Daily Media Links 5/5

May 5, 2022   •  By Tiffany Donnelly   •  
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In the News

Philanthropy Roundtable: Senate Hearing Highlights Threats of IRS Abuse

By Brian Hawkins

We talk often here about the importance of the right to give anonymously in fostering our vibrant civil society. This right once again came under fire in a Senate Finance subcommittee hearing Wednesday as Chairman Sheldon Whitehouse slammed so-called “dark money” in politics and called for increased disclosure of nonprofit donors. Of course, such disclosure would chill speech and free association. As former Federal Election Commission (FEC) Chairman Brad Smith noted in his well-informed testimony, the IRS has an unfortunate history of targeting political opponents with the information groups are forced to disclose to the agency. While the hearing examined various perspectives on whether any political activity should affect the tax-exempt status of nonprofit organizations, Smith’s poignant reminder of the agency’s politically-motivated decisions – and its power to award or revoke tax exemption – should give pause to anyone relying on Washington bureaucrats to regulate the charitable sector.

New from the Institute for Free Speech

Testimony of Bradley A. Smith Before the Senate Finance Committee Subcommittee on Taxation and IRS Oversight

For many reasons, the enforcement of campaign finance and other laws regulating political speech is a highly complex issue. Most importantly, such laws must be carefully crafted in order to avoid infringing on First Amendment rights. Unfortunately, too often these laws have not been carefully written, and when such laws are combined with criminal penalties, they provide a breathtakingly powerful tool for elected officials and government employees to use to try to silence or hinder political opposition.

Ironically, the last time I was asked to testify at a hearing dedicated to political activity by tax-exempt organizations was in 2013 before the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism, then chaired by Senator Whitehouse. At that hearing, a witness called by the majority Democrats noted that he was “optimistic” about the ability of the Internal Revenue Service to regulate political speech, praising the agency as “scrupulously fair and nonpartisan” and singling out the then-Director of the Exempt Organization Division, Lois Lerner, for particular praise. Committee on the Judiciary, Subcommittee on Crime and Terrorism, 113th Cong., Apr. 9, 2013, p. 70-71 (Supplemental Statement of Gregory L. Colvin). One month later, Ms. Lerner “told a stunned audience of tax attorneys in Washington that the IRS had delayed and obstructed the tax exemption applications from conservative-sounding organizations,” and later that month, the U.S. Treasury Inspector General made public a report confirming and detailing the nature of the targeting.” Michael Wyland, “Whatever Happened to the IRS Tax Exemption Scandal?”, Nonprofit Quarterly, Aug. 22, 2017. Now here we are again, with another Democratic Senate majority facing fierce political headwinds, and it appears that a small group of senators is looking to respond by trying to further involve the IRS in regulating political speech.


The Courts

Reason (Volokh Conspiracy): Continuing to Send Unwanted Political Mailings to a Business Isn’t “Harassment” Under Minnesota Law

By Eugene Volokh

From Christian Action League of Minn. v. Freeman, decided last week by the Eighth Circuit, in an opinion by Judge Jonathan Kobes, joined by Judge Raymond Gruender:

Free Expression

San Francisco Chronicle: No, Ron DeSantis’ battle with Disney isn’t just political grandstanding

By Burt Neuborne and Erwin Chemerinsky

We think the Supreme Court was wrong in Citizens United when it granted full free speech rights to corporations like Disney. Nor are we fans of delegating government powers to profit-driven corporations. But, as long as corporations continue to function as powerful First Amendment speakers, the worst thing we could do is empower an all-powerful regulatory state to turn corporate speakers into mouthpieces for the government by punishing them for failing to toe the party-line. That’s how Vladimir Putin rules Russia.

First Amendment News hosted by FIRE: Ira Glasser on corporate speech— FAN 338

By Ronald K.L. Collins

The following commentary is by Ira Glasser, who served as the executive director of the American Civil Liberties Union from 1978 to 2001:

Robert Corn-Revere’s recent analysis of the Disney controversy is, in my view, exactly right, and I commend it. I imagine many liberals would agree with him, and that many conservatives would not. Herein lies an irony.

Citizens United v. Federal Election Commission (2010) held that corporations’ speech was protected by the First Amendment. Liberals generally hated that holding (see e.g. Floyd Abrams, “Citizens United and Its Critics,” Yale L. J. Forum), while conservatives applauded it (see e.g. amicus brief of Pacific Legal Foundation in Citizens United).

Now Disney, a corporation, speaks in a manner pleasing to liberals and displeasing to conservatives. What, respectively, would they make of the Citizens United holding now?

Citizens United involved a statute that restricted electoral advocacy but its restrictions were intended to apply, and in practice did apply, far more broadly to reach advocacy that was not electoral but took place in an election year (e.g., the ACLU’s criticism of an elected official who was also a candidate running for re-election).

Remember that Citizens United was not a business corporation like Disney, but an incorporated-cause organization criticizing Hillary Clinton, much as the ACLU was an incorporated-cause organization that criticized Richard Nixon, or Donald Trump.

The States

Daily Journal: Governor vetoes bill tweaking campaign finance law

By Taylor Vance

The way Mississippi holds its politicians accountable for skirting state campaign finance laws is convoluted with large gaps in the enforcement process. And it appears that won’t change anytime soon.

Gov. Tate Reeves recently vetoed legislation that would have transferred the power to levy fines against candidates who fail to file campaign finance reports on time from the state Ethics Commission to the Mississippi Secretary of State’s office, which helps administer elections.

“The potential for abuse of power by the eight member Ethics Commission is far less when juxtaposed with a single elected official who could seek to unscrupulously weaponize the power to further his political ambitions,” Reeves wrote in his veto message.

Tiffany Donnelly

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