February 26, 2008

Today / 02.26.08

Happy birthday to Jeremy Bentham, and welcome to the blawgosphere to Tom Bruce and the rest of the Cornell Legal Information Institute.

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February 7, 2008

Bar Exam Hiatus

With less than three weeks left before the February bar exam, I'm going offline until the 28th. Then I'll be posting until March 15 -- the fourth anniversary of De Novo -- when I will stop blogging. My law student status technically ceases next Thursday when I graduate, and the bar exam is the last vestige of it. In the interim, I hope to hear from current and future law students who have an interest in blogging and were looking for a good place to do it. I would love to see De Novo continue as an active student blawg.

UPDATE: Why I also will be ceasing to comment on other people's blogs, edit Wikipedia, or otherwise engage in online writing except as encouraged by a salaried position.

If I used to comment regularly at your blog and you actually miss having me rip on your other commenters, please e-mail.

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February 2, 2008

Religious Voter Guides: The Good, the Questionable, and the "Lawyers Approved That? Really?"

In order for contributions to it to be tax-deductible, no 501(c)(3) entity can allow a substantial part of its activities to be lobbying, i.e. attempting to influence legislation. I'm not really sure how this works out for, say, the Virginia chapter of the ACLU, which seems to spend a lot of time on legislation judging by the emails it sends me. Much more clear-cut than the "substantial" test applied for lobbying is the absolute prohibition on 501(c)(3)s from "directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office." It is a fairly easy rule to follow, like the pre-FEC v. WRTL version of the 60-day rule against ads just before an election: you can talk about the issues, just don't mention candidates' names.

The Voter's Guide for Serious Catholics sets a gold standard for religious voter guides. It lays out clearly what the obligations of a Catholic voter are, the Church's stance on various issues and why a candidate may permissibly support invading Iraq but not legalize abortion. (In brief, the ultimate goals of "peace" or "solidarity with the poor" may plausibly be believed achievable through different means, including preemptive war or having aid to the poor go through the private sector rather than government; the ultimate goals of respecting human life or maintaining the moral institution of marriage is not plausibly achievable through abortion, euthanasia, embryonic stem cell research, cloning or same-sex marriage.)

The Catholic Guide also is not specific to a single election. It mentions neither candidates nor parties, only the "non-negotiable" values and general principles of the Catholic faith. If anyone tried to prevent churches from handing out this guide, I'd be happy to work pro bono for the churches to ensure that they retained their 501(c)(3) status. This is exactly what the role of a church in politics ought to be: clarifying for its members what their shared moral commitments are, and urging them to be active in putting those commitments into the polity. I disagree with the Catholic church on every single "non-negotiable" issue except human cloning (I favor the legality of abortion, euthanasia, embryonic stem cell research and same-sex marriage), but they are behaving just as they should in the political sphere. The prefatory statement on the guide, "Nothing in this voter's guide should be construed as an endorsement of any particular candidate or political party," is extraneous.

Protestant evangelicals are less savvy and far more in need of such disclaimers. Despite the lack of them, the Minnesota Family Institute (associated with James Dobson and Focus on the Family) issued a presidential voting guide that I think is OK for churches because it's not totally obvious about what the appropriate stance on the issue is. For example, on the two more overtly moral issues of Marriage and Stem Cell Research, it frames the query as "Federal Marriage Amendment" and "Public Funding of Human Embryos," and then says whether a candidate "supports" or "opposes." A voter would actually have to stop and think whether he himself supports or opposes each of these. A typical conservative voter probably would support the first and oppose the second. But because of this framing, the guide comes across as educational rather than simply directive.

The IRS says, "voter education or registration activities with evidence of bias that: (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention." The MFI guide dodges a violation of this rule by varying its presentation of issues. Some are ones that the MFI probably thinks candidates should oppose; some are ones that the MFI probably thinks candidates should support. The overall effect is to lay out the information and let voters align themselves.

I first thought about religious voter guides thanks to the American Family Association's emailing me me today:

AFA will not bow down to a threat from a liberal left-wing group

The Rev. Barry Lynn, the executive director of Americans United for Separation of Church and State, has asked that the Internal Revenue Service investigate the American Family Association. Lynn says that AFA has violated IRS rules by distributing a voters guide.

For years, Rev. Lynn and his Americans United, along with groups such as the American Civil Liberties Union and People for the American Way, have used threats to silence Christians in an attempt to take away their First Amendment rights. The tragedy is that he has been successful in silencing thousands of ministers.

Let me make one thing clear to Rev. Lynn and his cohorts. We have no intention of bowing down to his threatening demands. Rev. Lynn is mistaken if he thinks his threat will scare this minister from exercising his First Amendment rights.

Lynn has also included a threat to churches. Trying to scare ministers from exercising their rights, Lynn said: "Any church that distributes these biased guides is risking its tax exemption and casting aside its integrity."

The AFA Voters Guide was developed by three constitutional lawyers and reviewed by three more constitutional lawyers following Rev. Lynn's threat. All agreed that the voters guide is perfectly legal.

The Alliance Defense Fund has offered to represent (free of charge) churches or organizations which distribute the voter's guide and encounter opposition from either Lynn or the IRS.

Thank you for caring enough to get involved. If you feel our efforts are worthy of support, would you consider making a small tax-deductible contribution? Click here to make a donation.

Donald E. Wildmon, Founder and Chairman American Family Association

I am really curious as to the identity of these constitutional lawyers who OKed the guide before it went out the door*, because it certainly doesn't bespeak the normal caution of a practicing attorney. Like the MFI guide, it lacks a disclaimer and specifies candidate names and non-religious issues, but it is utterly lacking in the MFI's claim to being educational rather than directive. The AFA guide's list of issues is presented as follows:
Human Life Amendment - Supports a national Human Life Amendment
Traditional Marriage - Supports a Federal Marriage Amendment defining marriage as between one man and one woman only
Gun Rights - Opposes an assault weapons ban
Business Freedom - Opposes laws forcing business to favor homosexuality
Limit Taxes - Signed AFTR Pledge to not raise taxes
Opposes Gay Pride - Refused to support Gay Pride celebrations
Iraq War - Opposes immediate removal of troops from Iraq
Moral Education - Opposes curriculum that promotes homosexuality
It's rather clear that the AFA's preferred candidate will answer yes to every question. And what do we have here on the Republican page, but Mike Huckabee with a line of yeses running down the column; what do we have on the Democratic page, but a solid wall of nos from every candidate. It is almost impossible to glance at this guide and not see that it has "evidence of bias that: (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates."

The guide may survive its attack -- and in the world of the American Family Association, every move from a liberal group is another reason to send out an email bemoaning its troubles and asking for more money, so perhaps they deliberately tread close to the line of what was permissible. With the war on Christmas in abeyance for the next several months, the AFA's gotta justify its existence and raise donations somehow. Still, in the unlikely event that the AFA spent tax-exempt contributions on lawyers who were supposed to approve this guide to be well within IRS guidelines, Wildmon should ask for the money back.

The IRS explanation of the law is as follows:

Voter Guides
Like other IRC section 501(c)(3) organizations, some churches and religious organizations undertake voter education activities by distributing voter guides. Voter guides, generally, are distributed during an election campaign and provide information on how all candidates stand on various issues. These guides may be distributed with the purpose of educating voters; however, they may not be used to attempt to favor or oppose candidates for public elected office.
A careful review of the following facts and circumstances may help determine whether or not a church or religious
organization�s publication or distribution of voter guides constitutes prohibited political campaign activity:
■ whether the candidates� positions are compared to the organization�s position,
■ whether the guide includes a broad range of issues that the candidates would address if elected to the
office sought,
■ whether the description of issues is neutral,
■ whether all candidates for an office are included, and
■ whether the descriptions of candidates� positions are either:
- the candidates� own words in response to questions, or
- a neutral, unbiased and complete compilation of all candidates� positions.

The following are examples of situations where churches distribute voter guides.

Example 1: Church R distributes a voter guide prior to elections. The voter guide consists of a brief statement from the candidates on each issue made in response to a questionnaire sent to all candidates for governor of State I. The issues on the questionnaire cover a wide variety of topics and were selected by Church R based solely on their importance and interest to the electorate as a whole. Neither the questionnaire nor the voter guide, through their content or structure, indicate a bias or preference for any candidate or group of candidates. Church R is not participating or intervening in a political campaign.

Example 2: Church S distributes a voter guide during an election campaign. The voter guide is prepared using the responses of candidates to a questionnaire sent to candidates for major public offices. Although the questionnaire covers a wide range of topics, the wording of the questions evidences a bias on certain issues. By using a questionnaire structured in this way, Church S is participating or intervening in a political campaign.

* It presumably was someone at Liberty Counsel, due to the small legend "Approved for 501(c)3 distribution by Liberty Counsel." On their own site, LC links voter guides of varying levels of education rather than direction. The Wallbuilders are identical to AFA; the Florida Family Policy Council identical to MFI; Faith Action's chart has a longer list of issues but follows the same "yes is good, no is bad" format as AFA and Wallbuilders. However, Faith Action's Values Voter reports are much better, as they give the candidates' own words on issues instead of a yes/no format. The best of the lot is Mike Farris's, which does not have such an obvious stance on every issue (his is the only one to include waterboarding, and I honestly can't tell if he's for or against it).

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February 1, 2008

What Bush Does When He Finds Something Really Unconstitutional

A favorite grudge against Sen. John McCain among conservative leaders and lawyers is that he sponsored campaign finance reform legislation that they deem to be a violation of the core First Amendment right to political speech. Particularly troubling for them was the non-lawyer McCain's supposedly urging his Congressional colleagues who had reservations about the law's constitutionality to vote for it and let the Supreme Court decide which provisions passed constitutional muster.

Due to the unpopularity of judicial power on the right, this is viewed as not only a bad thing to have said about the particular law, but an inherently dangerous view for any member of the other two branches of government to hold. While the courts have judicial review over the constitutionality of legislation and the executive's interpretation of its statutory and constitutional powers, Congress and the President nonetheless swear to uphold the Constitution* and are obliged to act within the bounds of what they understand the Constitution to mean. Simply abdicating all constitutional understanding to the courts is a failure of duty and is particularly alarming to conservatives who fear kritarchy.

McCain's attitude of legislate it all and let SCOTUS sort 'em out stands in particular contrast to the current Republican president. Although Bush signed McCain-Feingold stating his own doubts of its constitutionality, he did not issue a signing statement of the sort he has with legislation that he deems to encroach upon his unitary executive powers. Evidently Congress's abrogating the freedom of speech is something that the courts can be left to figure out, but Congress's mandating that no funds be spent for a "permanent" U.S. military presence in Iraq is something that Bush must declare unconstitutional immediately. And no expecting "that the courts will resolve these legitimate legal questions as appropriate under the law" when it comes to Congress's prohibiting the administration from establishing permanent bases in Iraq or controlling Iraqi oil resources; establishing a congressional commission to review military contracts in Iraq; protecting contractor whistle-blowers; and putting a 45-day deadline on U.S. intelligence agencies to respond to information requests from Congress' committees on intelligence and armed services. Nope, then it's just "The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President."

* The Constitution prescribes a specific oath for the president, but not for anyone else. Art. II Sec. 1 states, "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'"

In contrast, Art. I doesn't mention any oath. Art. VI says, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

The First Congress's version of this requirement was "I do solemnly swear (or affirm) that I will support the Constitution of the United States." I greatly prefer it to the wordy remnant of Civil War suspicions that is used today: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

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