The Trump Executive Order and IRS Politics

May 9, 2017
posted by Bob Bauer

President Trump’s Executive Order to relieve religious organizations of regulatory limits on their political activities came and went with little stir. It was widely seem to be lacking in content. David French, writing in The National Review, was harsher, pronouncing it "worse than useless."

Aimed at the Johnson Amendment, the Order directs the Secretary of the Treasury not to take "any adverse action" against a 501(c) organization speaking on political issues "from a religious perspective." But commentators correctly observed that an Executive Order cannot undo a statute, and that the Order confines its directives to actions by the Secretary "to the extent permitted by law" or "consistent with law." Translated into its simplest terms, the Order requires the Secretary to do what he can if the law allows it, and because the law in question is the Johnson Amendment, then the President has, in effect, demanded that the Secretary ease restrictions “to the extent permitted” by the Johnson Amendment. This is an unusual way of taking on the Amendment.

But if we look beyond the murky conception behind the Order and its somewhat tortuous wording, and consider what it might mean in practice, then it seems more consequential--at least in the next four years.

The are the reasons I have given in an op-ed for The Washington Post for separating the position of the United States from the defense of President Trump in the pending Emoluments suit.

The text follows:

President Trump has been sued for violating the constitution’s Emoluments Clause, which raises the question: who should represent him? As it stands now, because the president has been sued in his official capacity, the Department of Justice will appear for the defense on behalf of the United States. But in an unprecedented case involving the president’s extensive private business interests and its management through a controversial “trust” arrangement, that is the wrong choice.

Instead, the president should be required to retain his own private counsel to represent him. The Justice Department should express its view separately but also independently of the Department’s senior appointed leadership . This arrangement would make it more likely that Justice will advance a constitutional position in the broader public interest, not just in the narrow service of the president who happens to be in office at the moment.

Disagreements about Speech Limits

May 1, 2017
posted by Bob Bauer

Is there an exception to free speech if its purpose is to exclude from the conversation certain views or groups? Ulrich Baer and Ted Gup have written dueling commentaries on this question. Baer argues that campuses are right to deny a forum to speakers whose racist or misogynist message defines other voices as unworthy of participation in the debate. Gup answers that once the principle of free speech is abridged for any reason, the inevitable result is more power for those who have already have it, more danger for those who do not. The protection Baer believes he is extending to the marginalized and underprivileged will turn out to be the road to their further victimization. Gupta sees Baer as mistaken that an exception carved out for the most just or compassionate of reasons can be kept under control and not abused for baser purposes.

There is a strong echo of this argument in the conflicts over campaign finance regulation. Those who would like to see the imposition of tighter limits on campaign spending are often making a Baer-like argument, with a twist. They do not peg their point to the content of the paid message: It could be on any subject. But they believe that the capacity to spend heavily to promote one’s views is an act of domination over those who don’t have the resources to answer. The wealthy are establishing an exclusive forum for speech funded at that level: Only a few can participate. This is an affront to democratic self-governance. It is, to borrow Baer’s words, threatening to “equal access to pubic speech,” and limits serve to “ensure the conditions” of such speech.

So, seen through this perspective much like Baer’s, limits are justified. And, just as Baer argues, staunch campaign finance advocates have long maintained that speakers restricted in the use of one outlet for their views can always can turn to others. Those whose speech confronts limits are still free to hold their beliefs and express them, just not at liberty to spread them on whatever terms and in whatever ways they choose.

The Supreme Court in Buckley v. Valeo famously rejected the notion that the speech of some may be limited in order to lift up the speech of others. Gup goes farther, insisting that, even if speech limits are intended to have this leveling effect, they usually don’t. The historical record to which Gup appeals tends to show that well-intended speech restrictions end up working against the interests of the marginalized and underprivileged. Once limits on access to a forum may be set, choices of who may spend, and how much, must be made. Gup writes that“ the advocacy of a dynamic line between protected and unprotected speech grants a license to those in power to smother dissent of all sorts….”

Nate Persily of Stanford Law is emerging as the leading authority on the effect of the internet and social media on political campaigns.  His recent article in the Journal of Democracy displays Persily’s strengths: deep research, clarity of exposition and a grasp of what is significant in the messy world of facts. He is unmistakably alarmed: indeed, in interviews, he has said so.  Persily fears that a ruthless marriage of technology to “fake news” can destroy the prospects for responsible democratic deliberation.

Where does this discussion of fake news go from here, and what are the pitfalls? Professor Persily notes that the dominant Internet platforms are moving toward policies to help readers locate the bona fide news items. Facebook now works with traditional media organizations and fact-checking enterprises to “flag” dubious stories. Some readers will accept this role, as a responsible exercise of power, while others will see it as an expansion of great market power. Or, in Persily’s words:

[Market] power far in excess of that which legacy media institutions had in their heyday, let alone today. Especially in an environment in which the regulated speech—whether hate speech, fake news, or otherwise—tends to predominate on one side of the political spectrum, they cannot escape the charge that their new rules are biased either in intent or in effect.

Persily makes clear that the issues are complex but he sees large questions of policy to which answers are required if we are to have “integrity” of information on which democratic debate depends.

To defend the post-McCain-Feingold version of campaign finance reform, proponents have taken special pains to say that it did not really hurt the political parties. They bounced back, engineered new ways to raise money, became perhaps even stronger. The soft-money the 2002 law took away from them has been replaced by other sources of funding. Online contributions have helped, and so has special new party fundraising authority enacted by Congress in the “Cromnibus.”

But even more important, according to this line of argument, is understanding what a political party is. It is not correct, on this view, to point to the formal institutional party organizations, but parties should be viewed instead as “networks” of allied entities. That would include, for example, interest groups sympathetic to Democrats or Republicans, Super PACs aligned with either major party (sometimes referred to as “shadow parties”), and even Fox or MSNBC.

Now the Campaign Finance Institute has put out new research and commentary in support of this picture of the parties. Having assembled data to show that Super PACs aligned with party interests spent large sums of money in 2016, the CFI declares that there is no cause to “bemoan” the weakness of parties. Parties have “rebounded”: they “have found a way to fight back” after the reforms and Citizens United.

And how did this happen? On this point, CFI words its position delicately. The parties’ recovery can be attributed in part to the “law’s permeability.” The unrestricted funding and spending of Super PACs "looks much like the soft-money the formal parties accepted before the Bipartisan Campaign Reform Act of 2002 (BCRA).”   There are advantages and disadvantages to this development. On the plus side, the "shadow party" PACs don’t have to pretend to be “issue advertising” and can spend on direct advocacy of their candidates. But, more negatively, they have to set up as “independent” of candidates or the institutional parties and cannot coordinate their spending with them.