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Two nonprofit groups challenge Rhode Island donor disclosure law

On Nov. 21, 2019, two nonprofit groups – the Gaspee Project and the Illinois Opportunity Project – filed suit in U.S. District Court, alleging that a Rhode Island law requiring issue advocacy groups to disclose personal information about their donors to the public violates donors’ free-speech and privacy rights.

Who are the parties to the suit? The plaintiffs are two nonprofit groups: the Gaspee Project and the Illinois Opportunity Project, both 501(c)(4) organizations subject to the challenged law. They are represented by the Liberty Justice Center. The defendants are Diane Mederos, Stephen Erickson, Jennifer Johnson, Richard Pierce, Isadore Ramos, David Sholes, and William West, all members of the Rhode Island Board of Elections.

What is at issue? The law in question (H7859, enacted in 2012) requires issue advocacy groups to disclose to the public personal information about their donors who contribute more than $1,000. Groups must report the donor’s name, job title, employer, home address, and donation amount. This information is then posted to a government website. The law also requires that, in the weeks leading up to an election, groups publish the names of their top five contributors on any advertising or messages.

What are the arguments? Daniel R. Suhr, an attorney for the Liberty Justice Center, said, “This case is about freedom of speech and association. We think the marketplace of ideas operates best when we have the most robust conversation and people can controversial things without fear of retaliation. From the beginning of our nation, our country has had a proud tradition of anonymous speech in the public square. And that stems from a commitment to focusing on ideas, rather than who is paying for the message.”

Austin Graham, legal counsel for the Campaign Legal Center, which supports the Rhode Island law, said, “It’s about providing voters with more information to fully evaluate political advertising and messaging, which in turn allows them to fully participate in the democratic process. It’s the marketplace of ideas. Informed decisions in the political marketplace, like the economic marketplace, depend on the free flow of information about sources of political messages supporting or opposing candidates.”

Have other courts ruled on the constitutionality of similar laws? On Sept. 30, Judge Denise Cote, of the U.S. District Court for the Southern District of New York, 2016 law requiring 501(c)(3) and 501(c)(4) groups to disclose personal information about their donors in select circumstances. Under the New York law, 501(c)(3) groups were required to disclose the identities of donors who contributed more than $2,500 in a calendar year if the 501(c)(3) group made in-kind contributions to a 501(c)(4) group that engaged in lobbying activity. 501(c)(4) groups were required to disclose the identities of donors who contributed more than $1,000 if the 501(c)(4) group spent $10,000 or more per calendar year on covered communications (i.e., communications that advocate for or against an identified elected official).

On Oct. 2., Judge Brian R. Martinotti, of the U.S. District Court for the District of New Jersey, enjoined the state from enforcing its donor disclosure law, adopted on June 17, while litigation is underway. Under the New Jersey law, 501(c)(4) and 527 entities that spend $3,000 or more annually to influence or provide political information about the outcome of any election or policy proposal must disclose the identities of their donors who contribute $10,000 or more.

Case information: The case name and number are Gaspee Project et al. v Mederos et al., 1:19-cv-00609. The suit was filed in the U.S. District Court for the District of Rhode Island. The presiding judge is Mary McElroy, who was appointed to the court by Donald Trump (R).

What we’re reading

The big picture

Number of relevant bills by state: We’re currently tracking 74 pieces of legislation dealing with donor disclosure. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Disclosure Digest map December 23, 2019.png

Number of relevant bills by current legislative status

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Number of relevant bills by partisan status of sponsor(s)

Disclosure Digest partisan chart December 23, 2019.png

Recent legislative actions

No legislative actions have occurred since our last issue.

Signatures filed for indirect initiative to ban abortion procedure in Michigan


On December 23, 2019, the campaign Michigan Values Life filed 379,418 signatures for a ballot initiative to ban an abortion procedure. The ballot initiative defines the procedure as dismemberment abortion, which is also known as dilation and evacuation abortion.

The ballot initiative would define dismemberment abortion as an abortion which uses an instrument, device, or object to “dismember a living fetus by disarticulating limbs or decapitating the head from the fetal torso or removing the dismembered fetal body parts from the uterus regardless of whether the fetal body parts are removed by the same instrument, device, or object or by suction or other means.”

At least 340,047 (89.6 percent) of the submitted signatures need to be valid. As an indirect initiative, the proposal would first go to the Michigan State Legislature if enough signatures are verified. The legislature would have 40 days to pass the initiative. The governor’s signature is not needed on an indirect initiative passed by the legislature. Currently, Republicans control both legislative houses, while a Democrat, Gretchen Whitmer, is the governor. House Speaker Lee Chatfield (R-107) said that he expected the legislature to pass the ballot initiative.

If enough signatures are verified and the indirect initiative is not passed by the legislature, the initiative would appear on the ballot for November 3, 2020. Speaking about the scenario of the initiative going to the ballot, Gov. Gretchen Whitmer (D) said, “I will actively campaign against adoption.”

According to Bridge Magazine, dilation and evacuation (D&E) abortions are the most common type of second-trimester abortion. Mississippi and West Virginia have active bans on D&E abortions. Courts have struck down bans in several other states.

As of December 2019, one abortion-related ballot measure has qualified for the 2020 ballot. In Louisiana, voters will decide a constitutional amendment stating that “nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” Signatures are also being collected for a 22-week abortion ban ballot initiative in Colorado. In Michigan, a campaign for a second ballot initiative that would restrict abortions when a fetal heartbeat is present is also collecting signatures. The latest that signatures can be filed for an indirect initiative in Michigan is May 27, 2020.

Click here to learn more.

Related pages:
Michigan 2020 ballot measures
Michigan Fetal Heartbeat Abortion Ban Initiative (2020)
Abortion regulations by state

Department of Labor proposes rule requiring mid-level public-sector unions to disclose finances

On Dec. 17, the U.S. Department of Labor proposed a regulation that would require mid-level public-sector unions (i.e., state, regional, or district affiliates of national-level unions) to disclose their finances to the federal government if their parent organizations represent private-sector workers.

What are the current regulations? Since 2010, mid-level unions representing public-sector employees exclusively have not been subject to federal financial reporting requirements, even if their parent unions do represent some private-sector workers. The Labor-Management Reporting and Disclosure Act requires all unions representing private-sector workers to file regular financial disclosure reports with the U.S. Department of Labor.

What is the proposed regulation? The proposed regulation would restore a 2003 rule that required intermediate public-sector union affiliates to disclose their finances if their parent unions represented some private-sector workers. The 2003 rule was enacted by the Bush administration and later rescinded by the Obama administration. According to the U.S. Department of Labor, the proposal would result in expanded disclosure filings by mid-level affiliates of the National Education Association, the American Federation of Teachers, the Fraternal Order of Police, and the International Association of Firefighters. Membership and financial figures for these unions are as follows:

What are the reactions?

  • In July 2018, the Department of Labor indicated it was considering the rule change. At that time, NEA general counsel Alice O’Brien said, “Given the strength of the pedigree of the current rule, any attempt by DOL to proceed with the proposed rule would be another attack on unions by this administration.”
  • Also in July 2018, Glenn Spencer, vice president of employment policy at the U.S. Chamber of Commerce, said, “The [Labor-Management Reporting and Disclosure Act] is meant to be construed broadly and it’s meant to extend coverage as widely as possible.”

What comes next? The proposed rule was published in the Federal Register on Dec. 17. The Department of Labor will accept public comments on the proposal until Feb. 18, 2020.

What we’ve been reading

The big picture

Number of relevant bills by state

We are currently tracking 107 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Union Station map December 20, 2019.png

Number of relevant bills by current legislative status

Union Station status chart December 20, 2019.png

Number of relevant bills by partisan status of sponsor(s)

Union Station partisan chart December 20, 2019.png

Recent legislative actions

No legislative actions have occurred since our last issue.

Two states expanded felon voting rights in December

Kentucky and New Jersey both expanded voting rights for convicted felons this past month.

Kentucky Gov. Andy Beshear (D) issued an executive order on December 12 which allows individuals convicted of certain felonies to regain the right to vote upon completion of sentence, including prison time, probation, and parole. Rights are restored at that time regardless of whether the person has paid all fines or restitution. However, individuals who are convicted of treason, election bribery, and certain violent felonies do not regain voting rights. Previously, individuals convicted of any felony, as well as some misdemeanors, were permanently disenfranchised unless their voting rights were restored by reversible pardons offered by the state’s governor.

On December 18, New Jersey Gov. Phil Murphy (D) signed legislation restoring voting rights to the state’s convicted felons once they complete their prison sentences. The law is scheduled to take effect on March 17, 2020. State law previously barred felons from voting until completion of their full sentences, including prison time, probation, and parole.

Voting rights for convicted felons vary substantially from state to state. Two states, Maine and Vermont, allow felons to vote while incarcerated, and one state, Iowa, permanently disenfranchises felons. In the other 47 states, felons cannot vote while incarcerated but regain the right to vote at some point after their release, although eight of those states permanently disenfranchise felons who commit certain categories of crimes. Seventeen states automatically restore voting rights after release from incarceration, and the rest restore voting rights at a different point, such as completion of probation or parole.

Click here to learn more.

Additional reading:
Election governance in New Jersey – Convicted felon voting rules
Election governance in Kentucky – Convicted felon voting rules

DNC raises polling and fundraising thresholds for January debate

The Democratic National Committee released the criteria to qualify for the January 14, 2020, presidential primary debate, raising both the polling and fundraising thresholds.

Each candidate has to receive 5% support or more in at least four national or early state polls or 7% support or more in at least two single state polls to meet the debate’s polling threshold. The four early states are Iowa (Feb. 3), New Hampshire (Feb. 11), Nevada (Feb. 22), and South Carolina (Feb. 29).

Candidates also have to meet a fundraising threshold of 225,000 unique donors and a minimum of 1,000 donors in at least 20 states.

Candidates have until Jan. 10 to qualify. Former Vice President Joe Biden, Mayor Pete Buttigieg, and Sens. Amy Klobuchar, Bernie Sanders, and Elizabeth Warren have already met both requirements.

While former New York City Mayor Michael Bloomberg has reached the polling requirement, he is not accepting contributions to his campaign and is unlikely to cross the fundraising threshold.

Neither Tom Steyer nor Andrew Yang, both of whom participated in the December debate, have qualified yet. Steyer needs to cross the donor threshold and reach the polling threshold in two more polls. Yang has met the donor threshold but needs three more polls.

The debate will take place at Drake University in Des Moines, Iowa, roughly three weeks before the state caucuses.

Click here to learn more.


Since 1776, 217 state governors have resigned their office

Since 1776, 217 state governors have resigned before completing their terms. Before serving as president, Andrew Johnson (D) resigned twice as governor of Tennessee (once in 1857 and once in 1865), so there have been 218 gubernatorial resignations.

Of the 218 resignations, more than three-quarters (166) happened because the governor was elected or appointed to another office. Thirty-seven took place for various personal reasons, such as illness or policy disputes with the state legislature. The remaining 15 resignations occurred following allegations of misconduct on the governor’s part.

Twelve governors of New Jersey have resigned, more than any other state. Governors of Maine and South Carolina follow with 10 resignations each, and then Virginia with nine. Florida, Hawaii, and Washington are the only states which have never had a governor resign.

The most recent gubernatorial resignation took place in Missouri on June 1, 2018, when Eric Greitens (R) resigned amid allegations of sexual misconduct and misuse of campaign information.

Click here to learn more about gubernatorial resignations in your state.

Additional reading:
How gubernatorial vacancies are filled
State executive offices

Federal Register weekly update; 2019 page total surpasses 70,000 pages

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.

During the week of December 16 to December 20, the Federal Register increased by 2,068 pages, bringing the year-to-date total to 70,392 pages. The week’s Federal Register featured a total of 578 documents, including 447 notices, four presidential documents, 64 proposed rules, and 63 final rules.

Two proposed rules were deemed significant under E.O. 12866—meaning that they could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.

During the same week in 2018, the number of pages in the Federal Register increased by 1,644 pages for a year-to-date total of 66,076 pages. As of December 20, the 2019 total led the 2018 total by 4,316 pages.

The Trump administration has added an average of 1,380 pages to the Federal Register each week in 2019 as of December 20. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During the Obama administration, the Federal Register increased by an average of 1,658 pages per week.

According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2018 and 2017.

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016.

South Dakota to vote on medical marijuana in 2020

On December 19, the South Dakota Secretary of State’s office announced that New Approach South Dakota’s initiative to establish a medical marijuana program had qualified for the ballot. The group reported submitting more than 30,000 signatures in November, of which 25,524 were deemed valid. To qualify, 16,961 signatures were required.

The measure would establish a medical marijuana program in South Dakota for individuals who have a debilitating medical condition and are certified by a physician. Under the measure, a debilitating medical condition means, “A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.” The measure provides that the Department of Health could add additional qualifying conditions.

Medical marijuana patients would be able to possess three ounces of marijuana as well as additional amounts of other types of marijuana products. Patients would be able to possess three marijuana plants and products made from the plants.

The attorney general’s explanation stated, “The 95-section measure contains numerous other provisions not described here. It will likely require judicial or legislative clarification.”

South Dakotans for Better Marijuana Laws, a group sponsoring a separate measure to legalize recreational marijuana, reported submitting more than 50,000 signatures on November 4, 2019, and are awaiting validation from the Secretary of State. That measure was designed to legalize the recreational use of marijuana. It would also require the legislature to pass laws providing for the use of medical marijuana and the sale of hemp by April 1, 2022. In South Dakota, if there are two conflicting ballot measures on the same ballot, and both are approved, the one that receives the most yes votes supersedes the other in areas of conflict.

As of 2019, 33 states and Washington, D.C., had passed laws legalizing or decriminalizing medical marijuana. Additionally, 13 states had legalized the use of cannabis oil, or cannabidiol (CBD)—one of the non-psychoactive ingredients found in marijuana—for medical purposes. As of 2019, 11 states and Washington, D.C., had legalized the possession and personal use of marijuana for recreational purposes.

Also set to appear on the 2020 ballot is a marijuana legalization amendment in New Jersey that would legalize the possession and use of marijuana for persons age 21 and older and legalize the cultivation, processing, and sale of retail marijuana. The New Jersey constitutional amendment is the first marijuana legalization measure that a state legislature has referred to voters. In Illinois and Vermont, the state legislatures passed bills to legalize marijuana without ballot measures. The other nine states (and D.C.) that have legalized marijuana did so through the ballot initiative process, in which proponents collected signatures to place their issues before voters. There is no initiative process in New Jersey.

Measures concerning medical marijuana targeting the 2020 ballot have been proposed in Florida, Idaho, Mississippi, and Nebraska. Measures to legalize marijuana for recreational use have been proposed targeting the 2020 ballot in Arizona, Arkansas, Florida, Missouri, Nebraska, North Dakota, and Oklahoma.

From 1996 through 2018, a total of 74 measures have appeared on the ballot during even-numbered election years in South Dakota, of which, 39% were approved and 61% were defeated.

Click here to learn more.

Wisconsin’s April 7th Marsy’s Law ballot measure challenged in court

On December 18, 2019, the Wisconsin Justice Initiative, a nonprofit organization, filed litigation in the Dane County Circuit Court that challenges the Marsy’s Law Amendment, which is on the ballot for April 7, 2020. Marsy’s Law was designed as a type of constitutional bill of rights for crime victims.

As of 2019, 13 states had passed ballot measures for Marsy’s Law. Courts have struck down Marsy’s Law in Montana and Kentucky. In Montana, the constitutional amendment was struck down as violating the state’s single-subject and separate-vote requirements. In Kentucky, a judge ruled that the ballot question didn’t fully and fairly inform the electorate. In Pennsylvania, where a majority of electors voted for Marsy’s Law on November 5, 2019, an ongoing lawsuit contends that the constitutional amendment violated the state’s single-subject requirement.

Henry Nicholas, the co-founder of Broadcom Corp., established Marsy’s Law for All in 2009 to advocate for constitutional amendments. In Wisconsin, the state legislature passed Marsy’s Law in 2017 and 2019 to place the amendment on the ballot. In 2019, most legislative Republicans (77 of 82) supported the resolution placing Marsy’s Law on the ballot. Two-thirds of legislative Democrats (32 of 50) supported the resolution.

Plaintiffs in the lawsuit stated that the ballot question did not accurately and completely describe the constitutional amendment. Craig Johnson, board president of the Wisconsin Justice Initiative, said, “Voters are being asked to vote on a single sentence that doesn’t remotely begin to describe what Marsy’s Law is and what it does. It may sound reasonable, but the question masks a proposed amendment twice the length of the U.S. Bill of Rights.” The Wisconsin Justice Initiative asked the court to strike Marsy’s Law from the ballot or require the ballot question to be rewritten.

The ballot question is: “Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?”

Teri Jendusa-Nicolai, chairperson of Marsy’s Law for Wisconsin, responded to the lawsuit, saying, “This to me is a last-ditch effort to take away the rights of crime victims.” Jendusa-Nicolai added, “I do believe in the intelligence of the voters of Wisconsin, that they do understand what they are getting into and what they are voting for. … This has passed (the) Legislature twice. It has gone through many rigorous hearings, many rewordings and revisions, something that’s been worked on for quite some time.”

The case could eventually be appealed to the Wisconsin Supreme Court, which would have final jurisdiction.

Click here to learn more.

Additional reading:
Marsy’s Law crime victim rights
Marsy’s Law for All
Wisconsin 2020 ballot measures
2020 ballot measures 

D.C. Circuit rejects APA challenge to e-cigarette regulation

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on December 10 unanimously rejected an Administrative Procedure Act (APA) challenge to the Food and Drug Administration’s (FDA) process for approving new e-cigarette products. An e-cigarette manufacturer joined with an e-cigarette advocacy group to sue the FDA, arguing that the agency violated the APA by not providing an easier pathway for new e-cigarette products to be approved for marketing and sale.

The court ruled that requiring companies to show that selling an e-cigarette product was consistent with public health did not fail the APA’s arbitrary-or-capricious test, which instructs courts reviewing agency actions to invalidate those they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The judges argued in the opinion that the plaintiffs’ “wholesale objection is to Congress’ design, not to any arbitrariness on the FDA’s part in carrying it out.”

Judge Cornelia T.L. Pillard, and Obama appointee, wrote the opinion for the D.C. Circuit panel. The other judges on the panel were Judith Rogers, a Clinton appointee, and David Sentelle, a Reagan appointee.

Click here to learn more about the Administrative Procedure Act.
Click here to learn more about the D.C. Circuit.

Additional reading:

Click here to read the full opinion.