In the News

The Hill: Protecting privacy of nonprofit donors is key to our democracy

By Luke Wachob

The IRS recently dealt a blow to efforts to violate nonprofit privacy when it announced that it would no longer collect the names and addresses of donors to many nonprofits. In response, critics are outraged that this policy change opens the door to foreign spending in our American elections. That charge could not be more off the mark.

Let us get a few things straight. 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.

The mass collection of donor names and addresses was all risk and no reward. The information was supposed to be confidential and redacted on publicly disclosed forms, but the information sometimes leaked out, at times to adversaries of an organization. The IRS made clear in its announcement that it does not use donor names to enforce tax laws, and nonprofits will still have to maintain records in case of an audit.

The Federal Election Commission, which is the agency actually in charge of enforcing campaign finance laws, did not have access to the donor names collected by the IRS. Nor is the Federal Election Commission a major player in preventing foreign spending in elections. The Treasury Department handles the bulk of that task through the Bank Secrecy Act.

It is easy for politicians to claim the IRS is undermining the ban on foreign spending in elections when government methods for policing foreign money are not commonly known. In reality, the IRS simply made a commonsense decision to end the mass collection of personal information it did not need and could not reliably protect.

New from the Institute for Free Speech

IFS Welcomes Senior Fellow Mike Columbo

The Institute for Free Speech is pleased to welcome Mike Columbo as a pro bono Senior Fellow.

Mike is Of Counsel in the Political Law Section of the California law firm of Nielsen Merksamer. In his practice, he supports and defends businesses, nonprofit organizations, trade associations, political committees, and individuals engaged in the political process. Mike defends regulatory enforcement actions and counsels groups on compliance with federal and state campaign finance, ethics, and lobbying rules. He has served as counsel to FEC Commissioner Lee E. Goodman, as a staff attorney at the Federal Election Commission, a white collar defense attorney, a prosecutor for the U.S. Attorney’s Office for the District of Columbia, and as a judicial law clerk.

Mike’s extensive experience has allowed him to see up close how complicated campaign finance regulations chill political speech.

“Americans who want to speak about today’s political issues and the work of our public servants are often shocked to learn of the vast web of federal, state, and local regulations that stand in their way – and the potential punishment they face for noncompliance,” said Mike. “Properly honored, the First Amendment should protect any citizen who advocates for or against legislation, regulations, or policies, or who applauds or criticizes the performance and positions of our public officials. Unfortunately, federal, state, and local laws make it virtually impossible to effectively participate in the political process without the assistance of an attorney. I am honored to join the Institute for Free Speech and look forward to contributing to its efforts to defend our First Amendment rights.”

As a Senior Fellow, Mike will assist IFS in analyzing legislation and regulatory proposals that affect political speech rights. He will also write op-eds and reports on the Institute’s behalf.

Supreme Court

Wall Street Journal: Kavanaugh Meets With Key Senate Democrat

By Byron Tau

Supreme Court nominee Brett Kavanaugh had his first meeting with a key Senate Democrat on Monday, as Republicans and their allies ratcheted up the pressure on the most vulnerable of their opponents up for re-election in GOP-leaning states.

Judge Kavanaugh spent about two hours on Capitol Hill behind closed doors with Sen. Joe Manchin, a West Virginia Democrat running for re-election in a state President Trump won by 42 percentage points in the 2016 election.

So far, other Senate Democrats have declined to meet with the nominee to succeed retiring Justice Anthony Kennedy, saying they wanted a commitment from Senate Republicans to turn over tens of thousands of pages of documents from Judge Kavanaugh’s career before they agreed to participate in the bipartisan courtesy meetings that are a traditional part of a Supreme Court nomination.

Last week, Mr. Manchin bucked his party and announced he would meet with Judge Kavanaugh. Mr. Manchin is also one of a handful of Senate Democrats who have expressed openness to supporting Judge Kavanaugh despite a fierce campaign from progressive activists urging the Senate to reject Mr. Trump’s nominee over his jurisprudence on hot-button issues like campaign finance, labor law, abortion rights and corporate power.

The Courts

Law360: Union Role Affirmed As 9th Circ. Rules On Calif. Advocacy (Paywall)

By Dorothy Atkins

The Ninth Circuit affirmed on Monday a decision to toss a suit challenging an amendment to the California labor code that requires unions representing public works employees to approve whether an advocacy group can receive employer wage credits, saying there’s “no free-floating First Amendment right” to amass funds to finance free speech.

Donor Privacy

HistPhil: The Historical Case For Charitable Donor Privacy

By Sean Parnell

Modern discussions of anonymous philanthropic giving tend to focus on supposed malefactors such as the libertarian brothers Charles and David Koch, progressive George Soros, or the general threat that so-called “dark money” poses to our free society. Often lost in these conversations is the simple recognition that charitable giving has long been done out of the public’s sight, and that there are very important reasons to respect and preserve this tradition…

It shouldn’t be too difficult to understand why a donor in Texas might want to remain anonymous when giving to an organization like Planned Parenthood, which if revealed could result in a backlash. The desire to avoid retribution for giving to unpopular causes is an obvious motivator for some philanthropists to keep their giving private, as demonstrated by President Andrew Jackson’s order to Postmaster General Amos Kendall in 1835 to make public the names of subscribers to anti-slavery mailings so that “every moral and good citizen will unite to put them in coventry, and avoid their society” (in those days, “subscribers” was often analogous to “donors”). In more recent history, anonymous giving was a substantial portion of the funding supporting the cause of gay rights…

Anonymous charitable giving has deep roots, and many philanthropists today cite reasons for preserving the privacy of their giving that would have been familiar to those giving centuries or even millennia ago. Against this history (to the extent critics of donor privacy are even aware there is a history) is mostly curiosity, and in some cases a desire to ostracize and punish those who give to the “wrong” charitable organizations, to put them in “coventry” as Andrew Jackson might have put it. We should all recoil at the thought of the state forcing disclosure of charitable giving that would, as The Times wrote nearly 140 years ago, make a philanthropist “a marked man” (or woman) facing persecution of any sort.

Congress

Roll Call: Foreign Lobbying Overhauls Stall as Manafort Goes to Trial

By Kate Ackley

Senators and House members from both parties have introduced at least a dozen bills to update the 80-year-old statute that governs foreign influence campaigns on U.S. soil…

Lawmakers behind the various foreign lobbying bills say they want to toughen up the Justice Department’s enforcement of the law to renew public confidence that Congress isn’t working at the behest of unknown international influences.

“It is incumbent on us to do that in light of all the new information we now have about attempts to interfere in our democracy and our elections,” said Rep. John Sarbanes, who proposed a lobbying overhaul bill on July 25 that would require lobbyists for foreign corporations to register as foreign agents.

As chairman of House Democrats’ Democracy Reform Task Force, the Maryland lawmaker is cataloguing numerous bills that relate to lobbying, campaign finance and foreign agent overhauls, including one from Ohio Democratic Rep. Marcy Kaptur that would ban political donations from nonprofit organizations that get at least 20 percent of their funding from foreign nationals…

Revising FARA has bipartisan support. Louisiana GOP Rep. Mike Johnson is the lead sponsor of the bill that made it out of the House Judiciary Committee. Senate Judiciary Chairman Charles E. Grassley of Iowa sponsored a nearly identical measure, which has not advanced in that chamber.

Another FARA overhaul bill from Senate Majority Whip John Cornyn of Texas and California Democratic Sen. Dianne Feinstein has also not advanced.

Corporate Speech

San Francisco Chronicle: Companies must align political contributions with core values

By Daniel T. Bross and Bruce F. Freed

The high-stakes November elections and a plummeting level of trust in core U.S. institutions provide an opportunity for responsible American corporations to speak out on key issues and rebuild trust. It starts with aligning political contributions with corporate values.

Businesses will come under intense pressure to make political contributions in an election year that will decide control of Congress and statehouses and potentially determine a president’s legacy. In today’s incendiary, polarized climate, business leaders would be smart to reset the way their companies engage in the political process. Business leaders need to take a thoughtful, values-based, principles-driven approach to campaign contributions that avoids suggestions of hypocrisy that could damage their reputation, brand and bottom line.

Today, a sea change in civic and political engagement by corporations is under way. CEOs have spoken out or resigned from presidential advisory councils after white supremacist violence in Charlottesville, Va., last year and a presidential response seen as inadequate and at odds with fundamental American values. Scores of CEOs are calling on the Trump administration to preserve the Deferred Action for Childhood Arrivals program. Companies were reaffirming their support for the Paris climate accord at the same time as the United States was withdrawing from it.

The Center for Political Accountability’s new study, “Collision Course: The Risks Companies Face When Their Political Spending and Core Values Conflict and How to Address Them,” argues that when companies contribute to political campaigns, they expose themselves to potential risk if policy outcomes clash with core company values and policies.

Online Speech Platforms

Washington Post: Zuckerberg was right about how to handle Holocaust deniers

By Flemming Rose

The free-speech challenge that Facebook and similar platforms with global reach face is immense. Since World War II and especially since the Cold War, more countries have enacted legislation -with references to history, religion, culture, social peace and security concerns- that undermines a common understanding of what free speech entails. This has made free speech advocacy increasingly difficult on the international level.

This is a paradox. Due to increased migration, rapid urbanization and developments in technology, more people are becoming virtual and physical neighbors. Yet while this increases the need for shared norms about free speech and its limits, the world seems to be moving in the opposite direction.

Facebook has over 2 billion members from every corner of the planet – all communicating within the context of vastly different legal systems, histories, cultures, religions and social norms – creating an overwhelming amount of competing priorities…

“It’s a form of anti-Semitism,” the respected Holocaust historian Deborah Lipstadt said in response to Zuckerberg’s comments. “It’s about attacking, discrediting and demonizing Jews.”

In spite of this, Lipstadt has never been in favor of criminalizing and banning Holocaust denial. She has argued that the best way to defeat deniers is through open exposure and establishing the facts. When British Holocaust denier David Irving lost a libel suit to Lipstadt and was later imprisoned in Austria, Lipstadt said she was “uncomfortable with imprisoning people for speech. … I don’t think Holocaust denial should be a crime. I am a free speech person. I am against censorship.”

Lipstadt is right. Bans and criminalization are simply not the most effective way to fight anti-Semitism.

Washington Post: Facebook says it has uncovered a coordinated disinformation operation ahead of the 2018 midterm elections

By Elizabeth Dwoskin and Tony Romm

Facebook said Tuesday that it had discovered a sophisticated coordinated disinformation operation on its platform involving 32 false pages and profiles engaging in divisive messaging ahead of the U.S. midterm elections.

The social media company that it couldn’t tie the activity to Russia, which interfered on its platform around the 2016 presidential election. But Facebook said the profiles shared a pattern of behavior with the previous Russian disinformation campaign, which was led by a group with Kremlin ties called the Internet Research Agency.

Facebook briefed congressional aides this week. A congressional aide said there’s no evidence that political candidates were targeted in the new disinformation effort, but that pages and accounts sought to spread politically divisive content around social issues.

“It’s clear that whoever set up these accounts went to much greater lengths to obscure their true identities than the Russian-based Internet Research Agency (IRA) has in the past,” Facebook said in a post. “We believe this could be partly due to changes we’ve made over the last year to make this kind of abuse much harder. But security is not something that’s ever done. We face determined, well-funded adversaries who will never give up and are constantly changing tactics. It’s an arms race and we need to constantly improve too.” …

“Today’s disclosure is further evidence that the Kremlin continues to exploit platforms like Facebook to sow division and spread disinformation, and I am glad that Facebook is taking some steps to pinpoint and address this activity,” said Sen. Mark Warner (D-VA). “I also expect Facebook, along with other platform companies, will continue to identify Russian troll activity and to work with Congress on updating our laws to better protect our democracy in the future.”

Twitter Blog: Measuring healthy conversation

By Vijaya Gadde and David Gasca

Led by Dr. Rebekah Tromble, Assistant Professor of Political Science at Leiden University, along with Dr. Michael Meffert at Leiden, Dr. Patricia Rossini and Dr. Jennifer Stromer-Galley at Syracuse University, Dr. Nava Tintarev at Delft University of Technology, and Dr. Dirk Hovy at Bocconi University, this project will develop two sets of metrics: how communities form around political discussions on Twitter, and the challenges that may arise as those discussions develop.

“In the context of growing political polarization, the spread of misinformation, and increases in incivility and intolerance, it is clear that if we are going to effectively evaluate and address some of the most difficult challenges arising on social media, academic researchers and tech companies will need to work together much more closely. This initiative presents an important and promising opportunity for Twitter and our team of researchers to share expertise and work on solutions together,” Tromble said…

Professor Miles Hewstone and John Gallacher at The University of Oxford, in partnership with Dr. Marc Heerdink at the University of Amsterdam, will be studying how people use Twitter, and how exposure to a variety of perspectives and backgrounds can decrease prejudice and discrimination.

“We’re very excited about the opportunity to work with Twitter on investigating the important social challenges of a digitally connected world,” said Miles Hewstone, Ph.D., Professor of Social Psychology at Oxford University. “Evidence from social psychology has shown how communication between people from different backgrounds is one of the best ways to decrease prejudice and discrimination. We’re aiming to investigate how this understanding can be used to measure the health of conversations on Twitter, and whether the effects of positive online interaction carry across to the offline world.”

Independent Groups

Politico: Tom Steyer’s $110 million plan to redefine the Democrats

By Edward-Isaac Dovere

Tom Steyer has set plans to spend at least $110 million in 2018, making the billionaire investor the largest single source of campaign cash on the left and placing him on a path to create a parallel party infrastructure with polling, analytics and staffing capabilities that stand to shape and define the issues the party runs on in November…

Yet Steyer’s oversize role also stands to position him squarely against Democratic Party leadership, which has shown little appetite this fall for pursuing one of his signature causes: impeachment.

Unlike the $80 million being spent by Michael Bloomberg, Steyer will put his cash toward building out NextGen America and Need to Impeach, his two growing political organizations, as well as funding clean-energy ballot initiatives in Arizona and Nevada. Steyer has already doubled his initial $20 million investment in Need to Impeach to $40 million and has not ruled out adding more.

Steyer has also already dropped over $5 million into his For Our Future PAC, and he is expecting more outlays on behalf of individual candidates – such as the $1 million he put behind Florida gubernatorial candidate Andrew Gillum – though likely not in any of the remaining primaries…

In just the last decade, Steyer skyrocketed to become the Democratic Party’s biggest donor, only to leave that behind to invest instead in his own organizations and causes, to the irritation of party leaders – particularly those who worry that he’ll hurt them politically by talking up impeachment. 

Candidates and Campaigns

Wall Street Journal: Republican Women Seek to Keep Numbers From Dwindling in the House

By Kristina Peterson

In this election cycle, 120 female GOP candidates filed to run for House seats, compared with 47 in the 2016 elections, said an aide to Rep. Elise Stefanik (R., N.Y.), the first female recruitment chair of the House Republicans’ campaign arm.

“Given in particular some of the retirements, I think it’s really important to make sure our numbers tick up,” Ms. Stefanik said…

Defending Main Street, the super PAC affiliated with the Republican Main Street Partnership, a Washington, D.C.-based group that champions pragmatic Republicans, is spending around $100,000 on digital and television ads that went on air earlier this month touting Mrs. Nickloes. And Winning for Women, a group that supports female GOP candidates, began airing digital ads backing her on Friday.

As Republicans, “this was our opportunity to help a woman, a conservative woman, come up through the primary,” said Sarah Chamberlain, president of Defending Main Street. Mrs. Nickloes is the first female candidate to receive two boosts from the group: first, contributions from its members and donors and later ads funded by its super PAC.

Politico: ‘It’s a significant shift in our thinking’: Business takes fresh look at Democrats

By Lorraine Woellert and Marianne LeVine

The American Bankers Association this month began airing ads in support of candidates for the first time, including Democrats Sen. Jon Tester of Montana and Rep. Lou Correa of California. The International Franchise Association has more than doubled its support to Democrats this cycle, with 27 percent of its donations going to centrists in the party. The U.S. Chamber of Commerce, which leans heavily Republican, endorsed Democratic Rep. Josh Gottheimer of New Jersey over Republican John McCann, who has the support of former Trump aide Sebastian Gorka…

“Republicans aren’t the only people who have great ideas for business,” International Franchise Association President Robert Cresanti said. “We really need more members of Congress that are in the middle and are willing to listen to both sides.”

“It’s a significant shift in our thinking,” Cresanti said. “Before, it was you’re either with us 100 percent of the time or you’re against us.”

Smaller players, too, said they are rethinking their midterm strategies. Aaron Lowe, senior vice president of regulatory and government affairs at the Auto Care Association, said his group will likely focus its spending on members of committees that oversee trade. The Household & Commercial Products Association re-established its PAC this cycle and will back “candidates from both parties that want to legislate in a bipartisan matter,” President Steve Caldeira said.

Trump Administration

Wall Street Journal: Trump Attacks Koch Brothers After GOP Donors Shy Away From Candidate

By Julie Bykowicz

President Trump on Tuesday lit into Charles and David Koch, some of the Republican Party’s top donors, in a series of tweets, after they said over the weekend they wouldn’t financially back the party’s candidate for a North Dakota Senate seat.

“The globalist Koch Brothers, who have become a total joke in real Republican circles, are against Strong Borders and Powerful Trade. I never sought their support because I don’t need their money or bad ideas,” Mr. Trump wrote Tuesday morning. He went on to say that he has “made them richer,” referring to tax cuts he signed into law late last year and unspecified “Regulation Cuts” his administration has undertaken.

“Their network is highly overrated, I have beaten them at every turn,” he continued in a second tweet. “They want to protect their companies outside the U.S. from being taxed, I’m for America First & the American Worker — a puppet for no one. Two nice guys with bad ideas. Make America Great Again!”

Lobbying

Daily Beast: Robert Mueller Targeted Two Lobbying Firms. One Is Thriving in Trump’s D.C.

By Lachlan Markay

When special counsel Robert Mueller indicted Donald Trump’s former campaign chairman Paul Manafort in the fall of 2017, he implicated two prominent Washington, D.C. lobbying powerhouses as being complicit in a scheme to essentially hide foreign influence-peddling.

Mercury Public Affairs and the Podesta Group appeared, in that moment, to be directly embroiled in the biggest scandal to hit K Street since the days of Jack Abramoff. But in the year that has followed, the two lobbying shops have gone in remarkably different directions.  

The States

Baltimore Sun: Baltimore Mayor Pugh signs off on two charter amendments for November ballot

By Talia Richman

Baltimore voters will decide this fall whether the city should allow public funding of local election campaigns…

If voters support it, the city will create a Fair Elections Fund and a commission to control it.

The city would provide eligible candidates with matching public funds for small-dollar donations. The charter amendment doesn’t specify where the money would come from. The fair election fund commission would be tasked with recommending revenue sources once it’s created.