December 8, 2022

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In the News

The Center Square: Ohio group files lawsuit over IRS donor collection data

By J.D. Davidson

.....An Ohio policy group has challenged a law that requires the IRS to demand private donor information from charity groups with a federal lawsuit.

The Buckeye Institute, represented by lawyers from the Institute for Free Speech and its own attorneys, filed its lawsuit in the U.S. District Court for the Southern District of Ohio, Columbus Division. It claims the law violates the First Amendment and the requirement restricts free speech.

According to a release from The Buckeye Institute, the IRS has admitted it does not need the donor records and issued a rule in 2020 to stop collecting records from other tax-exempt organizations classified in other ways...

“The Buckeye Institute has experienced firsthand the chilling effect that forced donor disclosure has on the freedom of association,” said Robert Alt, president and chief executive officer of The Buckeye Institute and counsel of record in the case.

Alt said that in 2013, shortly after the group urged Ohio’s governor and legislature to reject federal Medicaid expansion, the group was selected for audit by the IRS...

The lawsuit also says a recent leak of IRS data can reasonably give donors concern.

The Courts

Courthouse News: Fourth Circuit urged to strike down North Carolina election libel law

By Erika Williams

.....A Fourth Circuit panel heard arguments Tuesday over whether the campaign committee for North Carolina’s Democratic attorney general should face criminal charges under a state law banning the spread of false information to damage a candidate’s shot at winning an election...

“Rather than engage in counterspeech from his candidate’s platform (or filing a civil defamation claim), the challenger’s campaign sought to enlist the police power of the state to regulate political speech,” attorneys for Stein’s committee wrote in an 81-page brief to the Fourth Circuit.

Providence Journal: Pawtucket agrees to settle lawsuit banning lawn signs

By Patrick Anderson

.....Campaign yard signs can roam free in Pawtucket and the city will pay two incoming state lawmakers $1,000 for ordering the removal of their signs during this year's campaign.

That's the result of a settlement the city agreed to Tuesday to end a lawsuit challenging the constitutionality of an ordinance that bans political signs 30 days before an election.

The city will also have to pay $18,311 in legal bills for the plaintiffs, Jennifer Stewart and Cherie Cruz, two Democrats set to represent Pawtucket in the state House of Representatives in January after winning elections last month.

The American Civil Liberties Union of Rhode Island and attorney Richard Sinapi brought the case on behalf of Stewart and Cruz, arguing that the Pawtucket ordinance violated the First Amendment.

New Jersey Law Journal: Did Court Staffer Threaten Website Critical of This New Jersey Judge?

By Charles Toutant

.....A nonprofit group has been given the green light to proceed with First Amendment claims against a New Jersey judiciary employee who directed a website operator to retract online criticism of a state Superior Court judge.

The suit, which seeks damages and injunctive relief, addresses what sort of actions are permissible when a government agency is responding to online criticism.

Alleged threats of a lawsuit by the judiciary against the website that posted the judicial criticism demonstrate that the website operator’s removal of the offending content was a state action, Chief U.S. District Judge Freda Wolfson wrote when she denied a motion to dismiss a civil rights suit against Pete McAleer, director of communication and community relations for the judiciary.

Cato: Courts Should Take “Jawboning” Claims Seriously

By Thomas A. Berry

.....In our brief, we focus not on who should win this particular case, but rather on the larger principles at stake in how the Sixth Circuit decides this case. First, we urge the court to acknowledge that government pressure against speakers or platforms, known as “jawboning,” raises serious First Amendment concerns. All too often, government agencies and officials attempt to suppress speech informally when they could not legally do so formally. At a certain point, as the Supreme Court held in Bantam Books v. Sullivan (1963), such pressure becomes so coercive as to violate the First Amendment...

At the same time, courts should also make clear that such pressure does not transform platforms like social media companies into “state actors.”

Congress

Politico: Politico Influence

By Caitlin Oprysko

.....Nearly two dozen Democratic senators this week urged President Joe Biden to act unilaterally to require federal contractors to disclose their political spending — including contributions to dark money groups — citing the hundreds of millions of anonymous dollars that flooded this year’s elections.

“American taxpayers have a right to know whether and how government contractors are spending money to elect lawmakers who can influence the procurement and awarding of government contracts,” the senators, led by Dianne Feinstein of California and Sheldon Whitehouse of Rhode Island, wrote.

“Federal contractors spend substantial sums in elections,” they said, adding that corporate PAC spending is dwarfed by that of super PACs that can accept unlimited contributions from anonymous donors. “The White House should not hesitate to cast a bright light on secret political spending and its corrupting effects wherever possible.”

Federal contractors are already banned from political donations that come from the contractors' treasuries. But there is no restriction on contributions to nonprofit groups, even if those nonprofits spend money to influence elections.

Online Speech Platforms

National Review: The ‘Twitter Files’ Miss the Real Scandal: FBI Interference in the 2020 Election

By Andrew C. McCarthy

.....The FBI, as the pointy end of the executive-branch spear, would have us believe that it in no way intentionally interfered in the 2020 election. Yet the evidence that it did so, and that its doing so was part of a yearslong pattern, is by leaps and bounds stronger than the evidence that the Trump campaign corruptly conspired with Russia to interfere in the 2016 election — the baseless allegation, energetically promoted by the bureau, that inflamed the country for two years.

I’ve laid out much of the 2020 evidence here at NR and in the New York Post — the latter piece coming after Elon Musk, Twitter’s new top honcho, made some of the platform’s internal correspondence relating to the 2020 campaign available to journalist Matt Taibbi, who reported on it publicly in a series of tweets. Taibbi’s reporting is important, but I was surprised by the weakness of his observation that, beyond a “general” warning about “possible foreign hacks,” there appeared to be no evidence of FBI complicity in the pre-election social-media suppression of the Post’s reporting on damning information from Hunter Biden’s laptop.

Candidates and Campaigns

Insider: Cyberthieves stole $186,000 from a Republican member of Congress as fraud epidemic plagues political committees

By Dave Levinthal

.....Republican Rep. Diana Harshbarger of Tennessee is the latest victim in a string of financial crimes against federal-level political committees that's quickly reaching epidemic levels.

A cyber thief known only as "Vix" stole more than $186,000 from Harshbarger's campaign account in an "unauthorized fraudulent wire transfer" on July 8, according to records filed with the Federal Election Commission.

The States

Seattle Times: WA appeals court largely upholds Eyman campaign finance violations

By David Gutman

.....A Washington state Court of Appeals on Tuesday upheld the vast majority of campaign finance violations that longtime anti-tax activist Tim Eyman was found liable for last year, keeping in place the multimillion-dollar verdict against Eyman and most of the restrictions barring Eyman from controlling the finances of political committees.

While the Division II Court of Appeals largely found for Attorney General Bob Ferguson in his long-running case against Eyman, it did hand Eyman a few limited victories.

It threw out one of the violations against Eyman, a small portion of the restrictions imposed on him, and asked the trial judge to reconsider the size of the fine levied against him...

“Misleading potential donors obviously is improper and may be illegal,” Judge Bradley Maxa wrote for the unanimous three-judge panel. “But the State does not point to any provision of the FCPA that prohibits a person from misleading potential donors.”

Eyman was fined more than $2.6 million for his campaign finance violations and ordered to pay attorneys’ fees to the state of more than $2.9 million for the case which has run for the better part of a decade.

Eyman has filed for bankruptcy and sold his house. He argued the amounts violated prohibitions on excessive fines in the federal and state constitutions.

The appeals court said it didn’t have enough information to evaluate the claim and asked the trial court to look at it again.

It also ruled that the attorney general had “predominantly prevailed” in the appeal and ordered Eyman to pay more attorneys’ fees to the state.

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