“For the People” Act: Donor Disclosures, Free Speech Threats, and Other Bad Ideas

Is it campaign finance reform, or yet another threat of harm to First Amendment rights affecting donors and tax-exempt organizations?  This spring, the U.S. House of Representatives passed an “omnibus” campaign finance bill called “For the People Act,” (H.R. 1) which addresses a wide range of election and related matters. The Act expressly excludes Section 501(c)(3) public charities from its donor disclosure and reporting requirements, but not Section 501(c)(4) social welfare or other tax-exempt organizations.  While the proposed legislation likely will go nowhere in the Senate, it warrants notable mention in the following ways.

The Silver Lining of the Dissent in Americans for Prosperity Foundation's Denial of Rehearing "En Banc"

Can controversial groups expect government protection from mandatory disclosures of their participants? Not as the Americans for Prosperity Foundation has painfully learned in California. APF suffered yet another court setback in the federal appellate Ninth Circuit Court of Appeals’ recent denial of an en banc (full court) rehearing. APF has fought the California Attorney General’s mandatory donor disclosures in annual filings, citing First Amendment freedom of speech, association rights, and related concerns for donors’ privacy and protection from harassment. 

“Play Between the Joints” and Tax Theory: Reflections on Seventh Circuit’s Clergy Housing Allowance Ruling

On March 15, 2019, the Seventh Circuit issued its Gaylor v. Mnuchin ruling, upholding the clergy housing allowance’s constitutionality.  This decision astutely recognizes that the fundamental questions in this case fall in a jurisprudentially gray area, or within the “play in the joints” between the First Amendment’s Free Exercise and Establishment clauses.  Between these two foundational pillars of our liberal democracy, the Court’s constitutional interpretation rightly respects the independence of institutions for a free society, particularly as applied to the clergy housing allowance.  Such deference further implicates the interplay between tax subsidy theory and religion.