In the News
Library of Law and Liberty: Taking Down D’Souza and Other Abuses of Power
By Bradley A. Smith
In 2004 leftwing filmmaker Michael Moore released his film Fahrenheit 9/11, a searing attack on the legitimacy of George Bush’s election to the presidency in 2000, and his handling of events before, during, and after the terrorist attack of September 11, 2011 on the World Trade Center. Moore was unequivocal in his stated hope that the movie would “help unseat a president.”
Fahrenheit 9/11 was produced by Moore’s production company Dog Eat Dog Films, a corporation. At the time – before the Supreme Court decision in Citizens United v. Federal Election Commission—it was illegal for corporations to spend money “in connection with any election to any political office,” and illegal for an officer of a corporation to consent to such an expenditure.
Imagine if fourteen months after the election, Moore had been indicted by a Bush-appointed federal prosecutor for violating the prohibition on corporate spending. Imagine if Moore was arrested, cuffed, criminally charged for his activities, had his passport confiscated, and bail set at $500,000–what would have been the reaction from the America’s liberals? Of the press? Of Senator Barack Obama?
Independent Groups
Wall Street Journal: Wisconsin Punch Back
Editorial
The Wisconsin prosecutors conducting a secret criminal probe of conservative political groups were warned last month that they were inviting a federal lawsuit. On Monday they got one, as two of their targets charged the prosecutors with violating their civil rights. Sometimes the only way to stop a bully is to punch back.
The lawsuit was filed in federal district court in Milwaukee by David Rivkin and the BakerHostetler law firm on behalf of the Wisconsin Club for Growth and its director Eric O’Keefe. The suit names four Milwaukee prosecutors and two others, including special prosecutor Francis Schmitz and Milwaukee District Attorney John Chisholm, who have conducted a secret grand jury-like investigation called a ” John Doe ” into Mr. O’Keefe, the Club for Growth and other conservative groups that are allies of Wisconsin Governor Scott Walker.
The suit charges that prosecutors have spent four years attempting to harass and silence groups whose politics they dislike. Much of the suit is redacted because Wisconsin’s John Doe statute keeps the charges and the names of the targets under seal. But we’ve seen copies of the subpoenas, which include kitchen-sink demands for documents and communications. And we know that prosecutors and police conducted dawn raids that ransacked homes of some targets.
ACLU: ACLU Defends Nonprofit Free Speech
By Gabe Rottman
Political speech regulation remains an incredibly complex and contentious issue in our government, and there is plenty of legitimate concern about the recent influx of big, outside money in modern campaigns.
Those concerns, however, must be balanced against our crucial First Amendment rights to free speech and assembly. Hopefully we can all agree that any regulation to address “big money” must respect these values.
Late last year, the IRS proposed new political speech rules for certain nonprofits, which strike the wrong balance. Presumably an attempt to crack down on tax-exempt groups spending money to support or oppose candidates without disclosing theirdonors, the rules would likely do little to address that phenomenon and could seriously chill legitimate issue advocacy from nonprofits on the right and left, particularly smaller ones. We said as much in extensive comments submitted this week to the IRS.
Wall Street Journal: Camp: IRS Targeted Established Conservative Groups for Audits, Too
By John D. McKinnon
A Republican House committee chairman said the Internal Revenue Service targeted tax-exempt conservative groups for audits, widening the scope of GOP ire over the agency’s oversight of political activities.
House Democrats pushed back, saying Republicans were seeking to use the IRS controversy to score political points with their conservative base in an election year.
The IRS has been under scrutiny since an inspector general’s report last May found that the agency had targeted conservative groups for lengthy and heavy-handed review of their applications to become tax-exempt organizations under section 501(c) 4 of the tax code. The controversy led to significant management shakeups at the IRS and generated a slew of congressional investigations, some of which are still going on.
The Hill: McConnell bill prevents IRS ‘harassment’ of political groups
By Ramsey Cox
“Instead of putting safeguards in place to protect our civil liberties, the Obama administration is now dragging the IRS back in the opposite direction,” McConnell said. “It’s now pushing a regulation that would actually entrench and encourage the harassment of groups that dare to speak up and engage in the conversation.”
Currently, 501(c)(4) organizations can engage in political activities on a limited basis, as long as their primary activity is the promotion of social welfare. In November, the IRS proposed new regulations that would no longer allow these organizations to engage in political activity and receive tax-exempt status. The final rules would take effect before the 2014 elections.
The Stop Targeting of Political Beliefs by the IRS Act would delay the implementation of the rules for one year. The House Ways and Means Committee is considering companion legislation.
The Advocate: Super PAC fights for ability to raise unlimited contributions
By Marsha Schuler
The organizer of a super PAC formed to support U.S. Sen. David Vitter argues that it should not be subject to Louisiana campaign contribution limits because it is operating independent of Vitter.
But the organizers of the super PAC — the Fund for Louisiana’s Future — have a direct tie to Vitter’s political operations. Two of the people paid to raise money for the super PAC are also paid by Vitter’s campaign operations to raise money for the candidate.
It’s an arrangement that some elections experts say could invite a review by the Federal Elections Commission, called FEC.
Chicago Sun Times: Signs say IRS targeted tea party
By STEVE HUNTLEY
When the IRS revelations broke, Obama promised a full investigation. Yet Cleta Mitchell, an attorney for a number of tea party and conservative groups targeted by the IRS, testified, “None of my clients have received a single contact from the FBI, the DOJ [Department of Justice] or any other investigator regarding the IRS scandal.”
She detailed for a House oversight subcommittee several areas worthy of criminal investigation into the taxman’s singling out conservative groups for special scrutiny and intrusive questioning regarding their nonprofit tax status.
SCOTUS/Judiciary
More Soft Money Hard Law: On the Campaign Finance Laws and Lawyers
By Bob Bauer
A federal judge once opined that the federal campaign finance laws were hard to follow, and the same perplexity has been expressed by the Supreme Court—directly,in the course of oral argument, and somewhat less directly in an opinion of the court. See Citizens United v. FEC, 558 U.S. 310, 334-35 (2010) (Kennedy, J.). Conflicts over the constitutionality of various enactments and rules are common. And much has been written about the use and misuse of the heavily regulated legal process to harass, wear down or disgrace political adversaries.
Notwithstanding all of that, the beleaguered participant in the political process looking for legal advice can run into trouble when shopping for free or discounted legal services. Under federal and numerous state laws, these services are a contribution, like any other “in-kind” contribution, with some exceptions. A fully individual volunteer effort is typically permissible. Or a firm can donate but not bill for the time of its lawyers, provided the services are solely for the purpose of assuring compliance with the law and the value of the services is disclosed. As soon as life becomes more complicated, getting the help of a lawyer runs into contribution limits or restrictions on the sources of funds.
