happened at the IRS,” Boehner said Thursday. “We’ve been going through all of these hearings, having to hold people in contempt, because they’ve made it impossible to get to the documents. They have not been forthcoming. They owe the American people the truth. … And the administration refuses to tell them the truth.”
If approved by the full House, the contempt citation still would have to be prosecuted by the Justice Department, which is already investigating Lerner and the IRS. The House could also send its sergeant-at-arms to arrest Lerner and bring her to the floor of the House for a trial, but Congress hasn’t used that “inherent contempt” power since 1934.
Washington Examiner: Examiner Editorial: Lois Lerner could go to jail in contempt clash
Editorial
This may come as a shock to Lois Lerner, but the House of Representatives has the authority to jail her unless she changes her mind about refusing to answer questions about her role in the IRS scandal. Essentially, what is required for that to happen is for a House majority to vote for a motion holding her in contempt and House Speaker John Boehner to then direct the House sergeant at arms to arrest and confine her. Under the Constitution, the House can do that under its “inherent contempt” authority, which was initially exercised in 1795 during the First Congress and on multiple occasions thereafter. Lerner could be held until January 2015 when a new Congress is seated, which could issue another subpoena and throw her in the clink again if she still balks at testifying.
Pro Publica: What Newly Released Docs Tell Us About the IRS and How It Handles Dark Money Groups
By Kim Barker and Theodoric Meyer
In an email two days later, Lerner wrote that she had read through allegations from campaign finance watchdogs about Crossroads, adding that they “were really damning.”
By Jan. 9, 2013, the IRS was drafting a denial letter to Crossroads, the documents show. There was no more significant action until May 2, 2013, when a call was made to discuss the “draft denial letter.”
Then on May 8, 2013, documents indicate that the IRS was also looking at “the draft denial of a similar case.”
Reason: IRS Employees Don’t Just Target Political Enemies, They Also Support Friends, Says Federal Watchdog
By J.D. Tuccille
We already know that the Internal Revenue Service (IRS) has a long history of wielding its awesome clout against political opponents of sitting presidents, powerful members of Congress, and the tax collectors themselves, but who are IRS employees for? Well, President Obama seems to tickle their fancy. According to the U.S. Office of Special Counsel, which enforces the Hatch Act limiting political activity by federal employees, IRS employees are “alleged to have engaged in partisan political activity on duty and in the federal workplace.”
National Review: Issa Accuses Cummings of Colluding with the IRS | National Review Online
By Eliana Johnson
True the Vote’s lawyer, Cleta Mitchell, raised the prospect that the minority staff had exchanged information with the IRS at a hearing in February. “We want to get to the bottom of how these coincidences happened,” Mitchell said, “and we’re trying to figure out whether any — if there was any staff on this committee that might have been involved in putting True the Vote on the radar screen of some of these federal agencies.” Cummings said in response that Mitchell’s tacit allegation was “absolutely incorrect and not true.”
Issa on Wednesday seized on the similarities between the two letters, though they were issued before Cummings’s staff contacted the IRS for additional information about True the Vote in January 2013. “Although you have previously denied that your staff made inquiries to the IRS about conservative organization True the Vote that may have led to additional agency scrutiny, communication records between your staff and IRS officials – which you did not disclose to Majority Members or staff – indicates otherwise,” Issa said. “As the Committee is scheduled to consider a resolution holding Ms. Lerner, a participant in responding to your communications that you failed to disclose, in contempt of Congress, you have an obligation to fully explain your staff’s undisclosed contacts with the IRS.”
SCOTUS/Judiciary
The Hill: Dems seek to demonize justices
By Alexander Bolton
Senate Democrats and liberal groups are mounting a pressure campaign against the Supreme Court, hoping to influence future decisions by blasting conservative justices for alleged political bias.
The effort from the left also portrays the high court as an instrument rigged to help the wealthy, and is intended to energize Democratic voters and increase turnout in the midterm elections.
Some legal experts see the effort as akin to basketball or soccer players “working the ref” in a high-stakes game.
More Soft Money Hard Law: The Appearance of Corruption in the Aftermath of McCutcheon
By Bob Bauer
In his dissent in McCutcheon, Justice Breyer certainly agrees with Rick’s criticism of the plurality’s reading of “actual corruption” and also suggests in his dissent that the appearance of corruption actually “makes matters worse.” McCutcheon v. Fed. Election Comm’n, No. 12-536, slip op. at 7 (2014) (Breyer, J., dissenting). On this view, the appearances problem cuts to the heart of—or cuts the heart out of—public confidence in the electoral process. An electorate convinced that government is bought may give up on it, putting at risk the legitimacy of democratic institutions.
Justice Breyer acknowledges that the courts have found no evidence of quid pro quo corruption. Id. at 10. So without it, corruption defined as “undue influence” (and even more generally through the lens of “active liberty” that Breyer champions) must do the work of justifying regulation. Justice Breyer has so far lost his argument for building this undue influence into the standard for actual corruption; Rick would revive it in the guise of the appearance of corruption.
The Hill: History to impeach Roberts
By Brent Budowsky
Roberts and his four conservative Republican brethren will ultimately be impeached by historians who will condemn, and future courts that will reverse, politically illegitimate and constitutionally deformed rulings that would turn America into a constitutional oligarchy.
State and Local
Minnesota –– Star Tribune: Minnesota’s limits on campaign donations to be challenged
By RACHEL E. STASSEN-BERGER
Opponents see that provision as ripe for challenge, given recent U.S. Supreme Court decisions opening the door to more money in politics. They say Minnesota’s “first come, first served” law is an unconstitutional limit of free speech.
“What this law says is the first people to speak have full rights, but subsequent speakers have half rights,” said Lee McGrath, executive director of the Institute for Justice Minnesota Chapter. The libertarian Institute for Justice plans to file a lawsuit challenging the constitutionality of the Minnesota law on Wednesday.
Ohio –– Cincinnati Enquirer: House passes measure to void election-spending rule
By Chrissie Thompson
COLUMBUS – Companies, nonprofits and unions wouldn’t have to disclose when they pay for an election advertisement, and corporations with state contracts would be allowed to spend money on elections, under a provision that passed the Ohio House Wednesday.
The provision would void a rule implemented by former Ohio Secretary of State Jennifer Brunner that governs election spending by corporations, nonprofits and labor unions. The rule requires the groups to disclose when they spend money to advocate for or against the election of a candidate, both through a statement included in the ad and through a form filed with the secretary of state’s office.
