Daily Media Links 12/6: The IRS and Donor Privacy, Patagonia, REI and Other Outdoor Retailers Protest Trump’s Decision to Shrink Utah Monuments, and more…

In the News

NBC Chicago: Current and Former Lawmakers Ask High Court to Hear Blagojevich Case

By Phil Rogers

Emphasizing they take no position on Blagojevich’s guilt or innocence, the lawmakers emphasize the need to clarify once and for all the vagueries of campaign finance law in the United States.

“This court’s guidance is needed to distinguish the lawful solicitation and donation of campaign contributions from criminal violations of federal extortion, bribery, and fraud laws,” the lawmakers wrote in the brief filed Monday, noting that the court’s landmark McCormick decision stated flatly that political candidates can’t “realistically avoid soliciting campaign funds from the very constituents whose interests they may later advance through the support of specific legislation.” …

In a second brief filed in support of Blagojevich getting his day before the high court, the Illinois Association of Criminal Defense Lawyers agreed that the current rules surrounding campaign finance are confusing at best.

“A correct determination of what words and actions are legal and what are not legal is absolutely critical,” the defense lawyers wrote…

Two other groups also filed amicus briefs in support of the court taking Blagojevich’s case, the Institute for Free Speech, and the Center on the Administration of Criminal Law.

New from the Institute for Free Speech

Defendant John Swallow’s Reply Memorandum in FEC v. Jeremey Johnson and John Swallow

The FEC claims that it has “consistently and repeatedly enforced” the “helping and assisting” regulation at issue here. But the Commission did not cite, nor could Mr. Swallow find, any enforcement action before a federal court. The FEC’s “consistent and repeated” enforcement is limited to its own internal processes, and this appears to be the first true contest concerning the legal sufficiency of 11 C.F.R. § 110.4(b)(1)(iii). In the end, this Court must dismiss the Amended Complaint unless the FEC can win on all of the following four points: (1) the plain text of the statute must be ambiguous, despite the FEC’s reliance on cases holding that the statute unambiguously reaches only the true sources of financial contributions; (2) the FEC must establish that the Supreme Court’s holding in Central Bank of Denver does not apply; (3) the FEC’s regulation must be a reasonable construction of 52 U.S.C. § 30122; and (4) the FEC must either survive strict scrutiny, or explain why and how its regulation survives a lower standard of scrutiny. As discussed below, the FEC has failed to meet its burden on any of these points, much less all four.


Brace Yourself for the Tax Ads, You Just Might Learn Something

By Alex Cordell

It has been 31 years since the federal tax code was significantly changed – and not for lack of trying. Even within the two major parties, there is no real consensus on what the ideal framework would be, largely because there is no real consensus on the economic implications of different changes to the tax code. Highly-qualified authorities on both sides of the issue could debate the subject for days, each raising compelling arguments both for and against the merits of tax reform. If the existing tax code and potential reforms to it are so perplexing and divisive among experts, how can your average voter possibly hope to form a reasonable opinion?

Nonprofit advocacy groups on both sides of the debate that put out ads are part of the answer.

Organizations that work primarily on tax policy, such as Americans for Tax Reform or the Tax Policy Center, have the knowledge to understand the economic implications of the legislation (as they see it), and the ability to package that information in such a way that average voters can understand how the bill will affect their day-to-day lives. Ads, whether placed online, on TV, or on the radio allow organizations to reach more Americans with their message.

Donor Privacy

Center for Individual Freedom: The IRS and Donor Privacy

Timothy Lee, CFIF’s Senior Vice President for Legal and Public Affairs, discusses the need for legislation to protect the privacy of donors to nonprofit organizations and prevent IRS abuse and why, in the first place, the IRS should not be collecting sensitive information about donors.

Free Speech

National Review: Student Protesters: Defending the First Amendment Is ‘Violent’

By Katherine Timpf

According to an article in the school’s official student newspaper, the Western Front, Professor Jonathan Zimmerman was about to begin his “Censorship and Free Speech in the Age of Trump” lecture when he was disrupted by a group of students carrying signs reading “Advocating for the right to racist, sexist and transphobic speech is violent” and “Your safe space is violent.”

Now, at first glance, the messages on these signs might seem perfectly reasonable – or even kind. What decent person, after all, would defend sexist, racist, or transphobic speech? I certainly wouldn’t. Here’s the thing, though: These signs aren’t slamming those who advocate for hateful speech, they’re slamming those who advocate “the right” to this kind of speech. In other words: They’re slamming those who defend the First Amendment…

The most puzzling thing about all of this is: If you were to ask these student protesters, they’d probably say that they don’t want Donald Trump and the Republican-majority Congress to have the power to limit what they can and cannot say – and yet, that’s exactly what the words on their signs are demanding. I’d really encourage them to rethink it. It’s certainly admirable to use your voice to speak out against hateful speech, but calling for the government to silence it is taking the risk that one day you’ll be silenced, too.

Washington Post: Emory University gets “green-light” free-speech rating from FIRE

By Sasha Volokh

The Foundation for Individual Rights in Education (FIRE) has given Emory University a “green light” status for its commitment to free speech and open expression on campus. Emory is one of only 37 universities nationwide to have that status, and the only one in Georgia…

It makes sense that Emory should be a green-light campus, because for the last five years, it’s been governed by the Respect for Open Expression Policy. That policy is interpreted and administered by the University Senate’s Committee for Open Expression, which I’m the chair of. Over the last few years, the Committee for Open Expression has interpreted the policy both informally and through a series of formal opinions, for instance our first one, where we defended the Open Expression rights of Emory Students for Justice in Palestine, and our second one, where we opined on the Donald Trump chalkings and related incidents…

So, perhaps for some schools, earning a green light involves pushing back against some restrictive speech codes – but at Emory, it was really just a matter of cleaning up stray, outdated, or mistaken language.

Supreme Court

Competitive Enterprise Institute: Forced Union Dues Fund Labor Union Politics

By Trey Kovacs

Today, the Competitive Enterprise Institute (CEI) submitted a brief in Janus v AFSCME, Council 31, a case before the United States Supreme Court. The question at hand is whether the First Amendment allows the government to force public employees to financially assist a union they do not support. The plaintiff in the case is asking the Supreme Court to overrule Abood v. Detroit Board of Education (1977), which permits unions to collect compulsory dues, or in some cases, agency fees.

CEI’s brief dispels the myth that forced union dues are only spent on union representational activity. Despite past U.S. Supreme Court decisions that have placed restrictions on how labor unions may use forced dues, “public-sector unions have demonstrated unbridled creativity in channeling the fees paid by non-members to fund a range of ideological activities as wide as any political party’s.”

The Courts

Play Pennsylvania: Sands Suing for Right to Make Unlimited Political Contribution

By Marty Derbyshire

Other businesses can make unlimited donations under Pennsylvania’s campaign finance law. However, there is a ban on political contributions made by anyone involved in the gambling industry.

In 2009, the State Supreme Court tossed out the state’s ban, which initially outlawed large campaign contributions from within Pennsylvania’s gambling sector…

The court said the ban helped prevent corruption. However, it infringed on the investor’s free speech rights. The court also suggested a law that limited the size of the contributions would be better.

Instead, state lawmakers just removed all references to contribution size and restored the ban outright.

Now, a shareholder in one of the state’s largest casinos, and the director of one of its smallest, are suing to overturn it.

Pasquale Deon Sr., a shareholder in Sands Casino Resort Bethlehem, filed a lawsuit in federal court in August. The suit claims the ban infringes on his rights to free expression, free association, and equal protection under the U.S. Constitution…

A conference has been scheduled for this month by U.S. District Judge Sylvia Rambo. However, no trial date has been set.

Corporate Speech

New York Times: Patagonia, REI and Other Outdoor Retailers Protest Trump’s Decision to Shrink Utah Monuments

By Christine Hauser

“The president stole your land,” Patagonia said in a pop-up message on its website. “In an illegal move, the president just reduced the size of Bears Ears and Grand Staircase-Escalante National Monuments. This is the largest elimination of protected land in American history.”

Patagonia has been at the forefront of the outdoor recreation industry as the sector becomes increasingly politicized by the actions of Mr. Trump this year. On Tuesday, the company’s general counsel, Hilary Dessouky, said through a spokeswoman that the company planned to file a lawsuit on Wednesday challenging the president’s shrinking of the national monument…

REI said it would continue to pursue bipartisan support to protect public lands and “prevent death by a thousand cuts.”

“We just lost millions of acres of protected land,” the company said. “But we remain united as a community.”

North Face, citing federal lawsuits that were filed in anticipation of Mr. Trump’s decision, said it was donating $100,000 to an education center for Bears Ears.

And the Canadian company Arc’teryx announced it would donate the net proceeds of its Nov. 28 post-Thanksgiving eCommerce sales in the United States to The Conservation Alliance and an additional $30,000 to the alliance’s Public Lands Defense Fund, which is challenging the legality of Mr. Trump’s move.

Washington Post: UPS and Pfizer’s dirty little secret

By Sens. Sheldon Whitehouse and Elizabeth Warren

ALEC describes itself as the “largest nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism.” In reality, it is an almost entirely corporate-funded front group looking to roll back environmental, consumer and workplace protections in state legislatures across the country…

Now, with a White House occupant who has said climate change is a hoax, ALEC’s anti-climate campaign is in overdrive. And complicit in that push are corporate supporters – such as Pfizer and UPS…

With the Trump administration busily undoing environmental safeguards and the president announcing his decision to withdraw the United States from the Paris climate accord, business leadership on climate is more important than ever. Hundreds of American businesses have signed the “We Are Still In” declaration, affirming their ongoing support for climate action.

When corporate America backs an anti-climate agenda contrary to the express policies of the corporations, consumers and investors – and the world – will be watching.


Brennan Center: The Tax Overhaul is Proof that Money in Politics Affects All of Us

By Daniel I. Weiner

As Republicans in the Senate pushed a giant tax overhaul last week, the media took on many angles, from winners and losers, to subplots ranging from politicized churches to actor Paul Newman’s charitable foundation. But one dimension deserves far more attention: the role that vast sums of political money – much of it unleashed by Citizens United and other court cases – played in setting the agenda…

And while the Supreme Court has taken some sensible policies off the table, others remain constitutional.

One is transparency. An immediate priority should be to ensure that any final tax overhaul excludes the House’s repeal of the so-called “Johnson Amendment” barring tax-exempt 501(c)(3) entities from intervening in politics, which would turn them into conduits for secret campaign spending. Other measures, including stronger campaign contribution limits and public financing, don’t stand much chance of passing Congress now, but ought to be championed in the states. It is also essential to continue pushing for better enforcement of existing laws and, over the long term, a change of course by the Supreme Court.

The Center for Competitive Politics is now the Institute for Free Speech.