Monthly Archives: May 2013

California Senate Passes Bill To Revoke Boy Scouts’ Tax Exempt Status

Story here.  A Democratic California Senator says the Boy Scouts are

out of line with the values of California and should be ineligible for a tax benefit paid for by all Californians,” Sen. Ricardo Lara, D-Bell Gardens, said as he introduced his bill. “SB 323 brings our laws into line with our values.”

The measure calls for revoking the tax-exempt status of youth groups that discriminate against participants on the basis of sexual orientation or gender identification.

More evidence that many people in this country have completely lost any sense of the distinction between the public and the private spheres. It is not for the government, state or federal, to coerce private associations into adopting any particular policy views by selectively withholding tax exempt status. It must be a function of the character of the activity that is deemed exempt, not the viewpoint of those engaging in such activity. This is chilling. 

Gov. Perry Vetoes SB 346, the Nonprofit “Disclosure” Bill With Exemption for Unions

On May 25, Gov. Perry vetoed SB 346, sending an ill-conceived, discriminatory, and redundant bill (given the already-broad “political committee” definition) to its rightful place. Here is his veto statement in full:

“Freedom of association and freedom of speech are two of our most important rights enshrined in the Constitution. My fear is that SB 346 would have a chilling effect on both of those rights in our democratic political process. While regulation is necessary in the administration of Texas political finance laws, no regulation is tolerable that puts anyone’s participation at risk or that can be used by any government, organization or individual to intimidate those who choose to participate in our process through financial means.”

“At a time when our federal government is assaulting the rights of Americans by using the tools of government to squelch dissent it is unconscionable to expose more Texans to the risk of such harassment, regardless of political, organizational or party affiliation. I therefore veto SB 346.”

As previously reported, the “backup” language tacked on to SB 219 did not survive the conference committee. Good news all around.

Insight Into Lois Lerner’s Philosophical Moorings

This piece features lengthy quotes from nationally-known political law attorney Craig Engle, who worked with Lerner at the FEC, including this:

Engle says Lerner saw violations around every corner, even when her legal reasoning was slight.  “Under [Lerner], the general counsel’s office functioned as a prosecutor.  Nine times out of ten, her recommendations were against the respondent.  I think she was philosophically opposed to money in politics and was very much a critic of people spending money in political affairs.  She could always find a violation — at least in her opinion, or in her head.  In my opinion, her interpretation of the law was sometimes just incorrect.”

This contradicts earlier news reports that Lerner was apolitical. Or, at least, indicates that even if she’s not devoted to partisan issues per se, she may have philosophical beliefs about government that inform and animate her decisions. “Apolitical” does not necessarily mean unbiased.

SB 219 Reveals It’s Not Really About Transparency Afterall

UPDATE: The Dallas Morning News is reporting that the nonprofit “disclosure” language that was added to SB 219 has been stripped out in conference committee. H/T to Holly Hansen of the Williamson County Conservative blog for directing me to the news. If true, that’s fantastic. But it still leaves a discriminatory, and totally unnecessary, SB 346 on the Governor’s desk.

Original post: 

If Representative Charlie Geren’s recent claim of interest in transparency were legitimate, some very strange things happened in the House this week. To allay concerns about already-passed SB 346, which favors labor unions over all other political groups in the state, Rep. Geren said he would offer amendments to SB 219 to require disclosure of contributions to certain nonprofits but without the labor union exemption.  The bill that has emerged seems to suggest this was never an exercise in transparency at all.

SB 219, as amended, now appears to require nonprofit disclosure, but only with respect to nonprofits that are active in elections for the Speaker of the House.  See amendment 12 and amendment 13 (applying only to elections under Government Code section 302, which concerns Speaker elections).  First of all, the election of the Speaker is a critical election with major policy ramifications for the people of Texas, and citizen groups have just as much right to voice their views as the candidates for Speaker and other members of the Legislature. In fact, just a few years ago the federal court in Austin invalidated certain restrictions on independent spending with respect to Speaker elections. The Court totally rejected the idea that only the privileged class in the Legislature gets to speak about the Speaker’s race. See Free Market Foundation v. Reisman (2008).  Yet here we are again–SB 219 purports to impose onerous burdens on any “outside” groups (read: non-privileged ordinary citizens interested in good government) who dare to voice their views in a Speaker’s race.

Aside from that, the fact that Rep. Geren himself offered an amendment that calls for additional disclosure of donors–but only for groups active in the Speaker’s race–reveals that this was never about “transparency” to begin with. If it were about transparency, SB 346 wouldn’t have excepted labor unions. If it were about transparency, SB 219 would not have been amended such that the additional disclosure requirements applied only in Speaker’s races.  Instead, it is clear this is about punishing and suppressing the speech of certain groups disfavored by incumbent officeholders, who such officeholders apparently believe are too effective in communicating with voters.

SB 219 now also includes a requirement that any “electioneering communications” by a nonprofit “disclose in the communication the source of the funds used to pay for the communication.”  See amendment 19 (Johnson).  This is unconstitutionally vague, and is also cumbersome without some serious narrowing and explanation by the Ethics Commission.  Is a nonprofit supposed to list the names of all its contributors “in the communication”? That’s not feasible and it would destroy the ability to send an advertisement at all in certain media.

The Legislature is (I think) capable of passing thoughtful legislation respectful of the First Amendment that achieves greater transparency.  But it has not done so here, with either bill.  Governor Perry should have no qualms whatsoever about vetoing SB 346 (see previous analysis here and here). And the Senate should not pass out the “disclosure” language in SB 219 as it reads currently. If it does, the Governor should veto it as well.  It is the duty of all elected officials to respect and uphold the Constitution. 

WSJ: “Texas Targets Conservatives”

The Wall Street Journal is out with an editorial today regarding SB 346, the ill-conceived and speech-chilling bill targeting non-PAC groups that engage in political expenditures. The article includes this quote summing up the motivation by incumbent lawmakers for passing the bill:

In 2012, independent political spending by 501(c)(4)s and 501(c)(6)s made up about 1% of overall election spending in Texas, hardly a political juggernaut. But the Texas saga shows that the only people who like campaign finance restrictions more than liberals are incumbents, who want to limit potential donations or advertising support for challengers.

See previous posts pointing out some of the problems with this bill here and here.


Supreme Court Merits Briefs Filed in McCutcheon v FEC

Last June, Shaun McCutcheon and the Republican National Committee filed a lawsuit to vindicate a fundamental principle: no government may impose a limit on how many candidates, political parties, or other election-related groups a person is allowed to support in any election cycle. When the Supreme Court announced it would hear the appeal in McCutcheon v. Federal Election Commission, the case was the subject of headlines and editorials from the New York Times to the Wall Street Journal. Yesterday, McCutcheon and the RNC each filed their merits briefs with the Court, setting the case up for oral argument later this year. (Find McCutcheon’s brief here; RNC’s brief here)

The lawsuit specifically challenges the federal aggregate contribution limits enacted as part of the Bipartisan Campaign Reform Act of 2002, also known as “McCain-Feingold.”  While Congress has already imposed strict limits on the amount a person may contribute to any single candidate, political party, or PAC, the aggregate limits impose an additional, overall cap that functions to prevent a person from contributing small amounts of money to “too many” candidates or groups.  McCutcheon’s brief persuasively argues that the FEC cannot justify the aggregate limits either as an anti-corruption measure or as a method of preventing circumvention of the base limits, which is already foreclosed by numerous specific provisions, for example prohibiting undisclosed earmarks and contributions in the name of another.

The aggregate limits are therefore at odds with the First Amendment. They are entirely unnecessary in light of the base contribution limits and maze of additional federal regulations, yet seriously infringe the associational rights of Americans to support as many candidates and political committees as they wish without government interference.

McCutcheon is represented by Jerad Najvar of Houston-based Najvar Law Firm, DB Capitol Strategies in Washington, DC, and Michael Morley, election law and appellate litigator. The RNC is represented by the Bopp Law Firm and Stephen M. Hoersting.