| FORM 990, PART VI, SECTION A, LINE 8B |
NO SUCH COMMITTEES EXISTED. |
| FORM 990, PART VI, SECTION B, LINE 11B |
THE INSTITUTE'S AUDIT COMMITTEE REVIEWS A DRAFT OF THE 990 PRIOR TO FILING. A COPY OF THE FORM 990 IS ALSO PROVIDED TO THE INSTITUTE'S GOVERNING BODY BEFORE IT IS FILED. |
| FORM 990, PART VI, SECTION B, LINE 12C |
EVERY YEAR BOTH THE BOARD OF DIRECTORS AND EVERY OFFICER REVIEWS THE CONFLICT OF INTEREST POLICY AND MUST DISCLOSE ANY CONFLICTS. THE BOARD OF DIRECTORS REVIEWS THE POLICY AT OR AROUND ITS FINAL MEETING OF THE YEAR AND EACH MEMBER PROVIDES WRITTEN ACKNOWLEDGMENT. EVERY EMPLOYEE ALSO RECEIVES AN ELECTRONIC COPY OF THE POLICY. ANY CONFLICTS OR POTENTIAL CONFLICTS ARE RESOLVED BY THE PRESIDENT OR OTHERWISE REPORTED BY THE PRESIDENT AND REVIEWED AND RESOLVED BY THE BOARD OF DIRECTORS. IN REVIEWING ANY CONFLICT OR POTENTIAL CONFLICT, ANY MEMBER OF THE BOARD OF DIRECTORS WHO MAY HAVE A CONFLICT IS RECUSED FROM RESOLVING THE CONFLICT OR POTENTIAL CONFLICT. |
| FORM 990, PART VI, SECTION B, LINE 15A |
THE PRESIDENT'S COMPENSATION IS NEGOTIATED WITH THE CHAIRMAN, AND APPROVED BY THE BOARD. COMPENSATION FOR EMPLOYEES IS APPROVED BY THE PRESIDENT. |
| FORM 990, PART VI, SECTION C, LINE 19 |
THE INSTITUTE'S FORM 990 IS AVAILABLE ON ITS WEBSITE AND IS AVAILABLE TO THE PUBLIC UPON REQUEST. THE AUDITED FINANCIAL STATEMENTS ARE AVAILABLE ON ITS WEBSITE. |
| FORM 990, PART XII, LINE 2C |
THE PROCESS DID NOT CHANGE FROM THE PRIOR YEAR. THE BOARD OF DIRECTORS IS RESPONSIBLE FOR THE SELECTION OF THE INDEPENDENT AUDITORS AND OVERSIGHT OF THE INDEPENDENT AUDIT. |
| CASE IN LITIGATION PART I |
CALZONE V. MISSOURI ETHICS COMMISSION (LOBBYING DISCLOSURE) OUR REPRESENTATION OF MR. CALZONE, A CITIZEN ACTIVIST IN MISSOURI, BEGAN IN AUGUST 2015. SOME LEGISLATORS AND LOBBYISTS IN THE STATE ATTEMPTED TO SILENCE MR. CALZONE, WHO HAS FOR MANY YEARS ADVOCATED FOR INDIVIDUAL LIBERTY, FREE MARKETS, AND CONSTITUTIONALLY LIMITED GOVERNMENT. UNFORTUNATELY, AS MR. CALZONE SAYS, "MY ACTIVISM HAS MADE SOME POWERFUL ENEMIES MAYBE HIGH-PAID LOBBYISTS DON'T LIKE HAVING TO EXPLAIN TO THEIR CLIENTS WHY AVERAGE CITIZENS, USING NOTHING MORE THAN FACTS, REASON, AND SPEECH, BEAT THEM AT THEIR OWN GAME TIME AND AGAIN." IN HIS OWN WORDS, CALZONE HAS "ANGERED POWERFUL LEGISLATORS BY OPPOSING THEM WHEN THEY WERE TRYING TO ADVANCE UNCONSTITUTIONAL BILLS OR IGNORE CONSTITUTIONAL LIMITS ON THEIR POWER." MR. CALZONE'S DIFFICULTIES WITH STATE REGULATORS BEGAN ON ELECTION DAY 2014, WHEN THE SOCIETY OF GOVERNMENT CONSULTANTS, A LOBBYIST GUILD IN MISSOURI, FILED A COMPLAINT WITH THE MISSOURI ETHICS COMMISSION. THE COMPLAINT ALLEGED THAT WHEN MR. CALZONE SPOKE WITH LEGISLATORS DURING HIS ADVOCACY, HE WAS ACTING AS A LOBBYIST - DESPITE HAVING NEVER BEEN PAID OR IN ANY WAY COMPENSATED - AND THAT HIS FAILURE TO REGISTER AS A LOBBYIST WITH THE STATE WAS AGAINST THE LAW, SUBJECTING HIM TO FINES AND POSSIBLY EVEN JAIL TIME. THE INSTITUTE FOR FREE SPEECH'S LEGAL TEAM STEPPED IN TO DEFEND MR. CALZONE AGAINST THESE ABSURD CHARGES, REPRESENTING CALZONE IN SEPTEMBER 2015 WHEN HIS CASE CAME BEFORE THE MISSOURI ETHICS COMMISSION. THE COMMISSION HEARING WAS A TRAVESTY OF JUSTICE. FOR OVER FOUR HOURS, BEHIND CLOSED DOORS, THE COMMISSION VIOLATED BASIC CONSTITUTIONAL GUARANTEES AND IGNORED THE PLAIN WORDS OF MISSOURI LAWS. WITNESSES THAT THE INSTITUTE FOR FREE SPEECH'S ATTORNEYS HAD NEVER BEEN INFORMED ABOUT TESTIFIED AGAINST MR. CALZONE, DOCUMENTS WERE ENTERED AS EVIDENCE THAT WERE NEVER VERIFIED, AND THE INVESTIGATOR FOR THE COMMISSION QUOTED INTERVIEWS SHE ALLEGEDLY CONDUCTED WITH LAWMAKERS, DESPITE ADMITTING THAT SHE HAD DELETED ALL OF HER NOTES. IN THE END, BY USING A CONVOLUTED AND IRRATIONAL READING OF "DESIGNATED AND "EMPLOYED," THE COMMISSION CONCLUDED THAT MR. CALZONE WAS A LOBBYIST AND SOUGHT TO FINE HIM $1,000 FOR NOT PROPERLY REGISTERING WITH THE STATE BEFORE EXPRESSING HIS OPINIONS ABOUT MISSOURI LEGISLATIVE PROPOSALS TO STATE LEGISLATORS. MR. CALZONE HAS NEVER BEEN PAID A CENT TO LOBBY AND NEVER MADE ANY GIFTS TO LEGISLATORS OR THEIR STAFFS. HE IS A VOLUNTEER FOR A CITIZENS GROUP THAT HAS NO BUDGET, BUT IT DOES HAVE A WEBSITE AND FACEBOOK PAGE TO SPREAD THE WORD ABOUT LEGISLATION BEING CONSIDERED BY THE GENERAL ASSEMBLY. DURING THE HEARING, THE INSTITUTE FOR FREE SPEECH DISCOVERED THAT THESE TRUMPED UP CHARGES AGAINST MR. CALZONE WERE NOTHING MORE THAN A THINLY-VEILED ATTEMPT TO MUZZLE A CITIZEN THAT LAWMAKERS AND LOBBYISTS VIEW AS A THORN IN THEIR SIDE. INDEED, A REPRESENTATIVE OF THE LOBBYIST GUILD THAT BROUGHT THE COMPLAINT TESTIFIED THAT TWO MISSOURI LAWMAKERS, WHO HAD REASON TO DISLIKE MR. CALZONE, HAD SPOKEN WITH THE LOBBYISTS AND STRONGLY ENCOURAGED THEM TO INITIATE THE COMPLAINT. WE ARE ALSO REPRESENTING MR. CALZONE IN STATE COURT, BUT THOSE ACTIONS HAVE BEEN POSTPONED UNTIL THE FEDERAL LITIGATION HAS BEEN RESOLVED. SUCCESS IN THIS CASE WOULD PROTECT THE FIRST AMENDMENT RIGHT TO PETITION GOVERNMENT FOR A REDRESS OF GRIEVANCES. NOTABLE CASE ACTIONS: ON JUNE 26, 2017, A FEDERAL COURT JUDGE RULED THAT THE STATE LAW WAS CONSTITUTIONAL. AN APPEAL AND BRIEFS WERE FILED WITH THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, AND ORAL ARGUMENT WAS HEARD ON APRIL 10, 2018. ON NOVEMBER 28, A DIVIDED EIGHTH CIRCUIT UPHELD THE DISTRICT COURT. JUDGE STRAS DISSENTED, NOTING THAT NEITHER THE GOVERNMENT NOR THE MAJORITY HAD EXPLAINED "WHY COMPILING A LIST OF PEOPLE WHO ARE ENGAGING IN CORE POLITICAL SPEECH IS 'IMPORTANT'" TO THE STATE. IFS SOUGHT EN BANC REVIEW, WHICH WAS GRANTED ON JANUARY 29, 2019. |
| CASE IN LITIGATION PART II |
FEDERAL ELECTION COMMISSION V. JEREMY JOHNSON AND JOHN SWALLOW (UNCONSTITUTIONALLY VAGUE REGULATION) THE FEC HAS LONG BEEN ABLE TO PUNISH PEOPLE FOR BREAKING CAMPAIGN FUNDRAISING LIMITS. BUT THE FEC CLAIMED THAT A 1989 REGULATION ALLOWED IT TO PUNISH PEOPLE WHO MERELY HELPED FUNDRAISE FOR CANDIDATES - EVEN WHEN SOMEONE ELSE BROKE THE FUNDRAISING LIMIT. IT USED THAT REGULATION TO FILE A LAWSUIT AGAINST OUR CLIENT, FORMER UTAH ATTORNEY GENERAL JOHN SWALLOW. THE INSTITUTE FOR FREE SPEECH COUNTERED THAT THE LAW DID NOT ALLOW THE FEC TO WRITE SUCH A REGULATION. U.S. DISTRICT COURT JUDGE DEE BENSON AGREED. HE RULED THAT HE HAD TO DECIDE "WHETHER THE FEDERAL ELECTION COMMISSION HAD THE RIGHT TO PROMULGATE [THE REGULATION]. THE ANSWER IS NO. THE COMMISSION, AS AN INDEPENDENT AGENCY CREATED BY CONGRESS FOR THE SOLE PURPOSE OF ENFORCING [THE FEDERAL ELECTION CAMPAIGN ACT] HAD NO AUTHORITY TO WRITE A REGULATION THAT WENT BEYOND THE ACT ITSELF." THE JUDGE ORDERED THE FEC TO REMOVE THE REGULATION FROM THE CODE OF FEDERAL REGULATIONS AND DISMISSED THE LAWSUIT AGAINST MR. SWALLOW. THIS WIN HELPS ESTABLISH AN IMPORTANT PRINCIPLE: THE FEC CANNOT GO BEYOND THE LAW TO LIMIT AND PUNISH POLITICAL SPEECH THE AGENCY DOESN'T LIKE. ON SEPTEMBER 20, 2018, JUDGE BENSON ISSUED ANOTHER RULING DISMISSING THE CASE AGAINST MR. SWALLOW. THE FEC FAILED TO APPEAL THE DECISION BY THE NOVEMBER 20. 2018 DEADLINE. |
| CASE IN LITIGATION PART III |
HOWARD JARVIS TAXPAYERS ASSOCIATION V. GOVERNOR OF THE STATE OF CALIFORNIA (CONSTITUTIONALITY OF PASSAGE OF LAW TO ENABLE TAX-FINANCED CAMPAIGNS) CAN STATE LEGISLATORS OVERTURN THE WILL OF THE PEOPLE IN ORDER TO INSTITUTE TAX-FINANCED CAMPAIGNS? UNDER CALIFORNIA LAW, THE INSTITUTE FOR FREE SPEECH BELIEVES THE ANSWER IS CLEARLY NO. ON BEHALF OF THE HOWARD JARVIS TAXPAYERS ASSOCIATION AND RETIRED STATE SENATOR AND JUDGE QUENTIN L. KOPP, IFS JOINS THE CENTER FOR CONSTITUTIONAL JURISPRUDENCE AND BELL, MCANDREWS, AND HILTACHK, LLP IN A SUIT AGAINST CALIFORNIA FOR ENACTING A LAW THAT WOULD DO JUST THAT, IN VIOLATION OF THE STATE'S CONSTITUTION AND LAW. IN 1974, VOTERS PASSED THE POLITICAL REFORM ACT OF 1974 VIA THE STATE'S ROBUST INITIATIVE PROCESS. IN 1988, THAT INITIATIVE WAS AMENDED, AGAIN BY VOTERS, WITH THE PASSAGE OF PROPOSITION 73, WHICH PROHIBITED TAX DOLLARS FROM BEING USED FOR THE PURPOSE OF FUNDING POLITICIANS' CAMPAIGNS. IN 2000, AGAIN BY INITIATIVE, VOTERS REAFFIRMED THE BAN ON TAX-FINANCED CAMPAIGNS BY PASSING PROPOSITION 34. IN ORDER TO PROTECT STATE LEGISLATORS FROM TAMPERING WITH THE LAW, THIS INITIATIVE ALSO REVOKED THE ABILITY OF THE LEGISLATURE TO AMEND ANY PART OF THE POLITICAL REFORM ACT WITHOUT VOTER APPROVAL. CALIFORNIANS SPOKE CLEARLY - ANY CHANGES TO THE BAN ON TAX-FINANCED CAMPAIGNS NEED TO BE APPROVED BY THE VOTERS, AND NOT JUST WITH THE PASSAGE OF A BILL BY THE LEGISLATURE. BUT IN 2016, CALIFORNIA LEGISLATORS IGNORED THE VOTERS OF THEIR STATE. THEY PASSED, AND GOVERNOR JERRY BROWN SIGNED, S.B. 1107. THAT BILL AMENDED THE POLITICAL REFORM ACT OF 1974 TO ALLOW TAX-FINANCED CAMPAIGNS AT THE STATE AND LOCAL LEVEL, IN DIRECT CONTRAVENTION OF THE LAW, THE CALIFORNIA CONSTITUTION, AND THE CLEARLY ESTABLISHED DESIRE OF VOTERS. A SACRAMENTO COUNTY SUPERIOR COURT JUDGE STRUCK DOWN THE LAW ON AUGUST 24, 2017. THE COURT RULED THE LEGISLATURE'S ATTEMPT TO BYPASS A VOTE OF THE PEOPLE PROHIBITING SUCH LEGISLATION WAS A VIOLATION OF THE CALIFORNIA CONSTITUTION AND THE 1974 POLITICAL REFORM ACT, AS AMENDED. IN HIS RULING, JUDGE TIMOTHY M. FRAWLEY NOTED THAT "THE PURPOSE OF [PROPOSITION 73] IS STRAIGHTFORWARD: TO BAN TAXPAYER FINANCING OF POLITICAL CAMPAIGNS FOR ELECTIVE OFFICE. [S.B. 1107] CONFLICTS WITH THE PURPOSES OF THE POLITICAL REFORM ACT BECAUSE IT VIOLATES THIS SPECIFIC MANDATE." JUDGE FRAWLEY WROTE THAT "THE ISSUE IN THIS CASE IS NOT WHETHER THE LEGISLATURE'S REVERSAL ON THE BAN ON PUBLIC FINANCING OF POLITICAL CAMPAIGNS IS A GOOD IDEA, IT IS ONLY WHETHER THE AMENDMENT [BY THE LEGISLATURE] FURTHERS THE PURPOSES OF THE ACT. [T]HE COURT CONCLUDES IT DOES NOT." THE HOWARD JARVIS TAXPAYERS ASSOCIATION (HJTA) IS A NONPROFIT ORGANIZATION THAT, AS PART OF ITS MISSION, REPRESENTS CALIFORNIA TAXPAYERS IN THE COURTROOM. THE ILLEGAL PASSAGE OF S.B. 1107 IS ONE SUCH INSTANCE, AND HJTA IS THE PLAINTIFF ALONG WITH QUENTIN L. KOPP, A CALIFORNIA CITIZEN, RETIRED JUDGE, AND AN ORIGINAL AUTHOR OF PROPOSITION 73. SUCCESS IN THIS CASE WILL HELP PROTECT THE INITIATIVE PROCESS IN CALIFORNIA AND ENSURE THAT TAX-FINANCED CAMPAIGNS CAN BECOME LAW ONLY WITH APPROVAL BY THE VOTERS. NOTABLE CASE ACTIONS: THE COMPLAINT WAS FILED ON DECEMBER 12, 2016 WITH THE SACRAMENTO SUPERIOR COURT. THE COURT STRUCK DOWN THE LAW ON AUGUST 24, 2017. THE STATE APPEALED THE DECISION ON JANUARY 9, 2018 TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, THIRD APPELLATE DISTRICT. BRIEFS HAVE BEEN FILED BY BOTH PARTIES. |
| CASE IN LITIGATION PART IV |
INSTITUTE FOR FREE SPEECH V. BECERRA (DISCLOSURE OF GIVING TO CHARITIES) AS IN MOST JURISDICTIONS, CHARITIES SOLICITING CONTRIBUTIONS IN CALIFORNIA ARE REQUIRED TO REGISTER WITH THE STATE. EACH YEAR, REGISTERED CHARITIES ARE REQUIRED TO FILE A COPY OF THEIR IRS FORM 990 TAX RETURNS WITH THE CALIFORNIA ATTORNEY GENERAL'S OFFICE AS A CONDITION OF MAINTAINING THEIR CONSTITUTIONALLY PROTECTED ABILITY TO SOLICIT CONTRIBUTIONS. ON SCHEDULE B OF THE FORM 990, CHARITIES ARE REQUIRED TO REPORT TO THE IRS THE NAMES, ADDRESSES, AND AMOUNT DONATED FOR MAJOR CONTRIBUTORS DURING THE YEAR. THE SCHEDULE B IS SUBMITTED TO THE IRS ON A CONFIDENTIAL BASIS AND, UNDER FEDERAL LAW, THE AGENCY IS PROHIBITED FROM RELEASING THIS INFORMATION TO ANYONE - INCLUDING STATE OFFICIALS. HISTORICALLY, THE CALIFORNIA ATTORNEY GENERAL HAS NOT REQUIRED REGISTERED CHARITIES TO FILE COPIES OF THEIR CONFIDENTIAL, UNREDACTED FORM 990 SCHEDULE B DONOR LISTS WITH THE STATE. THE ATTORNEY GENERAL ONLY BEGAN DEMANDING THIS INFORMATION IN RECENT YEARS, AND THE SUDDEN DEMANDS DID NOT ARISE FROM ANY CHANGES IN, AND ARE NOT SPECIFICALLY AUTHORIZED BY, THE STATE'S LAWS AND REGULATIONS. THE ATTORNEY GENERAL ALSO HAS NOT CITED ANY RECENT CHANGE IN CIRCUMSTANCES WARRANTING THESE DEMANDS. BECAUSE THE ATTORNEY GENERAL IS NOT LEGALLY ENTITLED TO THIS INFORMATION AND HAS NO GOOD REASON FOR DEMANDING IT, THE INSTITUTE FOR FREE SPEECH FILED SUIT TO STOP THIS PRACTICE. WE ARGUE THAT THE CALIFORNIA ATTORNEY GENERAL'S DEMAND FOR OUR DONOR INFORMATION IS AN INFRINGEMENT OF THE INSTITUTE FOR FREE SPEECH AND ITS DONORS' FIRST AMENDMENT RIGHTS TO FREE SPEECH AND ASSOCIATION. DONORS WHO MAY NOT NECESSARILY WISH TO SPEAK ON THEIR OWN ABOUT AN ISSUE MAY CHOOSE TO EXERCISE THEIR RIGHT TO SPEAK BY GIVING TO AN ORGANIZATION SPEAKING ON THEIR BEHALF. THIS IS PARTICULARLY TRUE FOR UNPOPULAR OR CONTROVERSIAL ISSUES: PRECISELY THE TYPE OF SPEECH FOR WHICH THE FIRST AMENDMENT'S PROTECTIONS ARE MOST IMPORTANT. DONORS MUST BE FREE TO GIVE TO ANY LAWFUL CAUSE OF THEIR CHOOSING WITHOUT GOVERNMENT INTRUSION. IF GOVERNMENT OFFICIALS ARE LOOKING OVER CITIZENS' SHOULDERS AND REVIEWING WHICH GROUPS THEY GIVE TO, THEY WILL CHILL DONORS' WILLINGNESS TO GIVE TO CERTAIN GROUPS, THEREBY REDUCING THEIR ABILITY TO SPEAK, AND THE EFFECTIVENESS OF THEIR ASSOCIATION. THE ATTORNEY GENERAL ALSO CLAIMS THAT THE DEFAULT RULE SHOULD BE FOR INDIVIDUAL CHARITIES OPPOSING DEMANDS FOR THEIR DONOR INFORMATION TO DEMONSTRATE THAT THEY WILL FACE PARTICULARIZED HARM FROM TURNING THE DATA OVER TO THE GOVERNMENT. IN EFFECT, THIS CREATES A CATCH-22 IN WHICH ORGANIZATIONS AND THEIR DONORS CAN CLAIM AN EXEMPTION ONLY AFTER THEY HAVE ALREADY SUFFERED HARM OR THREATS, BUT ORGANIZATIONS AND DONORS WOULD HAVE NO PROTECTION AGAINST POTENTIAL FUTURE HARM. FIRST AMENDMENT CASE LAW DOES NOT SUPPORT SUCH A BACKWARDS-LOOKING RULE. SUCCESS IN THIS CASE WOULD PROTECT THE FIRST AMENDMENT RIGHT TO FREE ASSOCIATION, AND CONSEQUENTLY THE RANGE OF OPINIONS AVAILABLE TO THE PUBLIC. IT WOULD ALSO PROTECT THE PRIVACY OF DONORS TO CHARITABLE ORGANIZATIONS, WHICH WILL ENCOURAGE THE PUBLIC TO GIVE GENEROUSLY TO SUPPORT THE CHARITABLE MISSIONS OF A WIDE VARIETY OF ORGANIZATIONS. NOTABLE CASE ACTIONS: WE FILED AN AMENDED COMPLAINT ON AUGUST 12, 2016 AND A MOTION FOR A PRELIMINARY INJUNCTION ON AUGUST 19, 2016. ON OCTOBER 31, 2017, THE FEDERAL DISTRICT COURT RULED FOR THE STATE. THE CASE IS ON APPEAL WITH THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. |
| CASE IN LITIGATION PART V |
INSTITUTE FOR FREE SPEECH V. RAVNSBORG, ET AL. (COMPELLED SPEECH, INCLUDING TOP FIVE DONOR DISCLOSURE ON FACE OF COMMUNICATION) WHEN YOU'RE THE INSTITUTE FOR FREE SPEECH, EDUCATING CITIZENS ABOUT THREATS TO THE FIRST AMENDMENT IS AN IMPORTANT PART OF YOUR WORK. BUT IF YOU DO JUST THAT ON A BALLOT MEASURE IN SOUTH DAKOTA, YOU COULD WIND UP IN JAIL. WHY? BECAUSE SOUTH DAKOTA CAMPAIGN LAWS REGULATE SPEECH BEYOND POLITICAL ADS. A RECENTLY ADOPTED LAW REGULATES ANY EXPENDITURE FOR ANY COMMUNICATION "CONCERNING" A BALLOT MEASURE. IN ORDER TO PUBLISH OUR EDUCATIONAL ANALYSIS OF A PENDING 2018 BALLOT MEASURE, THE INSTITUTE FILED A LAWSUIT IN FEDERAL COURT CHALLENGING THE LAW'S CONSTITUTIONALITY. THE LAW IMPOSES ABSURD DISCLAIMER REQUIREMENTS ON GROUPS THAT SPEAK ABOUT BALLOT MEASURES. THESE INCLUDE, BUT ARE NOT LIMITED TO, A MANDATE THAT THE PUBLICATION LIST THE ORGANIZATION'S TOP INDIVIDUAL CONTRIBUTORS, EVEN WHERE THOSE DONORS HAD NO KNOWLEDGE OF THE PUBLICATION. THIS RULE VIOLATES THE PRIVACY OF DONORS WHO WOULD OTHERWISE REMAIN PRIVATE. FAILURE TO FOLLOW THE LAW CAN RESULT IN PROSECUTION AND FINES. WORSE, SOUTH DAKOTA PROVIDES NO WAY TO GET ADVICE FROM THE STATE ABOUT THE REACH OF THE LAW. AS A RESULT, THE INSTITUTE FOR FREE SPEECH TURNED TO THE COURTS TO GET ITS ANSWER. THE INSTITUTE ASKED A FEDERAL COURT TO ALLOW US TO PUBLISH OUR ANALYSIS OF TWO BALLOT MEASURES WITHOUT PROSECUTION BY SOUTH DAKOTA. ON OCTOBER 16, 2018, JUDGE ROBERTO A. LANGE, A JUDGE APPOINTED BY PRESIDENT BARACK OBAMA, RULED IN OUR FAVOR. HIS ORDER BARRED THE STATE FROM PROSECUTING US FOR PUBLISHING OUR ANALYSIS. THE NEXT DAY, WE PUBLISHED THE ANALYSIS ONLINE AND THEN ANNOUNCED IT IN A PRESS RELEASE. THE COURT'S ORDER ALLOWING US TO PUBLISH OUR ANALYSIS WAS A SIGNIFICANT VICTORY FOR IFS, BUT PROBLEMS IN THE LAW REMAIN, AND THE CASE REMAINS UNDER LITIGATION. SUCCESS IN THIS CASE WOULD PROTECT THE FIRST AMENDMENT RIGHT TO A FREE PRESS, INCREASING INFORMATION AVAILABLE TO THE PUBLIC. IT WOULD ALSO PROTECT DONOR AND ASSOCIATIONAL PRIVACY. |
| CASE IN LITIGATION PART VI |
JOE MARKLEY AND ROB SAMPSON V. STATE ELECTIONS ENFORCEMENT COMMISSION (LIMITS ON CANDIDATE SPEECH) IN THIS CASE, THE INSTITUTE FOR FREE SPEECH SEEKS TO PROTECT VOTERS' RIGHT TO HEAR IMPORTANT INFORMATION ABOUT ELECTIONS AND CANDIDATES. CONNECTICUT'S STATE ELECTIONS ENFORCEMENT COMMISSION (SEEC) FINED TWO GENERAL ASSEMBLY MEMBERS FOR CAMPAIGN MAILERS THAT DISCUSSED THE GOVERNOR'S POLICIES. WITH THE HELP OF IFS, THE TWO CANDIDATES ARE FIGHTING BACK. JOE MARKLEY, FORMERLY A STATE SENATOR, AND ROB SAMPSON, THEN A STATE REPRESENTATIVE (AND NOW A STATE SENATOR), WERE ENSNARED BY THE LAW AFTER THEY DECIDED TO SPLIT THE COSTS ON A SERIES OF STANDARD CAMPAIGN MAILERS HIGHLIGHTING THEIR ACHIEVEMENTS IN OFFICE. THE MAILERS PROMOTED MARKLEY AND SAMPSON AS OPPONENTS OF GOVERNOR DANNEL MALLOY'S POLICIES ON TAXES AND GOVERNMENT SPENDING. MALLOY WAS ALSO ON THE BALLOT THAT YEAR. BY CRITICIZING THE GOVERNOR'S RECORD, THE SEEC ARGUED THAT MARKLEY AND SAMPSON MADE AN ILLEGAL EXPENDITURE ON BEHALF OF THE GOVERNOR'S OPPONENT. THE SEEC ORDERED SAMPSON TO PAY A $5,000 FINE AND ORDERED MARKLEY TO PAY A $2,000 FINE. IN ORDER FOR THE ADS TO BE LEGAL, THE SEEC BELIEVES THE GOVERNOR'S OPPONENT WOULD HAVE HAD TO APPROVE AND SHARE THE COSTS OF THE ADS. THIS IS HIGHLY UNREALISTIC AND WOULD RESULT IN LEGISLATIVE CANDIDATES BEING EFFECTIVELY PROHIBITED FROM SPEAKING ABOUT THE GOVERNOR'S POLICIES IN CAMPAIGN ADS. MARKLEY AND SAMPSON ARE REPRESENTED BY THE INSTITUTE FOR FREE SPEECH AND CONNECTICUT ATTORNEY DOUG DUBITSKY. WE ASKED A CONNECTICUT COURT TO DISMISS THE FINES AND DECLARE THE LAW UNCONSTITUTIONAL. AFTER THE STATE COURT RULED THAT IT COULD NOT RULE ON THE CASE BECAUSE TOO MUCH TIME HAD PASSED, OUR CLIENTS APPEALED. THE CONNECTICUT SUPREME COURT HAS AGREED TO HEAR THE APPEAL. SUCCESS IN THIS CASE WOULD PROTECT THE FIRST AMENDMENT RIGHTS TO SPEAK AND PUBLISH. |
| CASE IN LITIGATION PART VII |
MASSACHUSETTS FISCAL ALLIANCE V. SULLIVAN (COMPELLED SPEECH, INCLUDING TOP FIVE DONOR DISCLOSURE AND CEO DISCLAIMER ON FACE OF COMMUNICATION) CAN THE GOVERNMENT HIJACK OVER 20 PERCENT OF AN ISSUE AD TO PROMOTE THE STATE'S MESSAGE? CAN IT FORCE A SPEAKER TO NAME FIVE PEOPLE ON THE FACE OF A PRINT, INTERNET, OR TELEVISION AD, EVEN IF THOSE PEOPLE HAD NOTHING TO DO WITH THE COMMUNICATION'S PRODUCTION? THOSE ARE THE QUESTIONS POSED IN MASSACHUSETTS FISCAL ALLIANCE V. SULLIVAN. MASSACHUSETTS, LIKE MANY STATES, HEAVILY BURDENS POLITICAL SPEECH BY FORCING GROUPS TO TAKE A MORE FORMAL ORGANIZATIONAL STATUS, LIMITS CONTRIBUTIONS TO GROUPS AND CANDIDATES, AND ADMINISTERS AN INTRUSIVE DONOR DISCLOSURE REGIME. BUT THE COMMONWEALTH GOES EVEN FURTHER THAN OTHER JURISDICTIONS, CO-OPTING PRIVATE POLITICAL ENTITIES TO SPEAK GOVERNMENT-DRAFTED SCRIPTS ON CAMERA AND FORCING GROUPS TO FORFEIT THE PRIVACY OF THEIR DONORS AS A CONDITION OF TALKING ABOUT POLICY. THE MASSACHUSETTS FISCAL ALLIANCE WANTS TO RUN PRINT, RADIO, TELEVISION, AND INTERNET COMMUNICATIONS THAT FOCUS ON TWO LEGISLATIVE ISSUES: A TAX INCREASE PROPOSAL AND A LEGISLATIVE PAY RAISE. BECAUSE THOSE ADS WILL, BY THE NATURE OF THEIR CONTENT, REFERENCE AN OFFICEHOLDER, THE COMMONWEALTH DEMANDS THAT THE ALLIANCE'S CHAIRMAN APPEAR ON TELEVISED COMMUNICATIONS FOR NEARLY 20 PERCENT OF THE LENGTH OF AN AD AND, FOR BOTH RADIO AND TV ADS, PERSONALLY READ A SCRIPT WRITTEN FOR HIM BY THE STATE. WHY MASSACHUSETTS FEELS THE NEED TO FORCE THIRD PARTY ADVERTISERS TO SHOW THE RACE, GENDER, SEX, SPEECH PATTERN, AND OTHER IRRELEVANT PERSONAL CHARACTERISTICS OF A GROUP'S PRINCIPAL OFFICER IS UNCLEAR. DISCLOSURE, AT LEAST IN THEORY, IS ABOUT GIVING RELEVANT INFORMATION TO THE VOTERS SHORTLY BEFORE AN ELECTION - AND THIS INFORMATION IS INHERENTLY UNHELPFUL TO THE ELECTORATE. THE COMMONWEALTH COMPOUNDS THIS CONSTITUTIONAL INJURY BY COMPELLING EVEN MORE SPEECH. EVEN GROUPS THAT DO NOT FALL INTO MASSACHUSETTS'S ROBUST DONOR DISCLOSURE REGIME, LIKE THE ALLIANCE, ARE FORCED TO PUBLICIZE THEIR TOP FIVE FUNDERS ON THE FACE OF THEIR COMMUNICATIONS. ONCE AGAIN, THIS INFORMATION WILL BE USELESS TO THE VOTERS - NONE OF THE LISTED PERSONS WILL HAVE NECESSARILY GIVEN TO FUND THE AD, AND THEY MAY NOT EVEN AGREE WITH IT. NEVERTHELESS, MASSACHUSETTS HAS DECIDED THAT DONOR PRIVACY MUST BE DONE AWAY WITH - EVEN IF THERE IS NO ARTICULABLE BASIS TO ARGUE THE PEOPLE LOSING THAT PRIVACY TRULY AUTHORED OR FUNDED THE AD. ON ELECTION DAY, JUDGE RYA W. ZOBEL DENIED THE ALLIANCE'S REQUEST FOR A PRELIMINARY INJUNCTION. THE GROUP SUBSEQUENTLY RAN THE ISSUE COMMUNICATIONS IT HAD INTENDED - WITHOUT THE DISCLAIMERS, WHICH ARE ONLY REQUIRED BEFORE THE ELECTION. THE CASE REMAINS PENDING. SUCCESS IN THIS CASE WOULD PROTECT THE FIRST AMENDMENT RIGHTS TO SPEAK AND PUBLISH. IT WOULD ALSO PROTECT DONOR AND ASSOCIATIONAL PRIVACY. |
| CASE IN LITIGATION PART VIII |
THOMAS V. SCHROER (CONSTITUTIONALITY OF STATE POLITICAL SIGN REGULATIONS ON PRIVATE PROPERTY) THE INSTITUTE FOR FREE SPEECH IS REPRESENTING WILLIAM H. THOMAS, JR. IN THE STATE'S APPEAL OF A RULING THAT TENNESSEE'S SIGN RULES ARE UNCONSTITUTIONAL. IN MARCH 2017, A FEDERAL JUDGE RULED FOR THOMAS, SAYING TENNESSEE LAW VIOLATED THE FIRST AMENDMENT BY CREATING "AN UNCONSTITUTIONAL, CONTENT-BASED REGULATION OF SPEECH." MR. THOMAS OWNS SEVERAL ROADSIDE SIGNS. THIS APPEAL CONCERNS ONE SUCH SIGN, WHICH MR. THOMAS HAS USED TO EXPRESS VARIOUS NON-COMMERCIAL MESSAGES AND OPINIONS, SUCH AS CHEERING ON U.S. ATHLETES DURING THE OLYMPICS AND CELEBRATING "THE GLORY OF THE SEASON" DURING THE HOLIDAYS. TENNESSEE HAS SOUGHT TO TEAR DOWN MR. THOMAS'S SIGN, BUT CRUCIALLY, IT WOULD NOT ATTEMPT TO DO SO HAD IT ADVERTISED ON-SITE COMMERCIAL ACTIVITY OR THE SALE OF HIS PROPERTY. SUCH ADS ARE EXEMPT UNDER THE LAW GOVERNING BILLBOARDS IN TENNESSEE. SO IF A NEARBY AUTO BODY SHOP WANTED TO ADVERTISE A SALE ON TIRES WITH THE SAME-SIZED BILLBOARD, IT COULD DO SO. AS A RESULT OF THIS EXEMPTION, THE STATE MUST LOOK TO A SIGN'S CONTENT TO DETERMINE WHETHER IT SHOULD BE REGULATED. THIS CREATES A MAJOR FIRST AMENDMENT PROBLEM. A LAW THAT PERMITS A SIGN THAT SAYS "CHEAP CIGARETTES HERE," BUT PROHIBITS AN IDENTICAL-SIZED SIGN THAT READS "CUT THE PROPERTY TAX OR "PASS THE CLEAN WATER ACT" IS A CONTENT-BASED RESTRICTION ON SPEECH. SUCH RESTRICTIONS MUST SURVIVE STRICT SCRUTINY. TENNESSEE APPEALED THE LOWER COURT'S RULING LAST OCTOBER. THE INSTITUTE FOR FREE SPEECH IS REPRESENTING THOMAS DURING THE APPEAL BUT WAS NOT INVOLVED IN THE CASE PREVIOUSLY. THE CASE, KNOWN AS THOMAS V. SCHROER, IS CURRENTLY BEFORE THE SIXTH CIRCUIT COURT OF APPEALS. AS THE LOWER COURT DECISION RECOGNIZED, TENNESSEE HAS FAILED TO PROVE A VALID REASON FOR ITS TWO-TRACK REGULATORY SYSTEM FOR BILLBOARDS. "IN THE INSTANT CASE, THE COURT FINDS THE STATE'S INTERESTS IN AESTHETICS AND TRAFFIC SAFETY ARE NOT COMPELLING INTERESTS... THE PROVISIONS AT ISSUE HERE CONCERN THE DISTINCTION BETWEEN SIGNS WITH CONTENT CONCERNING ON-PREMISES-RELATED ACTIVITY VERSUS OTHER MESSAGES. THE STATE FAILS TO ESTABLISH HOW THIS SPECIFIC DISTINCTION RELATES TO TRAFFIC SAFETY AND AESTHETICS," WROTE JUDGE JON P. MCCALLA. IN HIS OPINION, JUDGE MCCALLA FOUND THAT EVEN IF THE STATE HAD PROVED THE INTERESTS WERE VALID, THE LAW "IS NOT NARROWLY TAILORED TO THOSE INTERESTS." HE AGREED THAT THOMAS HAD SUGGESTED FIVE POSSIBLE ALTERNATIVES THAT WERE LESS BURDENSOME ON SPEECH. SUCCESS IN THIS CASE WOULD PROTECT THE FIRST AMENDMENT RIGHTS TO SPEAK AND PUBLISH. |
| CASES CLOSED IN 2018 |
HOLMES, ET AL. V. FEDERAL ELECTION COMMISSION (IRRATIONAL CONTRIBUTION LIMITS) THIS CASE RAISED AN AS-APPLIED FIRST AMENDMENT CHALLENGE TO A LAW THAT OFTEN ALLOWS CONGRESSIONAL INCUMBENTS TO RAISE TWICE AS MUCH FOR THEIR GENERAL ELECTION CAMPAIGNS AS CHALLENGERS. FEDERAL CAMPAIGN FINANCE LAWS LIMIT RELEVANT CAMPAIGN CONTRIBUTIONS TO $2,700 FOR THE PRIMARY ELECTION AND $2,700 FOR THE GENERAL ELECTION. HOWEVER, DONATIONS OF $5,400 ARE PERMITTED THROUGH THE DAY OF THE PRIMARY, THOUGH ONLY HALF THAT AMOUNT CAN BE SPENT ON THE PRIMARY RACE. INCUMBENTS, WHO FACE COMPETITIVE PRIMARIES AT A LOWER RATE THAN CHALLENGERS, CAN RAISE UP TO $5,400 IN A SINGLE CONTRIBUTION AND OFTEN SPEND IT ALL ON THE GENERAL ELECTION. A CHALLENGER, ON THE OTHER HAND, WILL USUALLY HAVE TO DEFEAT OPPONENTS IN THE PRIMARY ELECTION AND HAVE SCANT PRIMARY FUNDS LEFT TO SPEND ON THE NOVEMBER CONTEST. AFTER WINNING A PRIMARY, CHALLENGERS MAY RAISE JUST $2,700 PER DONOR FOR THE GENERAL ELECTION. THIS STATE OF AFFAIRS EFFECTIVELY HALVES THE GENERAL ELECTION CONTRIBUTION LIMIT FOR CANDIDATES FACING A COMPETITIVE PRIMARY. ON NOVEMBER 28, 2017, THE D.C CIRCUIT COURT OF APPEALS COURT UPHELD THE LAW. THE U.S. SUPREME COURT DECLINED TO REVIEW THE DECISION IN FEBRUARY 2018. |
| FORM 990, PART XII, LINE 2C: |
THE NOVEMBER TEAM, ET AL., V. JOINT COMMISSION ON PUBLIC ETHICS (LOBBYING DISCLOSURE) IN RESPONSE TO OUR LITIGATION ON BEHALF OF A CROSS-IDEOLOGICAL GROUP OF PR FIRMS, THE NEW YORK STATE JOINT COMMISSION ON PUBLIC ETHICS (JCOPE) AGREED TO CHANGE ITS REGULATIONS THAT REQUIRED PUBLIC RELATIONS PROFESSIONALS TO REGISTER AND REPORT AS LOBBYISTS. THAT AGREEMENT CAME AFTER AN APPEAL WAS FILED WITH THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT. IN RESPONSE, THE PARTIES IN THE LITIGATION AGREED TO END THE LAWSUIT. THE CASE WAS FINALLY CLOSED IN MAY 2018 WHEN JCOPE REVISED THE REGULATION IN A MANNER THAT RESPECTED FIRST AMENDMENT RIGHTS. |
Attach to Form 990 or 990-EZ.