In the News
Washington Post: Scratching the surface
By PROF. BRADLEY A. SMITH
“Separation of Campaign and State” checks in at about 25,000 words, and I feel it barely scratches the surface of setting forth the justifications for and benefits of a doctrine of separation of campaign and state. Cutting it to five blog posts is to barely leave a fingerprint on the surface. Nonetheless, I will talk just a touch about what such a doctrine might look like in a few of its particulars.
Separation of campaign and state conjures up images of another First Amendment doctrine, and it is intended to. So first, a word about separation of church and state. Church and state doctrine at the Court is, admittedly, something of a mess, with its rationale and application shifting over time and drawing substantial criticism from both left and right. Certainly the “wall of separation” must be regularly policed. Yet I believe the mess is frequently overstated. For all the importance of establishment and free exercise cases that reach the Supreme Court, and for all the heat and light they generate, most battles are fought over very narrow ground. The big battles of church and state are largely resolved.
CCP
The IRS recognizes that it needs different rule governing 501(c)(4) groups
By Tyler Martinez
Yesterday, IRS Commissioner John Koskinen announced[1] that the IRS will be pulling its controversial rule[2] expanding regulation of nonprofit social welfare organizations—commonly referred to as § 501(c)(4) groups. Such groups, like the NRA or the Sierra Club, often advocate for specific legislation and occasionally support or oppose candidates.
The Center for Competitive Politics (“CCP”) criticized the rule,[3] which the IRS announced in the wake of the scandal involving the IRS targeting conservative groups for unfair treatment under the nonprofit tax laws.[4] The first of CCP’s comments[5] focused on the statutory framework of the Internal Revenue Code’s regulation of nonprofits and their “political” activity—even offering a better draft rule that complied with Supreme Court precedent. CCP further commented[6] on the paperwork and accounting burden of the proposed rule. Finally, CCP submitted comments[7] addressing the legal and practical issues of the IRS’s draft rule.
IRS
Townhall: RNC Sues IRS Over Information Stonewalling on Targeting Scandal
By Katie Pavlich
The Republican National Committee has submitted a lawsuit against the IRS for failing to comply with Freedom Information Requests related to the targeting of conservative groups. The original FOIA request was made on May 21, 2013, nearly one year ago and the IRS has asked for multiple extensions to submit information. At this point, none of the information requested by the RNC has been received by the taxing agency.
“We’re filing this suit because the Obama administration has a responsibility to be transparent and accountable to the American people. The IRS has a legal obligation to answer our inquiry for these records. On Tax Day especially Americans deserve to know whether they can trust the agency to which they’re sending their taxes,” RNC Chairman Reince Priebus said in a statement. “If the IRS and the Obama administration don’t have anything to hide, why not answer the request? Their delays and distractions make Americans think they’re trying to cover up their actions, just like ex-IRS employee Lois Lerner. We’re going to keep fighting to hold the IRS and Obama administration accountable because Americans deserve a government that treats them fairly and not one that harasses them because of their beliefs nor an administration that goes after its perceived political enemies.”
Independent Groups
Bloomberg: Environmental Groups Forge Alliance for Campaign Donation
By Laura Litvan and Jim Efstathiou Jr.
Two of the nation’s largest environmental groups are combining forces to raise $5 million for the 2014 election to blunt better-financed efforts by industry groups fighting tougher climate-change laws.
The League of Conservation Voters and the political arm of the Natural Resources Defense Council said today they’re starting LeadingGreen to raise funds for federal candidates and identify more big donors for broader lobbying efforts. The fundraising is similar to Emily’s List, the nation’s largest political action committee, which attracts donations and then bundles cash donations to the candidates it endorses.
CPI: Super PAC leaders score perks from political donations
By Julie Patel
“We are the only super PAC dedicated to the research, development and enhancement of motivating conservatives to the polls,” it proclaims on its website. “No dinners, no pictures with VIPs, no shirts or yard signs here. People’s Majority uses every penny of your contribution to identify and motivate low-turnout voters on Election Day.”
Well, not every penny. The super PAC, which registered with the Federal Election Commission with the express purpose of advocating for and against political candidates, spent nearly ten grand on meals alone last year, including eye-popping bills at restaurants including Sorellinain Boston, Manny’s Steakhouse in Minneapolis, Henri in Chicago and Michael’s on the Hill in Vermont.
And even though it is an “independent expenditure-only committee” — the formal name for a super PAC — it didn’t spend a cent on independent expenditures, the activities that help elect or defeat candidates, such as political advertisements and targeted get-out-the-vote efforts.
SCOTUS/Judiciary
Roll Call: Can You Lie in Politics? Supreme Court Will Decide
By David Hawkings
The Supreme Court has made pretty clear that putting your money where your mouth is deserves broad protection as a form of free political speech. The justices are about to consider whether outright lying in a campaign deserves a similar First Amendment shield.
The court’s recent decisions easing the flow of generous campaign contributions already shifted the electoral landscape. If the court finds that even the most patently outrageous statements about candidates may not be barred by law, those two decisions combined could expand the rhetorical battlefield of the midterm elections and raise the attack ad volume as never before.
With Congress in the middle of its spring recess, few if any members are expected to attend the April 22 oral arguments. But they will all surely have their ears tuned for word about the decision, expected by the end of the term in June.
The Hill: Supreme Court protester gets time served
By Mario Trujillo
The man who interrupted Supreme Court proceedings earlier this year pleaded guilty and was sentenced to time already served.
Noah Kai Newkirk, who in February staged a rare protest in the Supreme Court that was caught on video, has also been barred from the court grounds for a year, according to the Associated Press.
“Price was well worth it,” he tweeted Tuesday, noting the arrest elevated the issue of campaign finance.
Corporations
Washington Post (Volokh): D.C Circuit finds SEC’s conflict mineral disclosure rule violates First Amendment
By JONATHAN H. ADLER
In an opinion by Judge Raymond Randolph (joined by Judge David Sentelle), the court concluded that compelled disclosures of commercial information are subject to the same level of First Amendment scrutiny as are other regulations of commercial speech (under the Central Hudson test), unless the disclosures are limited to “purely factual and uncontroversial information” and the mandatory disclosure is “reasonably related to the State’s interest in preventing deception of consumers.”
Candidates, Politicians, Campaigns, and Parties
Mother Jones: The Lawyer Behind the Supreme Court’s Latest Campaign Finance Decision Has a New Cause: Sarah Palin for Senate
By Andy Kroll
When the Supreme Court recently demolished yet another chunk of the nation’s campaign finance laws, Dan Backer arguably cheered louder than anyone.
It was Backer, a Washington, DC-area attorney active in conservative politics, who had convinced an Alabama businessman named Shaun McCutcheon to challenge the government’s limit on the number of candidates, party committees, and political action committees an individual can contribute to in a single election cycle. (The basic limits on how much money that donor can give to each candidate, party, or PAC remain intact.) Backer, who represented McCutcheon, responded to the news of the Supreme Court’s decision by tweeting (in apparent reference to William Wallace in Braveheart): “FREEEEDOMMMMM!!!!” Backer’s victory is shining some light on another high-profile cause of his: Convincing Sarah Palin to run for US Senate.
Lobbying and Ethics
Washington Post: McMorris Rodgers’s legal fees are pricey…for her campaign
By COLBY ITKOWITZ
The House Ethics Manual says this is all on the up and up. Members of Congress can use campaign funds to defend legal actions that arise from the job because “the protection of a Member’s presumption of innocence” is a “valid political purpose.”
State and Local
DLA Piper: In wake of McCutcheon case, states abandon aggregate contribution limits
By William H. Minor
Early this month, the United States Supreme Court invalidated federal aggregate limits on individual political contributions in the case McCutcheon et al. v. Federal Election Commission. The case and its immediate impact were detailed in our previous Alert.
In McCutcheon, the Court was not forced to address comparable limits imposed under state law. At the time of the decision, eight states had in place aggregate individual contribution limits similar to the federal law, with one more state law set to go into effect next year. Additional jurisdictions have adopted other types of related limits. None of these state laws were part of the McCutcheon case. The Court struck down only the federal limits, leaving caps on state contributions untouched . . . but not for long.
California –– LA Times: Candidate Shriver wants overhaul of L.A. County campaign finance laws
By Catherine Saillant and Abby Sewell
Bobby Shriver, the first Los Angeles County supervisorial contender in 18 years to opt out of voluntary campaign spending limits, is calling for a major overhaul of county election laws, including lifting fundraising restrictions on candidates who use personal wealth to help pay for their campaigns.
Last month, the Santa Monica lawyer and nonprofit director contributed $300,000 of his own money to his effort to succeed longtime west county Supervisor Zev Yaroslavsky. Shriver, a member of the Kennedy political family, criticized a $1.4-million voluntary spending limit in the June 3 primary as inadequate to get his message out to 2 million constituents.
