By Eliza Newlin Carney
Last year state lawmakers introduced more than 40 bills that took aim at protesters. Some expanded the definition of “riot” or “domestic terrorism,” some introduced new categories of crimes, such as “unlawful mass picketing,” some penalized protesters who block traffic or wear face coverings.
Many proposed prison time or fines into the tens of thousands of dollars, and proved too draconian even for Republicans. Of more than 40 anti-protest bills introduced in 2017, only seven were enacted into law. Another 22 died or were vetoed or defeated, and 17 carried over. In the 2018 legislative session, which is in the process of winding down, GOP legislators introduced more than a dozen new anti-protest bills, with varying degrees of success. Almost half of them went after protesters who impede so-called critical infrastructure, a dangerous turn that troubles civil rights advocates…
“They are trying to bankrupt and punish what they perceive to be movement organizations,” says Moira Meltzer-Cohen, a staff attorney with the Water Protector Legal Collective in North Dakota, which provides pro bono legal help to Dakota Access pipeline protesters charged at Standing Rock. Imposing such steep fines and long sentences “functions in the same way as prior restraint,” she warns. “It makes it so risky to engage in protected speech … that it will disincentivize people from doing so.” …
As a champion of campaign finance deregulation, the Institute for Free Speech does not often side with progressives. But in Reason magazine, one research fellow with the group warned: “Faced with the possibility of fines or legal battles, many will choose not to speak at all.”
By Eliza Newlin Carney
By Brian Garst
Schedule B requires 501(c) organizations to include certain contributors’ names and addresses with their annual Form 990 reports. Yet the IRS has acknowledged that this information has no enforcement value. Instead, its collection creates opportunities for abuse and chills speech and civic participation.
Like the secret ballot, respecting donor privacy and thus anonymous speech and association is essential to prevent majoritarian abuse and intimidation that subverts democracy. This was a lesson learned in the civil rights era after the shameful attacks on the NAACP and its supporters.
Although officials pledge to keep the collected information confidential, there’s good reason to question the ability of the government to protect sensitive taxpayer information given the history of inadvertent disclosures and information leaks at the IRS…
For minority viewpoints, public exposure can lead to intimidation or other private consequences. We saw this when Brendan Eich was forced out as Mozilla CEO after it was revealed he donated in support of California Prop 8.
Not long after that, an effort by then-California Attorney General Kamala Harris to collect donor information was found to be unconstitutional as applied to the Americans for Prosperity Foundation and the Thomas More Law Center, though a similar challenge by the [Institute for Free Speech] failed. In ruling on the Thomas More Law Center challenge, the district court found that “in the context of a proven and substantial history of inadvertent disclosures,” the state’s government could not assure donor confidentiality.
By Ken Dixon
State Sen. Joe Markley of Southington and Rep. Rob Sampson of Wolcott were ordered this spring to pay $2,000 and $5,000 fines respectively, for what the State Elections Enforcement Commission ruled was an effort to help Republican Tom Foley’s challenge to Malloy.
Now, the Alexandria, Va-based Institute for Free Speech has agreed to pursue the case in state Superior Court along with Mike Cronin, a legal adviser for Senate Republicans.
“Talking about our opinions of the governor is almost essential campaign speech,” Markley said in a Tuesday interview. “The case, on a certain level, makes people scratch their heads.”
Markley, who won the state GOP endorsement for lieutenant governor last month, said the fines are an “unreasonable barrier to political speech.”
“This policy effectively bans candidates from speaking to voters about one of the most important responsibilities of the office they seek to hold – checking the power of the executive,” said Allen Dickerson, legal director of the non-profit institute…
[The SEEC] said that Sampson and Markley made illegal expenditures for Foley, who would have had to share the cost of the mailers…
Sampson, who is seeking Markley’s Senate seat, and the senator split the cost of mailers that, while highlighting their achievements in office, also mentioned Malloy’s tax hike and overall policies. Two more ads from Sampson mentioned the governor’s policies…
Markley recalled that about two dozen other Republican candidates had similar complaints against them and settled with the SEEC, but that in August, 2016, he and Sampson refused, and instead looked for support from First Amendment advocates.
By Christine Stuart
Two Republican lawmakers are appealing the ruling of the State Elections Enforcement Commission in Superior Court saying that election regulators violated their free speech rights in 2014.
The State Elections Enforcement Commission fined Sen. Joe Markley $2,000 and Rep. Rob Sampson $5,000 for failing to get Democratic Gov. Dannel P. Malloy’s opponent or their party to help pay for mailers attacking Malloy…
The Institute for Free Speech has agreed to take the case to court on behalf of Markley and Sampson…
“Just as candidates for Congress must be able to discuss the president, candidates for state legislature must be able to discuss the governor,” Institute for Free Speech Legal Director Allen Dickerson said. “Yet Connecticut law prevents candidates for the General Assembly from criticizing the governor’s policies in ads unless they first secure the approval and funding of one of the governor’s opponents. This policy effectively bans candidates from speaking to voters about one of the most important responsibilities of the office they seek to hold – checking the power of the executive.”
Markley and Sampson through their attorneys are asking the court to dismiss the fines and declare the law unconstitutional.
“Requiring legislative candidates to get permission and funding from a gubernatorial candidate in order to discuss the governor in campaign ads violates the First Amendment,” the two said in a press release.
Joe Markley and Rob Sampson sue the State Elections Enforcement Commission after being fined for discussing the governor’s policies in mailers Alexandria, VA – For voters, what information about legislative candidates could be more important than knowing their views on the governor’s key policies? Yet the state of Connecticut has fined two General Assembly members simply […]
By Rick Hasen
A federal court upheld the Federal Election Commission’s dismissal of disclosure charges involving two wealthy contributors who allegedly funneled $14 million to super-political action committees through obscure companies.
The FEC’s three Republican commissioners, who voted to dismiss the charges, exercised permissible discretion in “an issue of first impression” following the Supreme Court’s 2010 decision in Citizens United v. FEC, ruled Judge Trevor McFadden of the U.S. District Court for the District of Columbia. The judge accepted the Republican commissioners’ argument that the rules for such contributions were uncertain and a new legal standard should be established going forward…
The three Democratic FEC commissioners said longstanding rules barring “straw donations” applied to campaign money funneled through a company…
The judge’s decision to uphold the Republican commissioners’ view drew praise from David Keating, president of the nonprofit Institute for Free Speech, which criticizes campaign regulation.
“It was the right decision,” Keating said in a phone interview, adding that the FEC should provide “formal guidance” going forward about the legal standard for straw donations. Such guidance would require FEC Democrats and Republicans to agree on an approach.
The judge’s decision was faulted by Paul Seamus Ryan, a lawyer with the nonprofit Common Cause, which supports strong disclosure rules. On Twitter, Ryan noted that McFadden is a judge appointed by President Donald Trump and said his ruling bent “over backwards … to let campaign finance law violators off the hook for laundering millions of dollars into our elections.”
By Ken Doyle
The nonprofit Campaign Legal Center filed a rulemaking petition earlier this year proposing strict limits on what people who are no longer running for office can do with excess campaign cash.
The FEC announced it will begin in July to routinely review campaign committees linked to federal candidates who’ve been out of office for more than one election cycle. If expenditures appear to be for personal use, the FEC said it would follow up with additional questions…
Another nonprofit, the Institute for Free Speech, suggested the FEC use its existing enforcement power to clamp down on questionable spending by dormant campaign committees. “A rulemaking is premature,” said the comment letter from Allen Dickerson, counsel for the Institute.
Comments filed by IFS urge the Commission to respect free speech online Alexandria, VA – The Institute for Free Speech filed comments Friday with the Federal Election Commission (FEC) in response to the agency’s March 26 announcement proposing revisions to disclaimer regulations as applied to public communications over the Internet. The Institute’s comments remind the FEC not to […]
By David Herzig
There has been a politically charged debate in academic circles for a while now about events that happened in 2013 regarding IRS investigations into groups purportedly because of the use of the term “Tea Party” in their name.
Paul L. Caron on the TaxProf Blog has been running a mostly continuous post (up to around day 1830) about “The IRS Scandal.” …
[A]n interesting feud between Bradley A. Smith (and others) and David Cay Johnston (and others) percolated over the facts associated with Professor Smith’s Wall Street Journal Op-ed…
In the opinion piece, Professor Smith asserts that, “[t]he easy fix here would be for Congress simply to scrap restrictions on political activity by social-welfare organizations, thereby stripping the IRS of authority to decide which groups are “political committees” and which aren’t.” The problem with this “easy fix” is that it fundamentally misses a key distinction between 501(c)(4)’s and political committees – 501(c)(4)’s do not disclose donors while PACs are required to. By collapsing the distinctions, it would appear that Professor Smith would allow PACs to have anonymous donors. The current system at least provides that the more involvement in politics that an entity has, the more transparency is required.
Instead of bickering over the facts some 10 year later, it would be much more productive to focus on the problems of adequately funding the IRS as well as related the fixes to the 501(c)(4) political action committee regime.
Ed. Note: Reply from Bradley A. Smith: “No, under plan I proposed in WSJ, pacs could not have anonymous donors, because FECA prohibits that (or state law for state pacs)…
“And that’s basically my point– this should not be an IRS issue at all.”
TaxProf Blog: The IRS Scandal, Day 1829: Wyland Says Johnston’s Op-Ed Contains ‘A Number Of Breathtaking Distortions And Omissions’ (In the News)
By Paul Caron
TaxProf Blog op-ed: David Cay Johnston’s Op-Ed Contains ‘A Number Of Breathtaking Distortions And Omissions,’ by Michael L. Wyland (Sumption & Wyland, Sioux Falls, SD):
In his op-ed Bradley Smith’s WSJ Op-Ed Is A ‘Breathtaking’ Distortion Of The Facts Of The IRS ‘Scandal’, Pulitzer prize winning journalist and author David Cay Johnston has forgotten an old aphorism. When one points an accusing finger at someone, three fingers of the same hand point back at oneself. In short, Johnston’s response to Bradley Smith’s Wall Street Journal commemoration of the fifth anniversary of the IRS scandal contains a number of breathtaking distortions and omissions of its own…
There was a 2017 TIGTA audit report that indicated IRS review of applications for tax exemption that included other types of suspected political activity besides conservative, but that report covered a time period that began in 2004, six years before the 2010 inception of the “tea party cases” activity by the IRS…
Those who point to the 2017 report conveniently ignore a prior 2014 TIGTA report issued in response to assertions by Democratic members of Congress who sought to document the ecumenical nature of the IRS activity.
That report confirmed that the overwhelming majority of the applications flagged were indeed from conservative-sounding organizations, and that the small minority of applications that were also flagged during that time appeared to be included in the group accidentally for reasons not related to their presumed political ideology or assumed activities.
Filed Under: In the News