The Importance of Protecting the Privacy of Non-Profit Donors

The IRS recently defended the privacy rights of non-profit organizations by declaring they would no longer collect the names and addresses of donors. Detractors of this new policy, mainly coming from the far-left, argue this will lead to an increase in foreign spending and so called ‘dark money’ in American politics. The Institute for Free Speech's Luke Wachob explains in The Hill why this complaint is not based in reality. 

First, nonprofits can accept money from foreign sources, but they are legally prohibited from using it to support the election or defeat of candidates. The ban also applies to broadcast ads that mention the name of a candidate in the time near an election.

Second, a donor name and address does not tell you whether it is a U.S. citizen or green card holder. Many Americans live abroad, and many people in the United States are not citizens or legal permanent residents.

One of the most important results of the new IRS policy is groups will no longer be targeted for their political beliefs or agenda, something conservatives say was commonplace during the Obama administration. 

The rule. . . should prevent the IRS and partisan state attorneys general from targeting conservative groups, Republicans say, such as the government scrutiny of tea party groups during the Obama era. 

Senate Majority Leader Mitch McConnell, Kentucky Republican, said the move was a victory for free speech and a “straightforward, common-sense policy decision.”

“It’s particularly welcome news to those of us who are intently focused on defending the First Amendment, for those of us who raised concerns during the last administration about activist regulators punishing free speech and free association,” Mr. McConnell said on the Senate floor. “The IRS will no longer pointlessly demand private contributor lists from whole categories of tax-exempt organizations.”

Unsurprisingly, since the decision was announced liberal outlets have painted the picture that this move favors conservative organizations in a disproportionate manner. CNN recently ran a piece insinuating this policy change only benefits the NRA and other conservative groups. This is flat out not true, and Charles Cooke at The National Review explains how the change benefits the majority of non-profits on both sides of the political spectrum.

The change applies to every single 501(c)(4) in America. CNN could just as easily — and just as misleadingly — have placed the story under the headline, “NAACP will no longer need to identify their donors to the IRS.” Or it could have mentioned, say, Planned Parenthood. Or SEIU. Or Everytown for Gun Safety. Or the Sierra Club. Or . . .

Regardless of how the media is portraying this important policy change, non-profit organizations finally have their privacy rights protected. American elections were always meant to defend against intimidation and discrimination against a set of political beliefs. Thankfully, the IRS moved our nation a step closer to that goal.

A Needed Policy Change to Eliminate Bias at the IRS

In the past, conservative groups had to disclose sensitive information to the bureaucratic and often biased organization that is the Internal Revenue Service (IRS). Fox News reports that thanks to a recent policy change, that is no longer the case.

The Trump administration is lifting requirements that some tax-exempt groups disclose the identities of their donors to federal tax authorities. The change benefits groups that spend millions of dollars on political ads, such as the U.S. Chamber of Commerce and an organization tied to the billionaire Koch brothers.

This major announcement will bring a needed change of privacy to an organization that has historically discriminated against conservatives and right-leaning organizations.

Under the new guidance, social-welfare groups and other tax-exempt organizations, besides charitable and political organizations, will no longer have to provide the IRS with the names and addresses of donors. The groups will still have to keep donor information in their own records and make it available for the IRS when the agency needs the information in audits of taxpayers.

Majority Leader Mitch McConnell praised the change on the Senate floor yesterday:

Last night, the Internal Revenue Service made an important announcement. It’s particularly welcome news to those of us who are intently focused on defending the First Amendment, for those of us who raised concerns during the last administration about activist regulators punishing free speech and free association. And it’s a straightforward, commonsense policy decision. . . . 

It raises the question: If the IRS isn’t permitted to do anything with this set of Americans’ private information, why collect it in the first place? Unfortunately, we know exactly what happens when the government stockpiles private data about the donations through which Americans participate in the public discourse. We know exactly why many on the left are keen for bureaucrats to have this confidential information. Where it leads, is Americans being bullied – bullied -- for exercising their First Amendment rights. . . . 

So I welcome this announcement, and applaud the leadership of Secretary Mnuchin and Acting IRS Commissioner David Kautter. I’m glad that this step will make the right of Americans to freely advocate for their strongly-held beliefs less vulnerable to the malice of some in government, and to the proven failures of bureaucracies. And I urge continued vigilance for all of us who cherish our First Amendment.

Conservative groups have long been calling for a policy proposal like this one to take place, even coming together to write a letter to President Trump. The New York Times reports,

Americans for Prosperity and other 501(c)(4) organizations in the Koch brothers’ network of advocacy groups were among dozens of such nonprofit groups to sign onto a letter sent in May to Mr. Trump and Mr. Mnuchin declaring a policy change “an issue of utmost importance.” The letter accused the I.R.S. of “targeting of nonprofit organizations on the basis of ideology.”

Officials with the Treasury Department largely echoed that reasoning, explaining that the move was driven in part by the I.R.S.’s inappropriate targeting of political groups during the administrations of Presidents George W. Bush and Barack Obama.

The RNLA welcomes this new policy change as private organizations should never face government discrimination for their political beliefs. This proposal serves as one more safeguard against potential abuse.

Another Court Criminalizes Political Activity -- Will It Be Applied Equally?

The U.S. Court of Appeals for the Eighth Circuit has ruled, in United States v. Benton (8th Cir. May 11, 2018) that three officials from Ron Paul's 2012 presidential campaign committed criminal acts by (1) paying an Iowa State Senator for various services, including his endorsement, through a sub-contract with a video production vendor and (2) reporting the purpose of the expenditure as "audio/visual services."

The State Senator indeed provided "audio/visual services" to the Paul campaign by recording telephone messages and appearing on television for the Paul campaign.  He also traveled for the campaign and encouraged support for the campaign.  But federal prosecutors claimed the main purpose of the payment was the State Senator's "endorsement," which was not reported as the purpose of the payment.

All three of the Republican political operatives were convicted and punished.  One had his house raided and went to prison.    

The ruling has serious implications for the Hillary Clinton campaign and the Democratic National Committee.  News media have reported that the Clinton campaign and DNC funneled money to the Perkins Coie law firm, which in turn sub-contracted with an opposition research firm, Fusion GPS, which in turn sub-contracted with a foreign operative, Christopher Steele, to perform opposition research about Donald Trump.  The foreign operative reached out to Russians with Kremlin connections for information that might harm Donald Trump's candidacy.  The Clinton campaign reported the purpose of its payments to Perkins Coie as "legal services."  One liberal group has filed a complaint with the FEC over the activity. 

RNLA member Prof. Brad Smith noted that this decision could impact Perkins Coie:

“If I'm Perkins Coie, right now I'm a bit nervous about the reporting of payments to Fusion GPS,” said Brad Smith, a former FEC chairman and current chairman of the Institute for Free Speech.

Republicans do not support the criminalization of politics.  But Republicans do respect the rule of law and equal justice.  

Democrat Hypocrisy on Tax Cut Bonuses vs. Campaign Finance Disclosure

Writing in the Washington Examiner, Prof. Brad Smith astutely pointed out the disconnect between House Minority Leader Nancy Pelosi's response to employees receiving $1,000 bonuses as a result of the tax cut bill passed in December and the current campaign finance disclosure thresholds:

. . . The truth is that the U.S. today has more extensive disclosure than ever before. Contrary to popular myth, even “super PACs” are required by law to publicly disclose all donors giving more than $200. Traditional PACs, political parties, and candidates must do the same. In many states, the disclosure thresholds are much lower — as little as $10. 

Which takes me back to “crumbs.” If Nancy Pelosi thinks that $1,000 is “crumbs,” why does she support a law that requires every American who contributes more than $200 (and as little as $10 in some states) to a candidate, political party, or PAC, to be reported to the government, with their names, addresses, and employment information published for the world to see? . . . 

. . . A $200 contribution represents about one one-hundredth of 1 percent of what the average winning House candidate spent in 2016. No one in Congress is being corrupted by $200 contributions. Nor do undecided voters learn anything from seeing the personal information of thousands of small donors, whom they almost certainly have never heard of. 

These disclosure thresholds were low when enacted, and haven’t been adjusted, not even for inflation, since 1979. Studies have shown that compulsory disclosure of campaign contributions discourages small donor political participation. . . . The threshold at which contributor information must be publicly disclosed should be substantially higher than it currently is. That would simplify the reporting system, make harassment of small donors less likely, and encourage small donor participation. That would be one campaign finance reform both Left and Right could get behind. And it wouldn’t be “crumbs.”

Democrats and liberals are quick to dismiss when Americans get to keep more of their hard-earned money (and of course, $1,000 is a substantial amount to most people, even if not to multi-millionaire Pelosi).  Yet despite lamenting the lack of small donor participation in the political system, they champion outdated disclosure requirements that discourage small donors and require disclosure of small contributions of which a candidate takes no notice.  And as Prof. Smith describes, in this era of political violence and intimidation, the disclosure requirements open up everyday Americans to bullying and threats of violence for expressing their political beliefs through their contributions.

State of the Law on Donor Disclosure and Its Dangers

RNLA member Eric Wang published a thorough analysis of the state of the law on donor disclosure requirements and what the law should be under First Amendment free speech principles.  "Staring at the Sun: An Inquiry into Compulsory Campaign Finance Donor Disclosure Laws" was published today as a Policy Analysis paper from the Cato Institute.  Mr. Wang begins by pointing out the tension at the heart of any discussion of disclosure (footnotes omitted):

“Disclosure” is a term with warm and fuzzy connotations. When someone intersperses a “full disclosure” disclaimer in a conversation, we tend to credit the speaker for his or her candor. But privacy also is commonly regarded as a virtue in its own right. The right to privacy is held to be “fundamental” against intrusions by the government . . . . These competing interests of privacy and anonymity versus disclosure in the context of political speech are reflected in the Court’s tortured and tortuous jurisprudence. 

After examining the Supreme Court's unrealistic and limited justifications for donor disclosure requirements, Mr. Wang says that other justifications are not better:

If one goes in search of better justifications for compulsory donor disclosure beyond the Supreme Court’s holdings, the landscape is still rather bleak. The arguments put forward for disclosure often are illogical on their face, contrary to actual experience, inconsistent with other First Amendment precepts, or downright invidious. 

People United for Privacy just released this video about the chilling effects of donor disclosure requirements, including a disturbing moment when Senate Minority Leader Chuck Schumer admitted that the purpose of disclosure requirements was to deter citizens' speech about their government.  Mr. Wang describes this and the constitutional problems with that position:

Every so often, compulsory disclosure supporters reveal their true intention of deterring speech. . . .  This sometimes not-so-subtle effort to use compulsory donor disclosure laws to limit speech runs head-on, however, into what the Court has long held to be our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Not only that, but the deterrence of speech diminishes the public’s “right to hear, to learn, to know”—a right that also has been held to be fundamental.

Mr. Wang concludes by offering recommendations for disclosure laws that serve the legitimate purpose of disclosure while protecting citizens' constitutional rights, while pointing out how current laws often fall short of these principles: 

Disclosure’s purpose should be to “allow[] citizens to keep tabs on their elected officials”— not for “the government to monitor its constituents.” The legitimacy of disclosure laws is at its zenith when they focus on government transparency. Open government is essential to representative government and holding officials accountable and responsive to the public. When disclosure laws’ purpose is to monitor private individuals and groups exercising their First Amendment rights, however, such laws become an authoritarian tool for intimidation, retribution, and the suppression of democratic debate. 

Liberals and Democrats, in their ongoing quest to force more disclosure to deter citizens from speaking out about their government, would do well to pay attention to Mr. Wang's reasoned analysis of the dangers and proper role of donor disclosure.  Free speech often demands the right to speak anonymously, especially in our politically charged era where threats of violence against conservative speakers are becoming commonplace.

Honest Ads Act Would Regulate Americans Far More Than Foreigners

RNLA member Eric Wang wrote today about how the "Honest Ads Act" currently pending in Congress would burden Americans' free speech rights while doing very little to prevent foreign political ads:

According to the bill’s own legislative findings and its sponsors’ remarks, more than $1.4 billion was spent on online political advertising last year. Of that amount, some $100,000 (less than 0.01 percent) has been reported thus far as coming from Russian interests. But S.1989 fails at even a perfunctory attempt to target foreign interference. Instead, the bill would almost entirely regulate Americans.

Mr. Wang explained the statutory changes that the bill would make:

S.1989 begins by undoing the Federal Election Commission’s “internet exemption,” under which online political speech generally is not regulated unless it is a “communication placed for a fee on another person’s website.” . . . The change may appear subtle, but it makes a world of difference as groups making even minimal expenditures could be regulated for content on their own websites, blogs and mass emails. . . . Videos that groups post on YouTube and anything they publish on Facebook and Twitter also possibly could be regulated under S.1989. 

S.1989 next expands regulation of so-called “electioneering communications” to include online ads that refer to elected officials and candidates within certain pre-election periods. Again, this legislative rhetoric obfuscates reality. In fact, many “electioneering communications” are non-electoral issue advocacy. . . . At least under current law, only TV and radio ads targeted to those eligible to vote for the referenced candidates are “electioneering communications.” Despite the bill’s legislative findings about the ability to microtarget internet ads, S.1989 would indiscriminately regulate online ads even when they are not targeted at eligible voters. Thus, ads inviting New Yorkers to contact House Ways and Means Committee Chairman Kevin Brady (R-Texas) about the pending tax bill could be regulated, as could ads asking Texans to urge Senate Minority Leader Charles Schumer(D-N.Y.) to stop blocking judicial nominees. 

S.1989 also would effectively impose a new reporting requirement — on top of the existing FEC reporting burdens — for political and issue advertising costing as little as $500. A publicly accessible database would have to contain a copy of all regulated ads and details about how each ad was targeted, when it ran, the average rate charged, the candidate or “national legislative issue of public importance” discussed, and information about the sponsor and its officers or board members. . . . The compliance costs, when combined with the liability that S.1989 would impose on online platforms for recordkeeping errors, may drive online advertising costs out of the reach of many small grassroots organizations. . . .

Mr. Wang concludes by proposing some alternate, and much more effective, means of addressing the problem of foreign purchases of ads.  Notably, Congress could amend the Foreign Agents Registration Act (FARA), which is a law actually tailored to address foreign influence without impacting the important rights of Americans.  That is precisely the problem with the proposals to date: they regulate Americans' free speech rights without actually preventing objectionable foreign speech.

California’s Campaign-Advertisement Disclosure Laws Become Toughest in the Country

Last week, Governor Jerry Brown signed the California DISCLOSE ACT, AB 249, which by some standards makes California’s campaign-advertisement disclosure laws the toughest in the country.

This new law requires the three largest contributors (of $50,000 or more) to be listed on ballot measure ads and independent expenditures.

On video and TV, the disclosures must be displayed against a solid black background in a clear font that is not all-caps, fill the bottom third of the screen and stay up for a full five seconds during a 30 second ad. Each of the three major funders’ names must appear on a separate line. Disclosures on radio ads would need to be made with the same speed as the rest of the ad. Committees must keep track of donations on a daily basis to make this calculation. If the top contributors change, committees have five business days to make a new ad and update it. Top funders would have to be identified in TV, radio, online and print ads about ballot measures on the ad itself.

This law applies to print, online, TV, and radio ads as well as mass mailers and robocalls. It requires radio ads and robocalls to name the two largest funders.

It also requires that if the funds were earmarked, the “true” source of the funds be disclosed. However, California Fair Political Practices Commission chair Jodi Remke raised a red flag about the fine print tucked inside the bill – particularly how, for example, labor union earmarks are disclosed. Granted, the FPPC chair thought the bill might need to require additional disclosure requirements. But the new earmarking rules benefit labor unions – likely to the detriment of Republicans:

Critics of the bill, including Republican Assemblyman Matthew Harper, R-Costa Mesa, who voted against it, complain that it stacks the deck for Democrats by making an exception for membership dues, helping the labor unions that fund Democrats’ campaigns. 

If a member’s dues are used to pay for a campaign, the organization — not the individual dues-payer — would appear as the contributor as long as the total amount is below $500. Mullin and others argue the change eases the paperwork burden for membership organizations while making it easier for the public to follow the money. But Republicans have cast the provision as union-friendly politics as usual. 

“What this does is it creates a massive, dark-money loophole that unions can drive through,” Harper said. “It’s what Democrats do over and over again.”

Although Republicans may be currently outnumbered in the California legislature, that has not stopped the RNLA from working to set-up a robust lawyer organization in the state. On October 21, RNLA’s California Chapter is hosting National Republican Congressional Committee General Counsel Chris Winkelman at a MCLE event during the California Republican Party Convention in Anaheim. Mr. Winkelman will be discussing the lawyer's role protecting the integrity of elections. He will also highlight important Congressional races in 2018 and discuss how lawyers can help next November. We will also be introducing our statewide leadership and new California Regional Chairs. Register for the event here.

California’s RNLA Chapter is growing and recruiting lawyers around the state to help in 2018 races. If you haven’t already joined RNLA, now is the time!

By Audrey Perry Martin, RNLA California State Chapter Chair and Of Counsel to Bell, McAndrews & Hiltachk, LLP.

Weintraub Uses Russian Meddling As Excuse To Restrict Internet Speech

RNLA Vice President for Election Education David Warrington wrote today in the Daily Caller about how Democratic FEC Commissioner Ellen Weintraub, like other Democrats and liberals, is using the alleged interference of Russia in last year's election as an excuse to regulate political speech.  Mr. Warrington explained how Commissioner Weintraub's statements in a recent FEC meeting showed her political savvy and intent to regulate internet speech:

Weintraub’s most recent choice of words is akin to the proverbial camel’s nose under the tent.  Rather than lead with what she actually wants – full regulation of speech on the Internet – she was careful to open her conversation without a specific proposal.  She knows the public backlash her fellow traveler former FEC Commissioner Ann Ravel encountered after she voted to regulate YouTube videos disseminated for free accompanied by a clarion call for the FEC to change its restrained approach to political speech on the Internet. 

That was a big mistake, substantively and politically. . . . Weintraub is more slippery than Ravel.  Where Ravel would walk off a political plank, Weintraub knows how to be politically expedient above all else.  For example, pining for support of Senator Schumer’s law firm to keep her post (she’s 16 years into a six-year term and wants to stay), she recently broke with reformers in voting to greenlight a Democrat group’s online fundraising application.  That vote earned her rebukes from reformers, but might have won her quid pro quo political support to stay on the FEC a little while longer. . . . But Weintraub’s regulatory plans for the Internet have been just as clear as Ravel’s in a series of votes in FEC regulatory actions. . . .

Unfortunately, while foreign influence is the excuse for the calls for increased regulation, the speech that will actually be regulated is political speech by American citizens: 

Weintraub said she will start her attack on online free speech small by tweaking FEC disclaimer requirements for online paid ads.  Republican Commissioner Lee Goodman, an Internet freedom advocate, said (at minute 13:30) he was suspicious of Weintraub’s objectives, because demanding disclaimers on foreign ads would be illogical.  Foreign paid ads already are prohibited by law.  Adding a disclaimer requirement for ads that already are illegal would not be effective.  Furthermore, he questioned whether the United States could effectively police disclaimers on ads posted by foreigners, on foreign computers, through foreign servers, on foreign soil—it is, after all, the World Wide Web. 

Given these obvious limitations, Weintraub’s true aim, just like Ravel’s, must be greater burdens on all political communications by American citizens online.  YouTube videos, Facebook posts, and webcasts streamed over the websites of American citizens will be fully regulated—starting small with disclaimers and soon moving to expenditure reports and even censorship of links, re-tweets and free online interviews under broad theories of “coordination” and prohibited corporate in-kind contributions.

Mr. Warrington concluded by pointing out that if the result of any foreign advertisements is a restriction of free speech, the Russians would be pleased.  If we truly want to prevent foreign powers and actors from improper influence in our elections, we need to zealously protect free speech.

Liberals' Russia Narrative Crumbles as They Rush to Regulate Online Speech

The narrative of Russian interference with the 2016 election that has been one of liberals' favorite tools to attempt to undermine the legitimacy of the Trump Presidency continues to crumble.  

Last week, we noted how the Department of Homeland Security had finally notified 21 states where they had evidence of Russian activity regarding their election systems.  Except now California and Wisconsin have been told that this was not actually true, and the election hacking narrative, which started with the Obama DHS, may collapse even further.

Now, Facebook has delivered ads purchased by Russians to Congress and issued some FAQs about them, including these revealing facts (emphasis added):

• An estimated 10 million people in the US saw the ads. We were able to approximate the number of unique people (“reach”) who saw at least one of these ads, with our best modeling [RNLA note: The number of registered voters during the 2016 election was over 157 million and the total citizens of voting age was over 224 million.] 

• 44% of total ad impressions (number of times ads were displayed) were before the US election on November 8, 2016; 56% were after the election. 

• Roughly 25% of the ads were never shown to anyone. That’s because advertising auctions are designed so that ads reach people based on relevance, and certain ads may not reach anyone as a result. 

• For 50% of the ads, less than $3 was spent; for 99% of the ads, less than $1,000 was spent.

But, before their narrative completely crumbles, liberals are rushing to use it as an excuse to regulate online speech, which has long been a goal of campaign finance "reformers" such as former FEC Commissioner Ann Ravel, who advocated overturning the FEC's longstanding exemption of internet activity from certain regulations to apply the regulations to conservative YouTube videos ex post.  Liberal outlet Quartz recently demonstrated how the "reform" community is using the Russian Facebook ads as a pretext to argue for government control of speech by American citizens on the internet (while non-ironically lamenting that Facebook had failed to reach out to any "experts" in the "reform" community as it amended its ad policies).  And Democratic Senators Amy Klobuchar and Mark Warner are expected to introduce legislation to regulate political advertising online soon (more on that here once it is introduced).

FEC Commissioner Lee Goodman's TechFreedom podcast on these issues, that we highlighted on Monday, summarizes the serious constitutional dangers with the liberals' rush to regulate and what factors should be considered in a more measured approach that respects Americans' important political speech rights on the internet.

FEC Commissioner Lee Goodman on Rush to Regulate Social Media

FEC Commissioner Lee Goodman spoke to the TechFreedom podcast about alleged Russian attempts to influence the 2016 election and what our response should be to it.  We covered this twice last week (Thursday and Friday), but Commissioner Goodman's important message bears repeating:

My primary concern is that we not overreact to things that we cannot control and out of frustration, start regulating American citizens and make them guilty or responsible or punish them for what some bad actors do abroad. . . . It would be very difficult for the U.S. government to enforce our laws against a foreign person sitting on foreign soil posting information about U.S. politics on a foreign computer on a foreign server.  That would be very difficult.  We shouldn't, out of frustration, start regulating and punishing American citizens in their use of the internet because there's a lot of social good in the United States from that use. . . . 

Recent news reports are that there may have been $100,000 to $150,000 in ads spent by foreign sources on a range of subjects, some of which may not be in the Federal Election Commission's jurisdiction but under the jurisdiction of the Department of Justice in the Foreign Agents Registration Act.  But those ads are a drop in the ocean of information available from foreign sources on the world wide web. . . . We have all sorts of foreign information available to use from U.S. politics generally. . . . 

I'm not sympathetic to foreign meddling or influence in our elections.  I'm just saying that it is ubiquitous, ok?  Let's not go attacking the free speech rights of American citizens first as an effort to get to capillaries of foreign speech.  Let's target foreign speakers in whatever we do, and let's not at first target the civil liberties of American citizens. . . . We have a long history of overreaction and diminishing the civil liberties of American citizens in order to get at some of the pores that may be open for foreign influence, and I say let's get at the pores. . . .

The entire podcast provides an excellent overview of this issue, the factual realities, current law, and how the free speech of Americans could be threatened by a rush to regulate political advertising on the internet. 

Democrats' Next Target: FEC and Further Regulation of Political Speech

Last week, Business Insider alluded to the next target by the left--further regulation of political speech by the Federal Election Commission (FEC). Business Insider reported:

Democrats in the House and Senate sent a letter to the Federal Election Commission on Wednesday urging it to "develop new guidance" on how to prevent illicit foreign spending in US elections in the wake of Facebook's announcement that Russia-linked accounts purchased $100,000 worth of ads last year. ...  

Looking ahead to the 2018 elections, the Democrats called on the FEC to implement improved disclosure standards "to ensure voters have the information they need to evaluate political advertising" — whether it appears on TV, the internet, or elsewhere. "There is no reason to believe this behavior will stop in future elections," they said. The FEC last approved regulations governing certain types of internet communications by political committees and campaigns in March 2006, when it amended its rules to include paid online ads as a form of ‘‘public communication.’’

The full letter to the FEC can be read here.  RNLA Executive Director Michael Thielen warned against a rush to regulate political speech yesterday.

Well, on Tuesday, the Democrats attempted to follow this letter up with action. Representative Theodore Deutch of Florida introduced legislation targeting political speech, called the Campaign Sunlight Act of 2017.

Some of the key aspects of this bill include:

• (Sec. 2) Most political advertisements must be immediately filed with the FEC for documentation;
• (Sec. 2 (e)(2)) FEC would post the ad or advertisement or material on an online catalog or public website with full links and documentation of the facts being asserted ("sources cited");
• (Sec. 2 (e)(2)(D)) However, the FEC would be able to charge a fee--ultimately a tax--on political speech to fund the website; 
• (Sec. 3) This would apply to almost any effort to highlight or broadcast political positions, as "political advertisement" is defined as a communication covered by 52 U.S.C. § 30120(a) that refers to a clearly identified candidate in the year prior to an election.  

By doing this, Democrats are attempting to tax and regulate our political speech. This bill would further politicize the FEC by turning the commission into a taxing entity and library storing political speech made by groups that just expressing their First Amendment rights. 

The burdens this bill would place on speech are onerous. In addition to the existing (high) compliance costs for political speech, this would require entities and individuals to pay a fee for the privilege of engaging in one of their most important rights for a full year before the election: the right to talk about candidates. How quickly we forget that we fought a Revolution in part because an unaccountable government imposed a tax on our ability to speak.

The bill in its current form is likely to go nowhere. However, it is important to highlight the efforts of the Democrats and the left to quietly target and attempt to further regulate political speech. 

Political Speech At Risk, Again

RNLA members Brad Smith and Eric Wang coauthored an op-ed in The Hill debunking proposed legislation in Senate, which would have vast consequences if enacted. The piece looks at the "DISCLOSE Act of 2017" introduced by Senator Whitehouse (D-RI) which would restrict and heavily regulate political speech in America ahead of elections.

This is not the first introduction of a bill like this. Rather, it is just the latest version to drop into the "legislative hopper" in the wake of the 2016 Election and alleged Russian attempted interference with the presidential election. This 2017 version is just an opportunistic way to limit political speech at home.

Mr. Smith and Mr. Wang write:

Foreign interference with our elections is already illegal. Under existing law, foreign nationals and foreign corporations are strictly prohibited from making political contributions and independent expenditures in connection with elections for federal, state, and local office. . . Under existing law, foreign nationals and foreign corporations are strictly prohibited from making political contributions and independent expenditures in connection with elections for federal, state, and local office. However, the Federal Election Commission (FEC) has properly recognized that millions of Americans have not surrendered their right to political speech simply because they work at foreign-owned corporations. Thus, domestic subsidiaries of foreign companies like Anheuser-Busch, Bayer Health and Honda Motor, which are integral parts of the national and local economies, are permitted to engage in certain political activities, so long as those activities are directed by American citizens.

The Disclose Act of 2017 introduced by Whitehouse would upend the existing law by categorically prohibiting any political activity by a corporation or subsidiary if more than 20 percent of its voting shares are foreign-owned. This percentage ownership limit is a smokescreen, however, as the bill also would much more severely prohibit any corporate political activity if a foreign national “has the power to direct, dictate, or control the [corporation’s] decisionmaking process.” Because the owner of even one share of a publicly traded corporation generally has such power through a shareholders meeting or a proxy vote, this provision likely would strip away the political speech rights of any public company with even one foreign shareholder.

In a vacuum, perhaps we could be accused of over-reading this extreme result into the bill. But FEC Commissioner Ellen Weintraub outlined this very same legal approach in a New York Times opinion last year as a way to counteract the Supreme Court’s 2010 Citizens United decision, which permitted certain corporate political activity. Thirty-seven of the 38 Senate sponsors and co-sponsors of the latest Disclose Act who were in the chamber in 2014 also voted to amend the Constitution to override Citizens United. While that effort failed, it now appears those Senators are trying to use a mere bill to accomplish the same result, a maneuver that is clearly unconstitutional.

Aside from its foreign national provisions, the latest Disclose Act also contains numerous purported disclosure requirements (hence its name). But those disclosure provisions are also ploys to shut down political speech. For example, the bill would require any corporation (even one that has no foreign owners at all) making a “campaign-related disbursement” to disclose all of its “beneficial owners,” a term which likely includes any shareholder. For a company with tens of thousands of shareholders, including many who own shares through mutual funds and are unknown to the corporation, complying with this requirement would be practically impossible, and thus political speech would be essentially prohibited. . . .

This is yet another example of the left trying to politically capitalize on the alleged Russian attempted interference with our past election. Rather than directly addressing what allegedly occurred last year, the left would rather limit political speech overall, even from domestic sources and especially from those who may disagree with them.  Private entities such as Facebook are also changing their practices, which raises concerns about private regulation of political speech by unaccountable--but nonetheless powerful--brokers of communication in our modern era.

Left's Fear of Opposing Speech

RNLA Executive Director Michael Thielen wrote today citing examples of how the liberal establishment fears and tries to stifle speech by its opponents:

In 2017, in an effort led by Hillary’s former lawyer Marc Elias, establishment Democrats are now attacking Democrats on the Presidential Advisory Commission on Election Integrity for having the temerity to try to bring bipartisan balance to the investigation of the electoral system.  Elias implied that long-serving Democrat Secretary of State, Bill Gardner of New Hampshire, is not a real Democrat because he accepted an appointment to serve on the commission. 

Next, Elias’ ally Rick Hasen wrote an op-ed calling on another Democrat, Maine Secretary of State Matthew Dunlap, to resign from the commission because Hasen, like other liberals, has pre-determined that what the commission will do and say will be offensive and wrong before the commission has even begun its work.  Instead of wanting Democrats to have a seat at the table on President Trump’s commission — to hopefully represent the Democrats’ perspective and engage in an intellectual discussion for the benefit of the country as a whole — Hasen declares that Dunlap’s speech and participation would serve no purpose.  The speech of the commission must be opposed before it even occurs, because of its association with President Trump. These lions of the law, known for their skills of argument, are apparently fearful they will be unable to counter the findings if they allow the commission to do its work. . . .  

In New York, for example, liberals have declared war on 501(c)(3) nonprofit charities, requiring them to disclose their donors if the organization gives donations or in-kind support to 501(c)(4) groups that are lobbying in New York.  Disclosure of the 501(c)(3) organization’s donors is required even if its grant was to be used specifically for non-lobbying purposes.

Partisan Democrats like Marc Elias are naturally opposed to anything involving Republicans, but it is disappointing that Prof. Hasen has pre-judged the report of a commission that has not even begun its work, when he has been willing to point out the shortcomings of a flawed report that supports his policy preferences.  There is likely to be something in the Election Integrity Commission's report and findings that even liberals can agree with, but they are not willing to wait for the commission to do its work and see what it finds.  The commission is going to examine improper voter registrations, which is something even liberals and Democrats agree is a problem.

Instead of welcoming robust debate so that the best ideas are honed and prevail, a concept that is at the very core of our American system of government, modern liberals want to silence speakers who don't share their views.  This is a frightening impulse that should disturb both liberals and conservatives, especially when backed with the power of government as in New York.

Left Reveals View of FEC as Tool to Oppose Republicans

Over the long weekend, Democrat FEC Commissioner Ann Ravel resigned from the FEC.  We've catalogued Commissioner Ravel's partisanship, passion for regulating internet speech, questioning of citizens' loyalty based on their employer, charges of dysfunction aimed at Republican commissioners following the law, inconsistent application of the law, and many other questionable statements and actions during her tenure at the FEC.  

Of course, in her letter of resignation to President Trump and a 24-page exit report on "Dysfunction and Deadlock," she repeated the same trite campaign finance "reform" rhetoric perpetuated by the left despite being disproved by recent history:

Ravel’s resignation letter is filled with the same sort of tired Democratic rhetoric on campaign finance, demanding the overturning of Citizens United, pushing for expanded public (i.e., taxpayer) financing of political campaigns, and decrying the evils of “dark money.”  

Yet President Trump showed the complete intellectual bankruptcy of the campaign-finance “reform” movement in his stunning presidential-election victory. According to the FEC’s own data, among large donors ($2,000+), Hillary Clinton out-raised Trump $175 million to $27 million, a ratio of 6.5 to 1. Despite this, and the almost unanimous support she enjoyed from our media and cultural elites, Clinton couldn’t defeat Trump. Furthermore, Bernie Sanders, an eccentric and aging socialist with no establishment backing, came close to beating Hillary in the Democratic primary despite being outspent among those same $2,000+ donors by a ratio of more than 50 to 1. . . . 

The 2016 election was, for anyone who had eyes to see it, the most dramatic repudiation possible of the false notion that big donors determine the fate of our candidates or our politics. Given such facts, Ravel’s cri de coeur is more unintentional comedy than serious political analysis. But the media refuse to report it that way because to do so would be to repudiate their Democratic party allies, while casting a favorable light on the candidacy of Donald Trump, whom they loathe.​ 

But to keep the anti-Trump "reformers" from being too distraught about Ravel's departure, Ravel and her allies at the FEC have the strongly partisan, "resistance" altFEC Twitter feed, which, according to Ravel's friends at the Center for Public Integrity, "offers decidedly Ravel-esque, and often anti-Trump, critiques of the agency."  Recent tweets have been illuminating and have confirmed what many in the conservative community have long known and feared: that Democrats see "effective" speech regulation as a tool to oppose and hurt Republicans.

Even with the exit of Commissioner Ravel, no Republican or conservative speaker, especially those who must wade through the bureaucratic nightmare of an FEC complaint, can trust the FEC to act impartially while Democratic commissioners and "reform"-minded FEC staff sponsor explicitly anti-Republican messages and use campaign finance regulation as a tool to disadvantage Republicans.  Look for a post tomorrow on Ann Ravel's friend and ally at the FEC, Commissioner Ellen Weintraub.

Top 10 Republican Lawyer Posts for 2016

Here are the top 10 posts for 2016 from The Republican Lawyer blog.  These posts show how the left is trying to destroy the First Amendment and how out of control the Obama Administration was on matters of speech.  Furthermore, they prove once again how Donald Trump’s victory was also a victory for the Constitution. 

10. "Judge Sanctions DOJ Attorneys for Putting Politics Ahead of Truth, Ethics, and Justice."  We will be happily working to confirm Senator Sessions as Attorney General to fight the ethical abuses and politicization of the Department of Justice under President Obama. 

9. "Brennan Center: The Only Democrats in New York who Don't See Vote Fraud." Any honest Democrat in New York would admit to you that vote fraud is real and that voter ID is needed; just most know that partisan groups like the Brennan Center will attack them for saying it.

8. "Democrats Keeping the Zombie Vote Alive."  Colorado Secretary of State Wayne Williams stated:  "It is impossible to vote from the grave legally” but apparently Democrats do it anyway. 

7. "Former SEC Commissioners Reject Political-Disclosure Rulemaking."  Obama Administration efforts to force mandatory disclosure of corporate spending on political and other advocacy activities should be viewed as primarily political rather than economic and, as such, would not serve to help shareholders evaluate corporate performance or promote shareholder value

6. "FEC Democrats Vote to Censor Books, Documentary Films."  FEC Democrats voted to assert regulatory power over books and films.  That means they believe the FEC has the power to censor certain books and documentary films.

5. "Congress Shall Make No Law: Protecting the First Amendment from Attack."  Preventing attacks on the First Amendment can only be done through fighting back against speech suppressive activity.

4. "RNLA Explains What Open, Fair and Honest Elections Mean."  By “open,” we mean a process in which all sides can have “observers” and the process is determined by legislatures well in advance.  By “fair,” we mean election officials should be from both parties and they should administer the election process in an orderly, unbiased fashion.  By “honest,” we mean free from fraud.

3. "Reactions to Donald Trump's Potential Supreme Court Justice List." One of the most popular issues for Donald Trump was his list of potential Supreme Court nominees. 

2. "Leader McConnell Won the Fight on the Scalia Vacancy."  Thank you, Sen. McConnell, for your leadership on judicial nominations and fighting to protect the judiciary from judges who will legislate from the bench and not respect the rule of law and the role of the courts.

1. "A Great Justice, Ignored Because of his Race."  The left excludes Justice Clarence Thomas from the National Museum of African American History and Culture despite his remarkable and impactful 25 years on the court.  

Clinton Reiterates Support for Unrealistic and Dangerous Election "Reforms"

While the media focused on Bernie Sanders' endorsement of Hillary Clinton yesterday, Hillary made a speech following Sen. Sanders' endorsement that contained calls for liberal election and campaign finance "reform."  This is a familiar refrain from the Democrats this year, but Hillary's speech had some new points.  The "reforms" are in line with the draft of the "most progressive platform in the history of party" released by the Democrats earlier this week.

Hillary's "Reform" - Everyone has to disclose all donors
Campaign finance reform is a subject to which liberals and Democrats criticize the current laws while exploiting loopholes in the system they claim to deride.  The campaign finance laws are already so complicated that national campaigns with full-time staff, attorneys, accountants, and compliance personnel struggle to comply.  Requiring the disclosure of additional donors would not only violate those donors' constitutional rights but also pose immense practical challenges for campaigns and non-profits.

Hillary's "Reform" - Automatic voter registration for everyone when they turn 18
Hillary's proposal goes far beyond the mandatory voter registration systems that are being implemented in several states across the country.  Those systems are dangerous enough, but Hillary's proposal goes beyond registering people who interact with the DMV to automatically registering everyone when they turn 18.  While she did not go into details, her proposal appears to be mandatory, universal voter registration, not the systems currently being implemented that at least have underused opt-out mechanisms.

Hillary's "Reform" - 20 days of in-person voting in every state
This is where Hillary's speech covered some new ground.  Universal donor disclosure and universal mandatory registration are frequently discussed by today's radically liberal Democrat leaders.  20 days of in-person early voting would be an enormous expense and procedural hassle for the states that would have to implement it, and very few states already have such a long period of early voting in place (including none of Hillary's "home" states of Arkansas, Illinois, and New York).  Early voting does not increase turnout, can actually harm voters, and increases the risk of voter fraud.

Hillary's "Reform" - No one waits more than 30 minutes to cast a ballot
Short lines at the polls are a good goal, one that was a focus of the Presidential Commission on Election Administration and for which hard-working local election officials strive, but the federal government cannot simply dictate that no person must wait more than 30 minutes to cast a ballot.  Local election officials allocate scarce resources and personnel based on expected turnout, but they can not perfectly anticipate the innumerable things that could go wrong on election day, causing people to wait a long time to vote.  Long lines at the polling place are unfortunate and all local election officials should, and do, strive to shorten them, but Hillary ignores all the considerations and efforts of those officials when she unrealistically declares that no one should wait more than 30 minutes to vote.