Supreme Court
New York Times: Supreme Court Wary of Donor Disclosure Requirement for Charities
By Adam Liptak
The Supreme Court on Monday seemed skeptical of California’s demand that charities soliciting contributions in the state report the identities of their major donors.
A majority of the justices appeared to agree that at least the two groups challenging the requirement — Americans for Prosperity, a foundation affiliated with the Koch family, and the Thomas More Law Center, a conservative Christian public-interest law firm — should prevail in the case.
It was less clear whether the court would strike down the requirement entirely for all charities as a violation of the First Amendment’s protection of the freedom of association. And the justices gave few hints about whether their ruling, expected by June, would alter the constitutional calculus in the related area of disclosure requirements for campaign spending.
Justice Stephen G. Breyer repeated concerns expressed in supporting briefs that the case could have broad implications. “This case is really a stalking horse for campaign finance disclosure laws,” he said.
In the context of elections, the Supreme Court has supported laws requiring public disclosure. In the Citizens United campaign finance decision in 2010, the court upheld the disclosure requirements before it by an 8-to-1 vote. In a second 8-to-1 decision that year, Doe v. Reed, the court ruled that people who sign petitions to put referendums on state ballots do not have a general right under the First Amendment to keep their names secret.
If the approach of the groups challenging California’s requirement for charities were adopted, Justice Sonia Sotomayor said, “I don’t see how the public disclosure at issue in Doe would have survived.”
Election Law Blog: Thoughts on Today’s Oral Argument in the AFP v. Bonta Case in the U.S. Supreme Court: California Will Lose, But the Question is How It Will Lose and What the Case Will Mean for Campaign Finance Disclosure
By Rick Hasen
I just listened to the oral argument in this case (listen here). You can read my tweet thread. Here is my general takeway:
California is likely to lose. It collected donor information for law enforcement purposes but allowed the information to leak. Even the liberal Justices Kagan and Sotomayor seemed concerned about this, and will likely either vote that AFP wins its “as applied” challenge or will vote to remand the case to reconsider the as applied challenge.
But the question of where the Court’s conservative supermajority is likely to go in this case is the important one. The Court could apply strict scrutiny in this case and strike down the law facially (applied to everyone, not just to the plaintiffs), which would lead not only to California losing but calling into question the constitutionality of all campaign finance disclosure laws.
That result seems unlikely, as I believe only Justice Thomas (and perhaps Alito and Gorsuch) will be willing to go that far. But that’s mostly about appearances. It could well be that the other conservatives (Roberts, Barrett, and Kavanaugh) will say they are applying the mid-level “exacting scrutiny” and strike down the law facially. They could well pull the same stunt Roberts pulled in McCutcheon, redefining exacting scrutiny so it looks much more like strict scrutiny. That will lead to more campaign finance disclosure laws being struck down by the Court’s but without a dramatic, Citizens United-type blockbuster holding. It’s Roberts’ style, and we could well see it here.
The Hill: A freedom on which all can agree; will the Supreme Court?
By John Bursch
If the California attorney general had difficulty obtaining a suspected fraudulent charity’s Schedule B, the AG can simply ask the IRS. The IRS even has an expedited process to give this information to states more quickly, but the AG’s Office refused to allow the IRS to conduct a three-day audit of California’s security system, which was necessary to participate in that program.
The reason for that refusal seems dangerously clear: the California attorney general’s office has leaked confidential donor information like a sieve. In 2009, it published nearly 1,800 Schedule Bs online. At one point, anyone could see all the Office’s Registry of Charitable Trusts’ confidential documents by altering a single digit at the end of a URL. Other California government agencies have leaked private information as well, including California’s Employment Development Department, Department of Motor Vehicles, Department of Insurance, and Department of Child Support Services.
Given California’s careless handling of private information, its demand for donor data threatens to decrease charitable giving, particularly to charities that work on sensitive issues. That’s why organizations ranging from the ACLU, to the Cato Institute, to the People for the Ethical Treatment of Animals (PETA) have filed briefs that agree with my employer (Alliance Defending Freedom)’s merits brief on behalf of the Law Center, urging the court to strike down California’s dangerous regulation.
The Courts
The Hill: College soccer player says her coach kicked her off team for refusing to kneel
By Adam Barnes
A former Virginia Tech women’s soccer player is suing a former coach for allegedly benching her because she did not want to take a knee during a pregame protest in September 2020.
Congress
Wall Street Journal: Goodbye Section 230, Hello Liberty
By Bill Hagerty
For too long Americans have watched Big Tech trample on the principles of the First Amendment—free speech, freedom of thought and belief, free assembly and the open exchange of ideas. As more information is filtered through online platforms, the First Amendment is becoming a dead letter. That’s why I’m taking action to hold these corporations accountable.
Today, I’m introducing the 21st Century Foundation for the Right to Express and Engage in Speech Act (or the 21st Century FREE Speech Act), which would restore the Bill of Rights—rather than the whims of big companies—as the guide for what Americans can say or hear in today’s public square.
The modern public square is dominated by ubiquitous platforms facing little meaningful competition. Instead of being accountable to consumers or voters, the companies that dominate communication today use opaque, inconsistent practices to control the information Americans get to see and discuss. As Justice Clarence Thomas noted in a recent Supreme Court opinion, common carriers—such as trains or phone networks, which are essential to everyday goings-on, connecting people and information—have historically been subject “to special regulations, including a general requirement to serve all comers” without discrimination. The same logic should apply today to Big Tech.
AP News: Golden bill would ban spending by corporate PACs
Members of Congress from Maine and California have submitted a proposal to ban spending by corporate political action committees.
Democratic Reps. Jared Golden of Maine and Josh Harder of California said the PACs have too much influence on electoral politics. Maine Citizens for Clean Elections found that corporate PACs have spent more than $90 million on Maine elections alone since 2008, Golden said.
The congressmen said corporate PACs gave more than $400 million to federal campaigns during the 2020 election system. They said that was the most of any type of political action committee.
Golden said the ban is necessary because “government should be responsive to the people, not corporate special interests.”
ODNI
Politico: Intelligence community creating hub to gird against foreign influence
By Martin Matishak
The nation’s top spy agency has begun work to establish a hub to combat hostile foreign meddling in U.S. affairs, following multiple assessments that Russia and other countries have sought to sway elections and sow chaos among the American people.
The Office of the Director of National Intelligence will create the Foreign Malign Influence Center “in light of evolving threats and in support of growing policy and congressional requirements,” an agency spokesperson said Monday in a statement to POLITICO.
The center will be a clearinghouse for intelligence related to malign influence from multiple government agencies and provide assessments and warning of such activities.
Free Speech
City Journal: Capitalist Havens of Free Speech
By Steven Malanga
Even before Twitter banned Donald Trump and Amazon stopped hosting the social media site Parler on its web services, free-speech controversies had been regularly erupting at newspapers, magazines, websites, and book publishers. Notable recent cases involved high-profile journalists decamping from their established media homes to independent platforms where they could express themselves freely…
None of these voices has faced any threat to their speech from government, which is, of course, what the First Amendment to the U.S. Constitution protects citizens from. Instead, they have confronted a pervasive new menace: a cultural shift in key elite institutions, especially the media (including social media) and academia, which have made many recently acceptable, even anodyne, opinions suddenly forbidden. The punishment for expressing these beliefs is to get pushed out of those institutions and lose one’s livelihood. Yet new platforms like Substack are emerging as an antidote to such cultural and economic banishment, even if they were not originally designed to become free-speech havens but rather a means of expanding economic opportunity—to give people more choices in how to earn a living.
Glenn Greenwald: ACLU Again Cowardly Abstains From an Online Censorship Controversy: This Time Over BLM
How is it possible that the ACLU is all but invisible on one of the central free speech debates of our time: namely, how much censorship should Silicon Valley tech monopolists be imposing on our political speech? As someone who intensively reports on these controversies, I can barely remember any time when the ACLU spoke up loudly on any of these censorship debates, let alone assumed the central role that any civil liberties group with any integrity would, by definition, assume on this growing controversy.
In lieu of the traditional, iconic and organization-defining willingness — eagerness — of the ACLU to defend free speech precisely when it has been most controversial and upsetting to liberals, what we now get instead are cowardly, P.R.-consultant-scripted excuses for staying as far away as possible: “We don’t have anyone who is closely plugged into that situation right now so we don’t have anything to say at this point in time.” That sounds like something Marco Rubio’s office says when asked about a Trump tweet or that a corporate headquarters would say to avoid an inflammatory controversy, not the reaction of a stalwart civil liberties group to a publicly debated act of political censorship.
The States
Florida Politics: House prepped for vote to limit citizen initiative campaign donations
By Renzo Downey
The House could soon vote to limit donations to citizen initiatives. An affirmative vote would send the measure to the Governor’s desk.
The measure (SB 1890) would cap donations to political committees backing proposed constitutional amendments at $3,000 during the signature gathering process. That’s the same restriction placed on donations to statewide candidates.
Estero Republican Sen. Ray Rodrigues, who filed the bill, has said wealthy donors contributing to campaigns to amend the Florida Constitution is a new phenomenon. Palatka Republican Rep. Bobby Payne, who sponsored the House version (HB 699), shared those sentiments.
“We think the ballot initiative process that originated back in 1967 should be driven by citizens of the state and not by those that have larger pocket books that can buy their way to the ballot initiative,” Payne told members on Friday.
In the past, some donors have poured millions of dollars into political committees backing ballot initiatives. Republican lawmakers and the Florida Chamber of Commerce contend the proposal is needed to stop deep-pocketed donors, including out-of-state donors, from financing ballot initiatives on policy issues that should not be in the state constitution.
At least one lobbyist has likened the measure the “anti-John Morgan bill” after the Orlando-based lawyer who has been the main driver of several successful ballot initiatives, including the recent minimum wage increase and the legalization of medical marijuana.
There’s no limit on donations to such committees now, and other than for committees backing signature-gathering efforts, the bill doesn’t propose one.
Newsday: Nassau bill would require occupants of county historic homes to disclose donations
By Scott Eidler
Occupants of historic homes owned by Nassau County, many of them in secluded locations on the North Shore, soon may have to disclose their campaign contributions to public officials as legislators seek greater oversight of county real estate deals…
Republican county legislators say they are trying to close a “loophole” in county law: Smith & DeGroat Real Estate, which handles the transactions, must disclose its campaign contributions, but renters don’t have to.
A bill up for a vote in the Nassau County Legislature Monday would require individuals who live or work at properties owned by the county to disclose political campaign contributions.
Republican legislators introduced the bill after discovering a woman made a $20,000 contribution to County Executive Laura Curran on the same day the legislature granted the woman and her husband an occupancy permit for a mansion on a historic Sands Point estate.
San Jose Spotlight: San Jose mulls major changes to campaign finance law
By Lloyd Alaban
San Jose lawmakers are looking to overhaul the city’s campaign finance regulations in hopes of avoiding more ugly political contests in 2022.
Councilmember Sergio Jimenez introduced a proposal, updated from an earlier version discussed in November, that includes a requirement that campaign committees file mailers with the city clerk, an online repository for all campaign ads, more detailed disclosures for campaign literature and a cap on contributions from “corporations with conflicts of interest.” …
Although the City Council advanced the proposal, a few members, including Mayor Sam Liccardo and Councilmember Matt Mahan, shared concerns that its language wasn’t clear enough, and would target a specific set of groups who donate to local campaigns.
“Deciding that only folks who might be ideologically on one side can’t give, but folks on the other side can give … I’m concerned about the way that it seems to be unbalanced,” Liccardo said.
The city has strict rules on donations and spending for campaigns controlled by candidates. But there are few regulations for committees and campaigns not controlled by candidates, such as those led by the South Bay Labor Council, the San Jose Police Officers’ Association and the now-disbanded SVO political action committee, which pumped hundreds of thousands of dollars into the last election cycle…
Jimenez’s proposal includes a concept for a publicly-financed election, similar to systems in cities like Seattle.
