In the News
The Hill: Braun-McConnell bill would protect Americans from IRS surveillance
By Luke Wachob
Last year, the IRS won praise for ending the controversial practice of collecting the names and addresses of Americans who support nonprofit groups without receiving a tax deduction in return. The IRS admitted it didn’t use the information and said securing it was an unnecessary burden on the agency…
Some politicians were furious. They want the IRS to monitor citizens who support groups that criticize them or oppose their agendas. Now they have proposed legislation that would repeal the IRS privacy reform and resume the mass collection of Americans’ personal information. It’s one dangerous provision buried deep in Democrats’ H.R. 1 bill to rewrite the rules for elections, campaigns, and political speech.
In response, Sens. Mike Braun (R-Ind.) and Mitch McConnell (R-Ky.) introduced legislation to protect the IRS reform and keep the agency out of political mischief. The “Don’t Weaponize the IRS Act” (S. 1777) currently has 44 cosponsors. While no Democrat has yet supported the bill, it would protect nonprofits across the political spectrum, regardless of their views.
The proposal embodies a simple but key principle: The IRS is not the speech police, nor should it be. Letting IRS agents pore over databases of Americans who support social causes is asking for trouble.
Federalist Society (Audio): H.R. 1, the For the People Act, Explained
Teleforum audio from May 26, 2021 now available
Mr. Bradley A. Smith, Chairman and Founder of the Institute for Free Speech and one of the nation’s foremost experts on campaign finance law [joined] us to discuss some of the more important provisions and implications of H.R.1/S. 1, the For the People Act.
[Listen on Apple Podcasts.]
[Listen on Google Play Store.]
By Jordan Howell
The United States District Court for the Northern District of Georgia, Atlanta Division, ruled earlier this week that plaintiff Abby Martin’s case against Georgia Southern University administrators for violating her expressive and due process rights may proceed. The ruling signals that a Georgia statute prohibiting state entities from entering contracts with individuals or companies engaged in a boycott of Israel violates the First and Fourteenth Amendments, the latest in a string of defeats for state laws targeted at anti-Israel boycotts…
In recent years, many states have passed laws similar to Georgia’s that seek to prohibit awarding state contracts to BDS advocates. However, a surge in court rulings have held anti-BDS laws to be unconstitutional in Arizona, Kansas, Texas, and Arkansas.
Beyond our long-standing position that boycotts of Israeli academic institutions could harm academic freedom both here in the United States and abroad, FIRE takes no position on the BDS movement.
We have, however, an equally long-standing position that legislative action targeted at BDS proponents is unconstitutional, and FIRE has submitted amicus briefs to federal courts arguing that anti-BDS statutes like the one at issue in Martin’s case violate the First Amendment. For example, here’s our brief to the United States Court of Appeals for the Eighth Circuit, filed with the Institute for Free Speech, arguing that Arkansas’ anti-BDS law violated the First Amendment. The Eighth Circuit agreed, issuing a ruling concluding as much back in February.
ICYMI
Institute for Free Speech Welcomes Two New Attorneys
The Institute for Free Speech today announced the additions of Senior Attorney Julie Smith and Attorney Martha Astor. Smith and Astor will help the Institute take on additional cases and expand our legal work to defend and advance free political speech.
“We are pleased to welcome Julie Smith and Martha Astor to our team. Julie brings impeccable credentials and extensive experience as a litigator, both in the private sector and in government. Martha worked with us as a summer fellow during law school and we are happy to have her back,” said Institute for Free Speech President David Keating.
Julie Smith joins the Institute for Free Speech as Senior Attorney after serving as Vice President at Cause of Action Institute, where she litigated against federal government overreach and argued before U.S. Courts of Appeals. Previously, Smith was Of Counsel at the law firm Willkie Farr & Gallagher and was a Partner at Foley & Lardner. She also served as a Senior Counsel in the Securities and Exchange Commission’s Division of Enforcement and Office of General Counsel. Smith earned her J.D. from Harvard Law School and was an editor of the Harvard Law Review…
Martha Astor rejoins the Institute for Free Speech after serving as a staff attorney at the Goldwater Institute since 2019. Astor was previously a summer legal fellow at IFS in 2017, where she contributed to several amicus briefs, including the Institute’s brief to the Supreme Court in Carpenter v. United States. Astor earned her J.D. from Notre Dame Law School in 2019 and has been an Adjunct Professor and Clinical Instructor at Northern Arizona University.
Congress
The Hill: Schumer to force vote on sweeping election overhaul next month
By Jordain Carney
Senate Majority Leader Charles Schumer (D-N.Y.) said Friday he is planning to force a vote next month on a sweeping bill to overhaul elections, setting the stage for a high-profile clash over the filibuster.
In a letter to the Democratic caucus, Schumer said he would bring the For the People Act, also known as S. 1 and H.R. 1, to the floor in June. Though he’s previously said it would get a vote before the August recess, Friday marks the first time he’s tied it to a hard timeline.
“In the last week of the June work period, the Senate will vote on S.1, the For the People Act, legislation that is essential to defending our democracy, reducing the influence of dark money and powerful special interests, and stopping the wave of Republican voter suppression happening in the states across the country in service of President Trump’s Big Lie,” Schumer wrote.
Schumer told reporters it would come up the week of June 21. The June work period runs through June 25.
The Senate Rules Committee earlier this month deadlocked on the bill in an hours-long, heated markup, with Republicans unanimously voting against the legislation…
“The June work period will be extremely challenging. I want to be clear that the next few weeks will be hard and will test our resolve as a Congress and a conference,” Schumer wrote in Friday’s letter.
New York Times: On Voting Rights, Biden Prefers to Negotiate. This Time, It Might Not Be Possible.
By Katie Rogers
With little likelihood of [the For the People Act] winning enough Republican support to meet the 60-vote threshold necessary for passage, Mr. Biden now faces a choice: Scale back his ambitions for addressing voting rights or abandon hopes of a bipartisan compromise and instead seek to jam it through on a partisan vote in the equally divided chamber by further rolling back one of the foundations of Senate tradition, the filibuster.
Along with his push for a bipartisan compromise on his infrastructure proposal, it is the clearest choice he has faced yet between his instinct to negotiate and confronting the realities of Senate partisanship in 2021.
Mr. Biden always preferred private strategy sessions to showy displays…
But Mr. Biden was also unafraid of openly challenging political adversaries — often on the basis of their past work to curb civil rights or voting access — and he could be effective at bringing moderate Republicans around to his way of thinking…
Many Democrats, who have hit a wall in their negotiations to win Republican backing for the For the People Act, are hoping to use G.O.P. opposition as an argument for eliminating a legislative filibuster and allowing the bill to pass with a simple majority. But at least one Democrat, Senator Joe Manchin III of West Virginia, remains opposed to the idea, potentially scuttling it…
Mr. Biden has yet to say publicly how he intends to proceed. He has avoided getting involved in negotiations over the legislation. But the president has also been reluctant to come out in public support of eliminating the filibuster, especially since Mr. Manchin — a vital vote for nearly all of the president’s priorities — has so far opposed doing so, effectively taking that option off the table for now.
The Fulcrum: How Congress can help keep threats to our elections at bay
By David Levine
With the Senate’s version of the For the People Act at a standstill, and no clear path to passage in sight, Congress should narrow its focus to the individual components of S 1 (as it’s also known) that have a better chance of becoming law, to help ensure our adversaries do not successfully interfere in future elections. Such a bill should focus on three policy domains that appear more ripe for bipartisan action: 1) limiting the influence of money in politics; 2) modernizing election infrastructure to increase security; and 3) preventing foreign interference in elections.
Each of these domains contains previously introduced pieces of legislation that originally had bipartisan support. This includes…the Honest Ads Act, which requires digital platforms to disclose political advertising; and the DISCLOSE Act, which mandates the disclosure of currently hidden independent election spending, thereby helping prevent foreign adversaries from meddling in America’s political system…
For example, adopting the Honest Ads Act could curb foreign influence by closing loopholes in online political advertising. Special counsel Robert Mueller discovered that Russian operatives used paid ads to influence the 2016 presidential election and spent more than $100,000 on digital ads in violation of the federal ban on foreign involvement in elections.
By Lauren Feiner
The Algorithmic Justice and Online Platform Transparency Act of 2021 — announced Thursday by Sen. Ed Markey, D-Mass., and Rep. Doris Matsui, D-Calif. — seeks to expose and address social injustices that are exacerbated by algorithmic amplification online…
The bill would prohibit platforms from using algorithms that discriminate based on protected characteristics like race and gender, empower the Federal Trade Commission to review platforms’ algorithmic processes and create a new inter-agency task force to investigate discrimination in algorithms.
Platforms would also have to explain to users how they use algorithms and what information they use to run them.
“It is time to open up Big Tech’s hood, enact strict prohibitions on harmful algorithms, and prioritize justice for communities who have long been discriminated against as we work toward platform accountability,” Markey said in a statement.
However, one industry group backed by companies including Amazon, Facebook, Google and Twitter warned that exposing platforms’ processes could be risky.
“No one wants tech to exacerbate racial inequality or deprive people of opportunity,” Chamber of Progress founder and CEO Adam Kovacevich said in a statement. “One approach would be expanding our existing civil rights and discrimination laws in housing, employment, and credit. There’s some danger that fully lifting the hood on tech algorithms could provide a road map for hackers, Russian trolls, and conspiracy theorists.”
FEC
Los Angeles Times: Did Stormy Daniels’ $130,000 break campaign finance laws? The FEC is too dysfunctional to decide
By Ann Ravel and Stephen Spaulding
Our country’s campaign finance referee, the Federal Election Commission, has an exceptionally important mission. It’s supposed to protect the fairness and integrity of our elections. But it needs repair. Among the key indicators: Dark money is still on the rise, rules to ensure transparency have stalled for a decade, and major campaign finance violations are routinely swept under the rug.
Congress must act. The For the People Act, sponsored by Rep. John Sarbanes (D-Md.) and Sen. Jeff Merkley (D-Ore.), will protect the freedom to vote, crack down on corruption, end gerrymandering and reduce the undue influence of money in politics. And it will fix the dysfunction at the FEC. The House passed the bill in March.
Senate Minority Leader Mitch McConnell (R-Ky.), the self-professed “proud guardian of gridlock,” tried his best to weaken the bill during a Senate committee proceeding this month. Pushing an amendment to gut the bill’s FEC reforms, he decreed that the commission “is not dysfunctional at all.”
McConnell is wrong.
Consider the FEC’s recent deadlock on whether to investigate Common Cause’s complaint about a $130,000 payment made to adult-film actress Stormy Daniels days before the 2016 election.
The Courts
Washington Post: Justice Dept. asks judge to toss lawsuit against Trump, Barr for violent clearing of Lafayette Square
By Spencer S. Hsu
Lawyers for the Justice Department urged a federal judge on Friday to dismiss lawsuits against former president Donald Trump, former attorney general William P. Barr and other officials for last June’s violent clearing of demonstrators from Lafayette Square by U.S. military and police.
Trump and other U.S. officials are immune from civil lawsuits over police actions taken to protect a president and to secure his movements, government lawyers said of the actions taken ahead of a photo op of Trump holding a Bible in front of the historic St. John’s Church. A crowd of more than 1,000 largely peaceful demonstrators were protesting the police killing of George Floyd in Minneapolis before the park was cleared…
Lawyers for the ACLU said that despite legal precedents, the government’s defense would “authorize brutality with impunity” in the heart of Washington at one of the most symbolic spaces within the seat of the federal government.
If their defense was upheld, U.S. authorities “could have used live ammunition to clear the park, and nobody would have a claim against that as an assault on their constitutional rights,” said Scott Michelman, legal director for ACLU-D.C.
Courthouse News: Protest Tactics
The Second Circuit granted a rehearing to anti-abortion protesters, vacating its previous opinion that some the protesters’ tactics constituted a “true threat.”
The States
Reason (Volokh Conspiracy): Dogs and Cats, Elections, and Prior Restraints
By Eugene Volokh
A Tennessee trial court “enjoined the parties [including a recent candidate for elected office] from making any public comments about each other and from making any ‘negative or disrespectful comments’ about each other to third parties.”
From Kauffman v. Forsythe, decided Tuesday by the Tennessee Court of Appeals, in an opinion by Judge W. Neal Mcbrayer, J., joined by Judges Steven Stafford and Thomas R. Frierson II:
PolitiFact NC/WRAL: Fact check: Would North Carolina bill ‘allow’ 501(c)(4) nonprofits to hide their donors?
By Paul Specht
A new bill aims to offer more protection to North Carolinians who donate to nonprofits.
Senate Bill 636, known as the donor privacy bill, recently passed the state Senate along partisan lines with Democrats claiming the bill would make so-called dark money “even darker.”
However, conservatives claimed that some Senators went too far with their criticisms.
“This bill would allow politically active 501(c)(4) organizations to hide major donors while using their money to support or oppose candidates and political issues,” tweeted state Sen. Natasha Marcus, a Democrat.
“In short, the bill says that non-profits can now conceal who their donors are,” state Sen. Jeff Jackson tweeted as part of a thread…
It’s fair to say the bill would make dark money darker. Bill supporters have said it’s their intent to provide nonprofit donors more protection.
However, it’s wrong for Marcus to suggest that the bill itself would move 501(c)(4) donor lists out of the public eye or outside the reach of the government. These lists are mostly concealed from the public already. And the bill specifically says its new rules would “not apply to disclosures required by State or federal law, criminal investigations, or orders of the court.” …
“It really is just saying that the nonprofits can’t voluntarily disclose their donors if the donors have asked to remain confidential,” Brain Hauss, a staff attorney with the ACLU Speech, Privacy and Technology Project.
“If the donor, you know, in providing their donation to the nonprofit, says ‘I want to keep my name confidential.’ Now under this bill that nonprofit would be legally obligated to keep it confidential with whatever penalties are applied in the bill,” Hauss said…
The ACLU believes releasing the names of nonprofit supporters could scare people away from donating to nonprofits, said Hauss, the ACLU attorney. He says the group sees a “major distinction” between disclosure to the government versus disclosure to the public.
