CCP

Can Nonprofits Be Successful without Donor Privacy?

By Joe Albanese

Last week, Nonprofit Quarterly (NPQ), a website and magazine that writes about nonprofit management and governance, published an article about “liberating” 501(c)(4) advocacy nonprofits from the “‘dark money’ trap.”…

The authors conclude that “[w]hile transparency is absolutely needed, progressive organizations would be smart to use the 501(c)(4) platform to promote their cause while also leading by example with regards to donor transparency.” In other words, progressive nonprofit groups should participate in political debates, but without utilizing the donor privacy protections that happen to be a major factor of what makes nonprofits meaningfully different from, say, PACs…

The authors’ failure to even acknowledge the costs of disclosure is alarming. In our age of hyper-partisan and combative politics, being publicly identified as a supporter of a particular organization or cause can be an invitation for threats, harassment, or other abuses….

Ignoring the reasons nonprofits and Americans prefer privacy in the first place prevents the authors from making a truly compelling case for voluntary disclosure.

The Courts

Washington Post: Massive new searchable database of federal court opinions, including ones that haven’t been formally published

By Eugene Volokh

The Free Law Project, famous for its RECAP browser extension for PACER users, has now scraped all the federal court opinions available for free on PACER, and put them in a free database with a fairly powerful search engine (https://www.courtlistener.com/recap/):

At Free Law Project, we have gathered millions of court documents over the years, but it’s with distinct pride that we announce that we have now completed our biggest crawl ever. After nearly a year of work, and with support from the U.S. Department of Labor and Georgia State University, we have collected every free written order and opinion that is available in PACER…

All of the documents amassed are available for search in the RECAP Archive of PACER documents and via our APIs. New opinions will be downloaded every night to keep the collection up to date.

Reason: Why SCOTUS Should Tell the Government ‘Get a Warrant’ in Cellphone Location Data Case

By Damon Root

This fall the U.S. Supreme Court will have the opportunity to give the third-party doctrine a second look when it hears oral arguments in the case of Carpenter v. United States. At issue is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the historical cellphone call and location records of several suspected armed robbers. Federal agents used those records to identify the cell towers that handled the suspects calls during the time periods in which the robberies occurred. The government then traced back the suspects’ movements and linked their whereabouts to their alleged crimes.

How should the Court approach this case? In an amicus brief filed last week, the Cato Institute, the Competitive Enterprise Institute, the Committee for Justice, and the Reason Foundation (the nonprofit that publishes this website) offer a piece of eminently sound constitutional advice: “This Court should apply the terms of the Fourth Amendment in all Fourth Amendment cases.”

What that means in practice, the brief explains, is that “the government’s compulsory acquisition of data in this case was a seizure. Processing the data to make it human-readable was a search….Thus, it was unreasonable to seize and search the data without a warrant. Lacking exigency or other excuse, the government should have got one.”

Washington Post: First Amendment banned from D.C. Metro – literally!

By David Post

The ACLU recently filed suit on behalf of itself, Yiannopoulos, Carafem and PETA in D.C. federal district court arguing that the WMATA policy is a violation of the First Amendment both on its face and as applied to the plaintiffs…
The plaintiffs, surely, have a strong case. On what possible grounds can WMATA defend rejecting an advertisement consisting of the text of the First Amendment? Who decides whether any particular issue is one “on which there are varying opinions,” and on what basis is that decision made? Why should PETA’s non-commercial message (“Don’t eat meat”) be prohibited while Burger King’s commercial message (“Eat more meat”) is allowed?…  

The ACLU’s complaint argues that the guidelines constitute “viewpoint discrimination” of a kind that was not present in Lehman – allowing messages that reflect the AMA’s (or the government’s) views on health-related matters, or those that reflect commercial positions on “industry goals,” while rejecting advertisements reflecting other viewpoints – requires the court to engage in a more exacting First Amendment analysis.

They may well succeed in that argument. Even if they don’t, though, it’s hard to see a a court upholding WMATA’s decision here even under the relaxed “reasonableness” standard.

Mother Jones: Justice Department Accused of Breaching Constitution by Seeking Info on Visitors to Anti-Trump Website

By Pema Levy

The Justice Department is demanding that the website-hosting company DreamHost turn over identifying information on visitors to a website used to organize protests during the president’s inauguration in January. The company, which is fighting the request in court, believes the search warrant is unconstitutionally broad and a threat to free speech. And digital privacy advocates warn that it could represent a McCarthyesque strategy for identifying political dissidents opposed to President Donald Trump and his administration…

The company views the warrant’s request for information on site visitors as overly broad. “Chris Ghazarian, our General Counsel, has taken issue with this particular search warrant for being a highly untargeted demand that chills free association and the right of free speech afforded by the Constitution,” the company wrote. “This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority.”

Candidates and Campaigns

McClatchy DC: Dem group urges candidates to campaign against money in politics

By Alex Roarty

In the past, Democratic strategists have dismissed the idea of candidates’ campaigning heavily on the idea of reducing the influence of money in politics… 

But Muller, whose group has spent a half-million dollars researching the issue, says candidates should talk about money in politics to prove they’re serious about improving the economy…

Democrats have struggled to adopt a campaign finance message in recent years because the party has its own network of super PACs, exposing its candidates to charges of hypocrisy if they urge campaign finance reform while benefitting from those groups.

Muller said Democrats can avoid that pitfall by simply saying they want to change the system while Republicans want to protect it.

But she did warn candidates to steer clear of mentioning the Citizens United case itself, or for that matter, any wonky details about campaign finance reform. Better to stick with a broad message that voters understand.

“If we talk about it as Citizens United, we’re going to lose,” Muller said. “We shouldn’t talk about it as Citizens United. Only 15 percent of people know what that is.”

Trump Administration

Newsweek: Is the Trump Administration Censoring a New Book on Government Torture?

By Alberta Mora

The book, Unjustifiable Means, is a forthcoming memoir by Mark Fallon, a former official for the Defense Department and Naval Criminal Investigative Service…

Yet the book may never be released-or, if it is, may appear only in a heavily redacted, bowdlerized form. Fallon’s story is currently undergoing a pre-publication security clearance review. Ten agencies, including the Departments of Defense and Justice and the CIA, the three agencies most responsible for the torture fiasco, are combing through it. And some, myself included, worry that the censors may be more concerned about protecting individual reputations than improper disclosures. Fallon was initially promised this process would take no longer than six weeks; it has now dragged on for more than seven months, with no end in sight.

As someone who has closely followed-and participated-in the war on terror, I’m dismayed by the prospect of Fallon’s book being censored. 

The States

Santa Fe New Mexican: Proposed disclosure rules are a problem

By Richard H. Rogers

It is a real shame that the powerful New Mexico Secretary of State is blatantly resorting to discredited political “disclosure” tactics, dismissed as illegal long ago, in requiring that political donors must publicly identify themselves for all to see and take retaliatory action…

The proposed rules, vetoed in legislation by the governor, are supposedly intended to provide “disclosure.” They fly in the face of the right of privacy, which is under attack and is fundamental to our way of government…

The segregationists used such rules to prevent opposition from forming. That is what is going on today. At that time, Southern states demanded membership information of civil rights groups so they could intimidate members. Groups feared retaliation. A unanimous United States Supreme Court in NAACP v. Alabama ex. Rel. Patterson, 357 U.S. 449 (1958), held that private groups could keep membership information confidential.

Justice John Marshall Harlan II wrote, “This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. …”

Bethesda Magazine: Attorney General’s Office Says County Programs to Publicly Fund State Campaigns Would Be Legal

By Andrew Metcalf

The next step in publicly financed elections in Maryland could be counties funding the campaigns of delegates and state senators.

An attorney with the state’s Attorney General’s office notified a Bethesda delegate last week that she believes the General Assembly could legally pass legislation for counties to set up public financing options for state races in those counties.

Del. Marc Korman (D-Bethesda) asked for the office’s opinion as he considers introducing legislation in the upcoming General Assembly session to allow counties to create the public funding option.

He said Tuesday that a statewide option for publicly funded campaigns-paid for by the state-would be preferable to county funding for state races. But he noted that a statewide public financing bill has failed to gain traction in the Legislature in recent years…

Already, the county has budgeted $11 million to publicly fund County Council and county executive candidates in the 2018 election. This election will be the first time candidates use the new system…

Adding state races could result in the county needing millions more for publicly funded state campaigns, straining an already stretched county budget.