Litigation We're Watching

By Terry Martin

Last Updated 09/19/2019

Victory Processing, LLC v. Fox (9th Circuit opinion issued, awaiting certiorari petition): Montana state law prohibits automated “robocalls” transmitted in support of political campaigns. A political consulting and data gathering firm challenged this law as a violation of the First Amendment, since it discriminated based on the content of the robocalls. The 9th Circuit agreed. The case adds another data point in the federal court system to the ongoing interpretation of the legality robocall statutes.

Bullock v. IRS (District of Montana opinion issued, awaiting appeal): The IRS recently eliminated the requirement that a corporation exempt from tax under non-(c)(3) sections, in other words, those that do not allow donors to deduct contributions from their own tax returns, file a Schedule B, which discloses such donors. The Governor of Montana, its Department of Revenue, and the State of New Jersey sued alleging that the IRS did not follow the appropriate procedure in eliminating this Schedule B requirement. Specifically, that it did not follow the Administrative Procedure Act’s notice-and-comment process. The District of Montana agreed and set aside Revenue Procedure 2018-38, and required the IRS to follow the notice-and-comment process before adopting a similar rule. The case is important because donors often do not wish for their personal information to be disclosed when they are donating to nonprofit organizations for fear of harassment, and often believe that such disclosure is unnecessary because the federal government is not, by the disclosure, seeking to verify whether a subsidy is being properly used. The case has important implications for donor privacy and agency rulemaking.

New York Republican State Committee and Tennessee Republican Party v. SEC (DC Circuit opinion issued, awaiting petition for en banc review or certiorari): The SEC, by regulation, prohibits local and state government officials responsible for holding and managing public funds, for example, pension funds, from receiving campaign contributions from investment advisors who manage plan assets, and such advisors from giving such contributions, within 2 years of those investment advisors, or certain associates, providing paid advisory services to the government entity. This 2-year “cooling off” period was recently expanded to placement agents who distribute or solicit compensation with a government entity on behalf of an advisor, and includes provisions intended to prevent circumvention of the rule by, for example, soliciting another entity to make a contribution that would be illegal for the placement agent to make. Two state Republican Party organizations sued the SEC, arguing that the rule is an ultra vires regulation of campaign finance, that it is arbitrary and capricious, and that it violates the First Amendment. The United States Court of Appeals for the District of Columbia Circuit ruled that the rule is not ultra vires, since it is a regulation of the market, to prevent fraud, and to protect investors within the SEC’s regulatory jurisdiction and the rule can co-exist with the Federal Election Commission’s authority. The court also ruled that the rule was not arbitrary and capricious because the SEC could reasonably find that the Federal Election Campaign Act did not address potential corruption by placement agents in the contracting process. Finally, the court ruled that the rule did not violate the First Amendment because the rule was closely drawn to target corruption or its appearance, since it restricted only a narrow range of activities for a limited lime in pursuit of an area susceptible to corruption – contracting with government agencies. The opinion is worded broadly, and is expected to allow much more stringent regulation of “pay to play” activities than previously thought regulable, not in the least bit because appointees of both Democratic and Republican judges signed the opinion.

Calzone v. Missouri Ethics Commission (8th Circuit opinion issued, on petition for rehearing en banc): The State of Missouri’s lobbying registration and reporting law applies to anyone designated by an organization to influence legislation, whether any payment is promised or not. The president, who is the sole officer, of an advocacy organization challenged this law as violative of the First Amendment because he is not being paid, removing the state interest in regulating his activity. The United States Court of Appeals for the Eighth Circuit disagreed, citing recent Supreme Court cases taking a permissive stance toward disclosure laws that are triggered by speaking about public officials and opining that broad transparency is important to combat possible corruption. Future proceedings will shed light on the scope of individual privacy while engaged in uncompensated political activity.

Institute for Free Speech v. Jackley (D. South Dakota, parties currently filing briefs after motion for TRO/PI granted in part and denied in part): South Dakota law requires organizations that incur expenditures over $100 for communications “concerning… ballot questions” to include a statement in their ads disclaiming coordination with any candidate, officeholder, or committee, further revealing the organization’s name, web address, and mailing address, and finally identifying the five largest contributors to the entity in the preceding calendar year. A nonprofit exempt from tax under IRC section 501(c)(3) challenged these restrictions under the First Amendment as being vague for failing to include sufficiently precise definitions for the conditions that trigger the law’s application and for failing to allow a state agency to provide advice as to the same, and by regulating advertisements about issues that are not campaign related. The case could provide a data point in determining at what point the state’s interest in providing the public with information via comprehensive regulation is overcome by the constitutional guarantee of fair notice, and additionally whether protections for “issue speech” that do not obviously relate to a campaign have continuing significance to campaign finance law in the area of public disclosure.

Citizens for Responsibility and Ethics in Washington v. Federal Election Commission (notice of appeal filed by subject party Crossroads GPS): Federal Election Commission (“FEC”) regulations interpreting the Federal Election Campaign Act (“FECA”) require a committee to disclose a third party contributor only if his contribution is earmarked for a specific independent expenditure. Citizens for Responsibility and Ethics in Washington (“CREW”) challenged this regulation as being an unreasonable narrowing of the FECA provision it was promulgated to implement. The lower court agreed and struck the regulation. The subject party, Crossroads GPS, has appealed to the U.S. Court of Appeals for the District of Columbia Circuit, with further proceedings expected to have immediate implications for transparency on the campaign trail and the scope of a federal agency’s authority to promulgate regulations.

Thompson v. Hebdon (9th Circuit, challenge sustained, on remand to D. Alaska where opening briefs are being filed): First Amendment law forbids discriminating against speakers based on identity, with rare exceptions such as certain forms of foreign national participation in the political process. Alaska enforces a statutory provision that limits the aggregate contributions a candidate may accept from out-of-state residents. A panel of the 9th Circuit ruled that such a law does in fact infringe unconstitutionally on First Amendment rights. Appeal to the 9th Circuit en banc is expected, with potential U.S. Supreme Court interest on the horizon.

Americans for Prosperity Foundation v. Becerra (9th Circuit opinion issued, awaiting certiorari petition): The California Attorney General requires nonprofits exempt from tax under Section 501(c)(3) of the Internal Revenue Code to submit an unredacted Schedule B list of donors and addresses with their annual IRS Form 990 tax returns. Americans for Prosperity Foundation (“AFPF”) challenged this requirement under the First Amendment’s implied guarantee of expressive association, claiming that by compelling AFPF to submit its donor information to the government, potential donors would be disincentivized for fear of government targeting if the officials disagree with AFPF’s viewpoint. The 9th Circuit rejected this challenge, arguing that because only the government would see the donor info, AFPF was unlikely to experience harassment, and the risk of inadvertent disclosure was only slight. The case comes against a wide split of authority among lower federal courts regarding the scope of First Amendment privacy rights and the authority of governments to compel disclosure of nonprofit or campaign donor information.