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You're Hired: Tracking the Trump Administration Transition - March 22, 2017
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This is the March 22, 2017, edition of an email sent from November 2016 to September 2017 that covered Donald Trump's presidential transition, cabinet appointees, and the different policy positions of those individuals who may have had an effect on the new administration. Previous editions of "You're Hired" can be found here.
During yesterday’s confirmation hearings for U.S. Supreme Court nominee Neil Gorsuch, Sen. Sheldon Whitehouse (D-R.I.) questioned Gorsuch on the role of undisclosed campaign contributions through certain types of nonprofit organizations, including 501(c)(4) advocacy groups and 501(c)(6) labor unions.
Today, we will give some background on two issues behind Whitehouse’s line of questioning. First, we’ll go through Citizens United, the landmark U.S. Supreme Court case that is often referenced in discussions of contribution disclosures and campaign finances. Second, we’ll look at the nonprofit organizations advocating for and against Gorsuch’s confirmation, which Whitehouse also referenced in his questions.
Citizens United v. FEC
What was it?
Citizens United v. FEC was a 2010 case in the U.S. Supreme Court that struck down certain provisions in the Bipartisan Campaign Reform Act (commonly called the McCain-Feingold Act) of 2002. The case concerned a nonprofit organization, Citizens United, and whether the group's film critical of a political candidate could be defined as an electioneering communication under McCain-Feingold. One prohibition of McCain-Feingold was that corporations, nonprofits, and unions could not make expenditures on broadcasts mentioning a candidate.
The court ruled that the First Amendment right to free speech applies to corporations and thus the government cannot limit their political spending. As a result, corporations, nonprofits, and unions were allowed to spend an unlimited amount of money on independent broadcasts.
Read our overview of the Citizens United decision.
Certain nonprofits, like 501(c)(4) social welfare groups and 501(c)(6) labor unions, are not required to publicly disclose their donors. They are required to publicly disclose their tax exemption application (IRS Form 1024) and a portion of their annual tax returns (IRS Form 990), but the names and addresses of contributors who give over $5,000—contained in the organization’s Form 990, Schedule B—is kept private.
An individual could donate an unlimited amount of money to one of these organizations, which could then, in turn, spend an unlimited amount of money on independent political expenditures.
How did this come up in yesterday’s hearing?
Sen. Whitehouse questioned Gorsuch on the Citizens United ruling, asking, “Do you think there’s a public interest in disclosure of political funds in a democracy?” Gorsuch answered, “What I’m prepared to say is, I recognize that as a matter of First Amendment interests, the Supreme Court has validated the proposition that disclosure serves important functions in a democracy. At the same time, the Supreme Court’s also acknowledged that those disclosure functions can sometimes themselves have unintended consequences.”
Advocacy campaigns concerning Gorsuch’s confirmation
Who is advocating? And what are they advocating?
Self-described conservative and progressive organizations both have organized campaigns concerning this confirmation.
In January, the conservative Judicial Crisis Network—a 501(c)(4) organization—launched an advocacy campaign in favor of Gorsuch’s confirmation, saying they would look to hold Democrats who opposed the nomination accountable. The group previously coordinated an ad campaign called “Let the People Decide,” opposing President Obama’s nomination of Merrick Garland to that position in 2016.
Democratic-leaning organizations opposing Gorsuch’s nomination have coalesced into a group calling itself The People’s Defense. Members of The People’s Defense include:
- The American Federation of Teachers
- CREDO Action
- Daily Kos
- Democracy for America
- Demos
- End Citizens United
- Every Voice
- Indivisible
- Lambda Legal
- MoveOn.org
- NARAL Pro-Choice America
- National LGBTQ Task Force
- People For the American Way
- Progressive Change Campaign Committee
- Service Employees International Union
- Stand Up America
- Ultraviolet
- Working Families Party
The coalition has aimed to present Gorsuch as a judge who would seek to overturn Roe v. Wade and who would be favorable to corporations.
What form does this advocacy take?
Advertisements, mostly on television and on Facebook. Both sides are targeting the same group of lawmakers—Democratic senators up for re-election in 2018 in states that President Trump carried in 2016.
The Judicial Crisis Network has bought air time in Missouri, North Dakota, Indiana, and Colorado. Their advertising generally makes the claim that Democratic senators from these states should confirm Gorsuch because Gorsuch has values that align with those of that particular state. The group’s ad in Indiana—aimed at Sen. Joe Donnelly (D)—states, “Joe Donnelly has a chance to confirm a Supreme Court nominee with Indiana values. Neil Gorsuch is fair and devoted to the Constitution. Tell Joe Donnelly, confirm Gorsuch.”
For its part, The People’s Defense has launched an online ad campaign aimed at some of these same Democratic senators. Like the Judicial Crisis Network, these ads encourage voters to call senators and express their opinions on Gorsuch. The organization has specifically targeted Pennsylvania Sen. Bob Casey (D), advertising on Facebook, “Gorsuch has sided with an effort to defund Planned Parenthood, favored big corporations over employees, and would vote to overturn Roe v. Wade. Call Senator Bob Casey and tell him to keep Gorsuch off the bench.”
As a 501(c)(4), the Judicial Crisis Network is not required to publicly disclose its donors over $5,000.
Member organizations in The People’s Defense are either 501(c)(4) nonprofits or labor unions, neither of which are required to disclose donors over $5,000.
See also
- You're Hired: Tracking the Trump Administration Transition
- Donald Trump presidential transition team
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