President Obama: Don’t Empower an Unaccountable and Violent Agency

November 21st, 2014 No Comments   Posted in ACLU Nationwide
By Vicki B. Gaubeca, ACLU of New Mexico

Which American police force had an officer arrested for misconduct almost every single day between 2005 and 2012?

Hint: It’s the same one that was responsible for at least 31 fatal encounters with private individuals since 2010, without a single instance of public accountability. It’s also the one that claims authority to reduce Americans’ constitutional rights within 100 miles of any external land or sea boundary.

No idea? The agency I’m talking about is Customs and Border Protection (CBP).

It’s a little known fact that CBP is the largest law enforcement agency in the country, with more than 21,000 port-of-entry officers and 21,000 Border Patrol agents. What’s becoming clearer all the time is that CBP is a police force in crisis. According to its former head of Internal Affairs, James F. Tomsheck, thousands of CBP personnel hired in the last decade’s massive growth are “potentially unfit to carry a badge and gun.” Furthermore, he says seven or more of CBP’s shooting deaths are “highly suspect.”

CBP’s pattern of abuse and misconduct is exacerbated by an unprecedented militarization of our borders. Rep. Hal Rogers (R-Ky.), chairman of the House Appropriations Committee, has called border spending – on everything from drone surveillance to equipment intended for war zones – a “mini industrial complex syndrome.” In this context, the last thing I’d expect as a Las Cruces, New Mexico-based advocate for border communities is more enforcement resources.

President Obama and Homeland Security Secretary Jeh Johnson are readying the country for another “surge” in border-security resources as part of the administration’s welcome announcement of administrative relief for undocumented immigrants. But their plan isn’t rooted in true border- security needs: The administration has regularly touted its tough enforcement record as producing the most secure border in American history. Nor was this summer’s migration of families and children fleeing violence in Central America a border-security problem: CBP leadership correctly identified moms and kids turning themselves in as a humanitarian matter.

The president and his top officials seem to be accepting a mistaken perception of border communities. Rather than celebrating these communities’ top-of-the-charts safety, economic vitality, and diversity, the administration has treated border residents as second-class citizens, suspects rather than people deserving equal respect and dignity. President Obama needs to make clear that he will not increase the number of Border Patrol agents or otherwise worsen the effect of border security on our communities.

The president’s new immigration plan is an opportunity to ameliorate CBP’s dismal six-year track record under his watch. He can bring CBP in line with best police practices using the agency’s fresh leadership. He can stop the daily harassment of U.S. citizens and lawful residents at interior CBP checkpoints, end racial profiling and brutal treatment meted out by CBP roving patrols far from any border, and eradicate abusive, demeaning behavior by some port-of-entry officers.

Border communities have long promoted an affirmative agenda to reform CBP through transparency and oversight reforms including body-worn cameras, reduction of the 100-mile zone, and improved complaint and custody policies. The president should not succumb to uninformed pressure about the border, but act with a vision to revitalize the militarized zone of heavy-handed law enforcement our communities have become. His pledge to bring humane enforcement to DHS operations won’t be realized if he increases border-security resources at the height of CBP’s problems. 

As border residents, we’re tired of being forsaken.

See ACLU’s webpage, Border Communities Under Siege at

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Movement for Racial Justice Runs Wide and Deep

November 21st, 2014 No Comments   Posted in ACLU Nationwide
By Nusrat Choudhury, Staff Attorney, ACLU Racial Justice Program

“Everyone is aware of race. Dealing with racism is another matter,” said a keynote speaker at Facing Race 2014: A Multi-Racial, Intergenerational Gathering for Racial Justice Advocates.  I joined almost 1,600 people from across the United States and several countries in Dallas last weekend for the conference, which marked the 50th anniversary of the passage of the Civil Rights Act of 1964.

The sheer power of the gathering lay in the diversity of its participants, who ranged from veterans of the Civil Rights Movement of the 1960s to DREAMers in high school and young people from Ferguson, as well as people of every race, gender, sexual orientation, and ethnicity working in some way to promote racial justice.

Facing Race 2014 addressed both successes – such as the emergence of a strong, multi-racial coalition to challenge biased policing in New York and the recent win in Minnesota to ban the criminal history box on employment applications – as well as challenges – including the enduring myth that America has entered a “post-racial” era and ongoing obstacles to comprehensive immigration reform.

Advocates debated strategy on issues as wide-ranging as mass incarceration, immigration reform, racial profiling, voting rights, economic development, housing, and labor rights. A running theme throughout was how addressing the role of race within organizations and coalitions had led to effective collaboration between different racial communities and across issues, effectively countering efforts to divide progressive movements along the lines of race, citizenship, or sexual orientation. Advocates from Mississippi, Texas, and North Carolina explained how even in the face of daunting political challenges, they have secured advances for poor people, undocumented construction workers, and low-income LGBTQ communities of color. 

Facing Race 2014 powerfully underscored that advocates working on seemingly distinct issues are in fact part of a broader movement to transform our country to be more just and equitable, one with roots in the struggle to uproot slavery and legalized racial segregation and a vision of equality that embraces the ever-increasing diversity of our society.

This point was brought home when Dr. Bernice Johnson Reagon, a member of the Student Non-Violent Coordinating Committee Freedom Singers and founder and leader of Sweet Honey in the Rock, took the stage with her daughter, Toshi Reagon, a composer, producer and ensemble leader.  Together, they led attendees in song:

We who believe in
freedom cannot rest.

We who believe in
freedom cannot rest until it comes.

Until the killing of Black men,
Black mothers’ sons,
Is an important as the killing of White men,
White mothers’ sons.

. . .

Struggling myself don’t mean a whole lot.
I come to realize,
That teaching others to stand up and fight
Is the only way my struggle survive.

Written in 1988, these lyrics continue to resonate.  Sung by racial justice advocates today, as our country awaits a grand jury’s decision whether to indict the police officer who shot and killed Michael Brown, these lyrics are profound. They remind us that, in the past, communities of color and racial justice advocates of all stripes showed tremendous strength in the face of seemingly insurmountable barriers to equality.

This is a lesson we must keep close to us today. So too are the lessons on resisting divide-and-conquer tactics, strengthening multi-racial coalitions, working across issues, and continuing to fight – and win – battles for racial justice, despite setbacks and no matter what the odds.

Van Jones, CNN host and president of Rebuild the Dream, said at the conference’s close: “There are many futures out there. You get the one you fight for.” Facing Race 2014 showed that so many people and communities are deeply engaged in the fight for a future where all people live with hope, dignity, and opportunity.

We are a force to be reckoned with.  And that gives me hope.

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US Joins Somalia and South Sudan in Failing to Support Child Rights

November 20th, 2014 No Comments   Posted in ACLU Nationwide
By Arjun Sethi, ACLU

This piece originally ran at Al Jazeera America.

On Nov. 20, 1989, the United Nations General Assembly adopted a landmark human rights treaty protecting children’s rights. The Convention on the Rights of the Child (CRC) was negotiated for more than a decade, a process in which the U.S. played a critical role. The administrations of Presidents Ronald Reagan and George H.W. Bush contributed provisions to the convention, and in its final form, the treaty incorporates numerous elements of U.S. law and practices.

Upon circulation, the convention was widely adopted and became the most ratified human rights treaty in history.  Now, 25 years later, as the world celebrates Universal Children’s Day, only three countries bear the shame of not having ratified the CRC: Somalia, South Sudan and the United States. In failing to ratify, the U.S. has lost an important opportunity to shape international law and improve its human rights record here at home.

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Trans Remembrance and Resistance

November 20th, 2014 No Comments   Posted in ACLU Nationwide
By Chase Strangio, Staff Attorney, ACLU

At least 10 transgender women of color have been murdered in the United States since June.

Today, on the Transgender Day of Remembrance & Resilience we honor their lives and mourn their deaths. These women - Kandy Hall, Zoraida Reyes, Yaz’min Shancez, Tiff Edwards, Mia Henderson, Alejandra Leos, Aniya Parker, Ashley Sherman, and another yet to be identified person – had their lives taken from them because they lived in this world that too often fails to value black, brown, and gender non-conforming bodies.

Started in 1999 to honor the life of Rita Hester – a black transwoman, who was murdered in Boston, Massachusetts – the Transgender Day of Remembrance (TDOR) is a time to say the names of and reflect upon the lives of our trans brothers and sisters lost to violence. It is a time to raise awareness about the epidemic of violence and systemic rejection that the trans community faces in our country and around the world.

At the same time that we mourn these losses and lament this violence, it is important that we also honor the brave resistance of so many trans people, who organize, fight, and take care of one another in the face of so much.  Remembering trans people of color in death and as victims is not enough. We must stand besides and hold up trans communities, particularly communities of color, in life. We must continue to work to end mass incarceration and the criminalization of poverty, gender non-conformity, and blackness.

Last week, we joined colleagues at Columbia University Law School to celebrate the work of incarcerated trans woman, Dee Farmer, who filed a lawsuit to challenge the violent abuses she experienced in federal prison. The conference opened with Dee Farmer herself speaking from prison about the case she brought all the way to the Supreme Court in 1994. She told the audience of lawyers, prison administrators, organizers and other activists: “The transgender community in prison very much needs support of transgenders outside of prison.”

From a panel on sexual assault in detention, prison survivor and Just Detention International Survival Council member, Troy Isaac, echoed Dee’s sentiment: “People are being abused in detention & people don't care. As I sit here on this panel, not everyone cares.”

We care. But we can and should care more. And do more.

On Monday, black trans activist Monica Jones will head back to court in Phoenix, Arizona, for the appeal of her conviction for “manifesting intent” to solicit prostitution. In Phoenix, almost anything – from waving one’s hands to stopping and talking to passersby – can be used as evidence that a person is “manifesting” an intent to engage in prostitution.

Without clear standards of what conduct is made criminal, police often stop and target people based on bias. Assumed to be sex workers, transgender woman of color face widespread targeting under these vague and overbroad laws. Like so many trans women of color, Monica was assumed to be engaging in sex work because of where she lived and how she was dressed.

In August when Monica’s appeal was filed, we joined her and Emmy-nominated actress Laverne Cox in Phoenix to raise awareness of the profiling of trans women of color by police. We wrote “We #StandWithMonica because transgender women of color should be able to walk down the street in their neighborhoods without being arrested, or worse, for simply being themselves.” We will continue to stand with Monica on Monday and throughout her appeals, and we ask you to join us.

Follow the hashtags #translivesmatter and #standwithmonica. Watch the Deliberate Resistance: LGBT Prisoner Rights 20 Years After Farmer v. Brennan Symposium.

While we remember, we must also resist. There are so many trans people who are doing the amazing work of surviving, caretaking, organizing, and transforming.

Today is a day to support that work and those fights.

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A Lesson in Fairness for My Children

November 20th, 2014 No Comments   Posted in ACLU Nationwide
By Susan Waters

“That’s not fair!” I said to my dad as a child. He replied as I imagine thousands of parents would saying, “Life’s not fair.” I remember at that early age thinking to myself, “But you aren’t even trying to make life fair.”

Now that my wife of 16 years and I are fighting for our marriage to be recognized in Nebraska, I have been spending a lot of time thinking about those moments with my dad, and the lessons I want to impart upon my children, Ella and Jaden.

My mother died at age 36 when I was only a child. My children may soon experience a similar tragedy as Sally has been diagnosed with terminal cancer.

My heart breaks for my in-laws. Sally’s siblings may lose another sister. My heart breaks that my wife will not have the retirement we had planned. We will not travel the world. We will not see our girls married with children of their own.

The fact that Nebraska does not consider Sally my wife makes this difficult situation even more difficult. Because of the 18 percent inheritance tax I would have to pay on the house we jointly own, we have made the decision to downsize so I could afford the tax hit. Money that could be going to education for our children will go to taxes. Sally’s social security benefits may not be extended to me.

So I have been thinking about how life is not fair, and I can’t go there.

Instead, I think about having 17 wonderful years so far with this amazing woman, this wonderful friend, this partner who has seen me in my best and worst and loved me just the same.

I cannot change the fairness or lack of fairness in the battle with cancer. When we pledged before our God, our family, and our friends “Til death do us part,” we never thought we would be faced with a terminal diagnosis at such a young age. But our love and commitment to one another hasn’t changed.

I cannot protect my children from the pain of this time in our lives and some of the days to come. I can, however, stand tall and say that not recognizing my family and our love is not fair. I can say to the state of Nebraska that with the death of my wife, I should have access to all of the same laws and benefits that my sister would have with her husband.

I am legally married to my wife Sally Elizabeth Waters. I will stand up and do what I can to make life fair. I will not say “life is not fair” to my children without at least doing my part to make it fair for our family and others in our state.

Susan Waters is a plaintiff in Waters v. Heineman our freedom to marry case in Nebraska.

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A Rare Glimpse of Bipartisanship on Open Government

November 19th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office

So this “lame duck” Congress may not be so lame after all – at least when it comes to increasing government transparency.

On Thursday, the Senate Judiciary Committee is set to consider a bipartisan measure that, while modest, would be one of the most significant improvements to the Freedom of Information Act in decades. Sponsored by Vermont Democrat Patrick Leahy and Texas Republican John Cornyn, we’re hopeful the committee will send the bill to the full Senate where it has a legitimate chance at passage, even in the politically fraught aftermath of this month's election.

The legislation would take several small but important steps to improve FOIA.

First and foremost, it would enshrine in law President Obama's pledge, made on his first day in office, to change the default response when the government receives a FOIA request to disclosure. While we've been critical of the Obama administration's approach to transparency on things like NSA surveillance, we strongly applauded this "presumption of openness," which stood in marked contrast to the approach of the Bush administration.

The bill would also encourage the release of documents in electronic format and would, for instance, require agencies to release documents electronically if they've been publicly released and requested more than three times. Furthermore, it would require additional reporting by agencies on requests denied and documents released.

Finally, it would clarify in the law that agencies cannot deny requests simply because the information requested would be embarrassing or merely technically fits one of the exemptions to FOIA (that is, the information could be covered by an exemption but release wouldn't result in harm). Additionally and importantly, it would limit FOIA's Exemption Five, which covers a broad range of documents covered by things like the attorney-client privilege and is often overused by agencies. Under the bill, only documents produced in the past 25 years would be eligible for withholding.

The ACLU has long argued that the First Amendment rights of Americans require public access to government information, especially in areas like national security, where the government has an abiding incentive to withhold information about fraud, waste, embarrassment, or illegality. FOIA is the most important mechanism in service of that First Amendment value.

We applaud Senators Leahy and Cornyn for their important legislation to make it a better law.

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ACLU Seeks Information About Airborne Cell Phone Snooping

November 19th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Bennett Stein, ACLU Speech, Privacy, and Technology Project

The ACLU is filing a Freedom of Information Act (FOIA) request today for information about a newly revealed Marshals Service program that uses aircraft to suck up location data from tens of thousands of people’s cell phones at a time.

The U.S. Marshals Service program, exposed last week by the Wall Street Journal, involves Cessna planes equipped with “cell site simulators” flying from at least five airports around the country. Cell site simulators, also called IMSI catchers, impersonate a wireless service provider’s cell tower, prompting cell phones and other wireless devices to communicate with them instead of the nearest tower. In doing do so, the simulators can learn all sorts of information that facilitates accurate location tracking, including the electronic serial numbers and other information about the phone and the direction and strength of the phone’s signal.

The government apparently calls cell site simulators deployed on airplanes “DRT boxes” or “dirtboxes”, after their manufacturer, Digital Receiver Technology, Inc. (DRT). (Other cell site simulator models, produced by Harris Corporation, are the “Stingray," “Triggerfish,” “Kingfish,” and “Hailstorm”).

According to the Wall Street Journal, the dirtboxes are used in criminal investigations. The problem is that, during each flight, a dirtbox is able to collect data from tens of thousands of cell phones. And, inexplicably, that is pretty much all we know about this program. That is why we are filing a FOIA request on this technology.

The Marshals Service program has drawn widespread expressions of concern, for example prompting two U.S. Senators to demand information from the Attorney General about the extent of airborne cellphone interception and its effects on innocent bystanders. But the Marshals Service is not the only agency in the federal government deploying this technology on aircraft. For example, U.S. Immigration and Customs Enforcement puchased an "Airborne Flight Kit” for a Stingray II cell site simulator as early as 2010. And we know at least a dozen federal agencies use cell site simulators, as well as dozens of state and local police departments across the country (many of them are mapped here).

Despite the public interest and significant constitutional questions raised by IMSI catchers, law enforcement agencies continue to pretend the technology is a secret. The Department of Justice would neither confirm nor deny that the U.S. Marshal Service dirtbox program exists. The FBI is trying to keep local and state law enforcement agencies from disclosing their use of Stingrays by forcing the agencies to sign nondisclosure agreements.

This is unacceptable — law enforcement must not purchase and deploy such powerful new technologies without the public’s knowledge and input. Americans can only debate the merits and legality of new surveillance programs if we know they exist. Resistance against the government’s secret, overzealous use of cell site simulators is spreading, and will surely grow as we learn more about these programs. The press has responded with major front page stories. Judges are pushing back in the courtroom. State and federal legislators are asking questions and considering regulation. It is time for the government to stop trying to suppress this debate, and recognize the public’s right to information.

Ohio Wants to Cloak the Death Penalty in Secrecy

November 18th, 2014 No Comments   Posted in ACLU Nationwide
By Mike Brickner, ACLU of Ohio

It would be an understatement to say Ohio has had many problems administering capital punishment.

Over the last decade, the state granted clemency to 10 people and botched four executions, including the tortuous death of Dennis McGuire, who was killed with experimental drugs. With mismanaged executions and growing controversy around lethal injections in Arizona, Oklahoma, and elsewhere, a federal judge in Ohio rightfully paused executions until the state could adopt new protocols.

Given all of these difficulties, you’d think leading state legislators would move forcefully to reform or abolish the death penalty in the state. Not so. Their solution is extreme: Close the curtain and keep the public out.

With almost no public discussion, proposed legislation that shrouds the capital punishment process in secrecy is being pushed through the legislature. The bill does two very alarming things. It would shield manufacturers and medical professionals who assist in executions from being the subject of public records inquiries, and it provides immunity to those individuals from ethical or professional reprimands.

This level of secrecy will be detrimental to Ohio’s very democracy.

The government represents the people and should be accountable to us. We have laws that require government officials to provide public records and have open meetings in order to prevent corruption, abuse, and incompetence. Taking a person’s life is the ultimate punishment that the public can levy, which means we have to take even greater pains to ensure the government does it humanely and legally.

Instead, Ohio’s leaders want to introduce more secrecy and less accountability into an already cruel and flawed system.

Allowing anonymity for drug manufacturers is particularly problematic, especially if compounding pharmacies are involved. These types of pharmacies make small batches of drugs, with each one being unique. Ohio would like to use compounding pharmacies, which are totally unregulated by the Food and Drug Administration for safety and efficacy, to supply the lethal dose during its executions. If this bill goes through, pharmacies will be off the hook and left unaccountable if their concoctions result in botched executions.

Unfortunately, secrecy is the typical reaction of the government in any number of circumstances—when problems crop up, the government opts to hide the truth from the people.

Ohio has had its share of problems with lethal injections. Secrecy will only guarantee that those problems will continue, and possibly spread. Ohio is consistently a bellwether state for contentious legislation, such as abortion and voting laws, which can set trends nationwide.

Whether you are a supporter or opponent of the death penalty, we all must agree that the government should play by the rules and must be accountable to the people. We don’t need more botched or wrongful executions and a hastily passed secrecy bill is a recipe for disaster.

It’s either kill this bill or let Ohio kill in secret, with other states to follow.

Please take a moment to ask the committee chairman to hold this legislation and not move it forward this year.

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For Some Convicted of Drug Offenses, the Punishment Never Ends

November 17th, 2014 No Comments   Posted in ACLU Nationwide
By Julie Ebenstein, Staff Attorney, Voting Rights Project, ACLU

Mass incarceration not only destroys families and mangles communities, it slowly erodes our democracy. Too many Americans convicted of nonviolent offenses, such as drug crimes, are punished with excessive prison sentences and then permanently ejected from our democracy through the “civil death” of losing their right to vote.

Criminal disenfranchisement removes massive swaths of society from the democratic process as a collateral consequence of conviction. A striking 5.85 million Americans can’t vote because of a criminal conviction. If all of these citizens populated their own state, it would be the 20th largest state in the country and would have ten votes in the Electoral College.

The distortion of democracy operates through a patchwork of state disenfranchisement laws, varying in severity from state to state. Many disenfranchised citizens live in Iowa, Kentucky, or Florida – the three states with extreme policies of disenfranchising anyone with a felony conviction for life.

These states are among those that also disproportionately suppress the voting rights of African Americans.  In both Florida and Kentucky, approximately one in five African-American citizens is disenfranchised due to a prior conviction. In Iowa, the long-standing system of disenfranchisement, paired with the worst disproportionate incarceration of African-Americans in the nation, resulted in the disenfranchisement of an estimated 1 in 4 voting age African-American men by 2005.

The ACLU and the ACLU of Iowa filed a lawsuit challenging Iowa’s extreme policy of disenfranchising for life everyone with a felony conviction. The Iowa Constitution specifically provides that citizens can be disenfranchised only for an “infamous crime.” The meaning of the word “infamous” in the mid-19th century meant “most vile; base; detestable.”  It captured a concept dating back to ancient Greece where “criminals who had committed certain heinous crimes were pronounced infamous.”

Last year, in an Iowa Supreme Court case, a plurality—three of six— of the justices held that not all felonies are necessarily infamous crimes, but only those kinds of offenses that are serious and have some bearing on the integrity of elections.

In 2008, our client Kelli Jo Griffin pled guilty to a low-level drug crime, was sentenced to probation, and has since served her term of probation. Nonviolent crimes rooted in addiction are not “most vile,” “base,” or “detestable.” They have no bearing on a person’s integrity, much less the integrity of elections. Once Kelli Jo and those like her have completed their sentences, we integrate them back into our society as neighbors, co-workers, and family members. There is no rational or constitutional basis for fencing them out from civic participation for the rest of their lives.

Once a citizen is disenfranchised, Iowa’s discretionary executive clemency policy is the only available route to restoration. But the clemency process is susceptible to the ebb and flow of politics, with some state governors restoring voting rights automatically, and others creating convoluted processes that prevent nearly all restoration.

In 2005, Gov. Tom Vilsack restored the right to vote to citizens who had already completed their sentence, resulting in an estimated 100,000 Iowans regaining their right to vote. He also set forth a process whereby citizens would have their rights restored automatically upon completion of their sentence. Automatic restoration remained in place at the time Kelli pled guilty to a non-violent drug crime.

But in 2011, before she finished her term of probation, Gov. Terry Branstad changed the system so that her rights were not automatically restored; a change Kelli was unaware of once she completed her probation.

Iowa’s extreme policy of punishing Kelli Jo with “civil death” after she completed her probation and turned her life around is dead wrong.  It violates the Iowa Constitution and disfigures our democracy.

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FEC’s Coordination Definition Is a Big Hot Mess

November 17th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Michael Macleod-Ball, Chief of Staff, ACLU Washington Legislative Office

Members of Congress and donors in cahoots to deceive not only the American voting public but the Federal Elections Commission (FEC) as well? 

Shocking, I know.

According to a CNN report, a number of congressional campaigns may have used anonymous Twitter accounts to coordinate with outside big money advocacy groups to evade campaign contribution limits. If so, it highlights once again the need for the FEC to tighten up coordination rules, which we have argued do not accurately reflect the clear meaning of the statute on which they are based.

Polling results in specific congressional races, reports CNN, were posted to anonymous Twitter accounts. The posts appeared as gibberish to the untrained eye – for example, “FL-44/42-44/44-35/35-42/41-49/47-10/22/14-26” – but to a campaign specialist, they would have appeared as a guidepost providing direction to those looking to help or oppose particular candidates. Suspiciously, someone removed the Twitter accounts within minutes of CNN asking the National Republican Congressional Committee to comment.

Here are a couple of basic rules of election law:

  • Campaign donors can only give a certain amount to candidates running for office - $2600 for individuals and $5000 for multi-candidate political action committees (PAC).
  • Independent speakers and PACs can spend an unlimited amount in support of candidates – but only if they do not “coordinate” with candidates or campaigns.
  • If an independent group coordinates with a campaign, then any money spent in support of that campaign – say, a series of TV ads – counts as a contribution to that campaign.

By law, the FEC will treat the cost of any TV ad campaign resulting from coordination with a campaign as a contribution. Moreover, any impactful TV ad campaign will undoubtedly cost more than $5000 – check any TV rate schedule.  Therefore, any coordinated ad campaign will almost certainly violate the contribution limits that have long been the foundation of the nation’s political finance system.

Federal election law is pretty complicated – but on this last point, it’s pretty simple.  The law says that if any “disbursement is coordinated with a candidate or [campaign] such disbursement . . . shall be treated as a contribution to the candidate. . . .”  The problem rests with the FEC, which has taken the simple term “coordinated” and turned it into a little definitional puzzle, the meaning of which bears no resemblance to the meaning any thinking person would assign to that term. 

The FEC says that three tests must be met to establish "coordination:" a payment test, a content test, and a conduct test.  Two of those tests have multiple parts, and if any one of the tests isn’t met, FEC deems there to be no coordination.  So smart campaign consultants simply organize their activities so that they avoid meeting one of the tests. One of the FEC workarounds gives a free pass to information communicated between a campaign and an “independent” group if it’s publicly available. The thinking is that coordination would normally require the passing of some confidential information or strategy which, if publicly known, would lose its political value.

So here we have online tweets with political polling information – how much more public can you get – and yet how much more confidential could the information be?  It appears that all parties did everything in their power to keep the polling information in a quasi-encrypted format, so as to avoid sharing the political value of the data with their opponents. Moreover, it looks like the parties were not comfortable conveying the information directly, which would have pretty clearly put them into the land of “coordination.”

Let’s see how this all plays out before casting too many stones, and to its credit, the FEC says it’s going to take a look at the issue. But the bottom line is that this looks, talks, and acts like a coordinated duck. Any legal argument to the contrary just means that the FEC’s definition of coordination has made a shambles of the simple term used in the statute. Sending seemingly encoded confidential polling information between campaign and independent speaker via an anonymous Twitter account is the kind of coordination that ought to make subsequent campaign communications count as contributions. 

And I’m shocked – just as shocked as Capt. Renault – that the FEC’s convoluted rule might allow this to stand.

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