The Federalist Society

ABA House of Delegates Considers Policies on Religious Profiling, SLAPPs, and Campaign Finance

ABA Watch August 2012

August 3, 2012

ABA House of Delegates Considers Policies on Religious Profiling, SLAPPs, and Campaign FinanceReligious Profiling

The Section of Individual Rights and Responsibilities Criminal Justice Section has proposed Recommendation 116 to amend its most recent policy passed in 2008 regarding racial and ethnic profiling. The sponsors request that federal, state, local, and territorial governments enact legislation, policies, and procedures to eliminate the use of perceived or known religious affiliation when suggesting an individual is engaged in criminal activity in the absence of specific and articulable facts.

The recommendation also suggests that such legislation should require “(1) that law enforcement agencies have written policies, training, and supervision necessary to effectively implement the ban and funding necessary for these purposes; (2) data collection, on all police stops and searches, whether of drivers and their vehicles or pedestrians; (3) where feasible, independent analysis of data collected, and publication of both the data and analysis; and (4) funding for police agencies to be made contingent on compliance with these requirements.”

According to the ABA Criminal Justice Section, such anti-profiling laws have been shown to be a necessary response to an ineffective method of identifying possible criminals that ultimately contributed to the deterioration of relationships between law enforcement and citizens within communities. The recommendation originally included only race and ethnicities as protected characteristics, and was written in response to a growing belief that African Americans and Latinos have been targeted by police for stops and searches. In the 1990s, this belief was put forward with data suggesting that minorities were disproportionately stopped. In June 2003, the Department of Justice issued a Policy Guidance regarding profiling that states: “Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to society.” With that Policy Guidance, federal agencies were directed not to use race or ethnicity in making decisions about whom to target for routine law-enforcement activities. In 2004, the ABA adopted a policy recommending that state and federal governments should establish criminal-justice task forces on race and ethnicity to “conduct studies to determine the extent of racial and ethnic disparities in the criminal justice system.” In 2008, the ABA “updated and expanded” its previous resolutions with new recommendations for federal, state, local, and tribal governments urging the enactment of legislation and policies to ban racial and ethnic profiling. And in 2009, the ABA announced its support of the End Racial Profiling Act of 2009.

The proponents of this recommendation assert that since the 2001 terrorist attacks, religious profiling has become increasingly common and has contributed to the spread of distrust and fear among minority religious groups. They claim that several local and federal law-enforcement agencies, including the FBI and U.S. Immigration and Customs Enforcement, continue to target Muslims for special scrutiny and practice religious profiling against members of the Islamic community. The sponsors contend that religious profiling is ineffective and detrimental to the efficiency of law enforcement in protecting members of the groups that are profiled. Moreover, they claim that religious profiling encourages the members of the targeted group to distrust police agencies and develop feelings of resentment, which results in these groups being uncooperative in helping with counterterrorism efforts. They argue that the cooperation of Muslim and Arab-American communities is essential in fighting terrorism because tips about potential terrorist attacks often come from people who live within the communities of would-be terrorists, since they are most familiar with their neighbors’ actions and lifestyles. In addition to these arguments, the sponsors suggest that religious profiling violates the constitutional principles of equal protection and free exercise by discouraging the “open and uninhibited practice of religion.” Ultimately, the sponsors advocate amending their previous policy on racial and ethnic profiling because they believe that religious profiling is just as harmful to individuals, their communities, and the effectiveness of law enforcement in catching criminals and preventing potential terrorist plots.

Strategic Lawsuits Against Public Participation (SLAPPs)

The Forum on Communications Law will submit Recommendation 115, which encourages “federal, state and territorial legislatures to enact legislation to protect individuals and organizations who choose to speak on maters of public concern from meritless litigation designed to suppress such speech, commonly known as SLAPPs (Strategic Lawsuits Against Public Participation).” The sponsors maintain that SLAPPs undermine our right to free speech, and therefore anti-SLAPP legislation would be used to discourage and quickly dismiss lawsuits intended to harass the speaker and divert attention from the civic issue at hand. The basic goals of state-level anti-SLAPPs are: “(1) to provide as a matter of substantive law a statutory immunity for statements (and expressive conduct) on matters of public concern, where the plaintiff is unable to establish a prima facie case supporting his or her cause of action; (2) to furnish a suggested procedural framework that encourages and facilitates prompt and inexpensive resolution of such SLAPP claims; (3) to provide a right of immediate appeal of a trial court ruling on an anti-SLAPP motion; and (4) to require appropriate reimbursement for the targets of SLAPP lawsuits.” The sponsors point out that anti-SLAPP laws also “provide a mechanism for meritorious claims to survive this stage of the litigation.”

Anti-SLAPP efforts have been embraced by both political parties at the federal level. The current federal bill contains many provisions of the state statutes, including “a mandatory award of attorney’s fees to the prevailing defendant, a stay of discovery, and the right to an immediate interlocutory appeal.” Anti-SLAPP laws are becoming increasingly popular within state legislatures. Over a dozen states have already passed anti-SLAPP statutes with varying degrees of added protections. However, the sponsors of this recommendation are urging Congress to pass a comprehensive federal anti-SLAPP law.

Outside supporters of the recommendation have argued that this type of tort reform is a positive step forward. Although anti-SLAPP statutes cover only a limited scope of tort cases, they maintain that such laws provide defendants’ lawyers and courts with a way to ferret out frivolous lawsuits in the early stages of litigation, before time and resources are wasted.

Campaign Finance

The Section of Administrative Law and Regulatory Practice Standing Committee on Election Law has proposed Recommendation 109A, which urges Congress to require 501(c)(4) non-profits and 527 political organizations to disclose: “(a) those contributions used for making electioneering communications and independent expenditures as defined in federal campaign finance law and (b) amounts spent for such communications and expenditures in public disclosure reports filed with the Federal Election Commission, according to the same requirements applicable to other political committees regulated by the Commission.”

The sponsors of the recommendation argue that 501(c)(4) and 527 organizations provide a loophole to the reasoning in Citizens United. They contend that these organizations allow campaign contributions and expenditures to remain hidden from public sight by allowing donors to give money to the organizations with the intent that the money will then be redirected to an Independent Expenditure PAC, more commonly known as a super PAC, thereby hiding the true source of the funds.

The sponsors would like to address this “gap” in reporting requirements, and maintain that language in the Supreme Court decision of Citizens United supports their efforts: “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” The proponents of the recommendation argue that it is too simple to remain anonymous when making campaign contributions through the use of these 501(c)(4) and 527 organizations, thereby circumventing the Court’s reasoning in Citizens United. Therefore, the sponsors recommend defining “campaign expenditure” as “any contribution, disbursement, or . . . transfer related to making an electioneering communication or independent expenditure,” and requiring any group making campaign expenditures to disclose donor information in the same way as any other political action committee.

The sponsors also assert that reformed legislation would bring about an important change in campaign-finance law, not only because uniformity in definitions and disclosure requirements would greatly simplify the rules governing political expenditures, but also because such disclosure requirements would create greater transparency. They point out that it is this type of transparency upon which the Supreme Court relied in making its decisions in cases such as Buckley v. Valeo, McConnell v. FEC, and finally Citizens United.

Some opponents of the recommendation argue that, since the decision in Citizens United, many people have sought to burden the rights vindicated in that decision by raising the costs of political participation through excessive regulatory requirements and red tape, and by seeking unprecedented compulsory disclosure. Critics contend that the sponsors of the recommendation make several erroneous assertions. First, the critics take on the part of the recommendation that states that “disclosure is not mandated for certain entities commonly engaged in political and campaign spending, including 501(c)(4) non-profit corporations and some 527 political organizations.” Critics reject this claim, pointing out that every political ad clearly states who paid for the ad, and 501(c)(4) and 527 organizations must file reports with the FEC and/or the IRS on the donors who contributed funds to finance those ads. They further note that in a series of cases, including NAACP v. Alabama, Bates v. City of Little Rock, and NAACP v. Button, the Supreme Court held “that the exposure of general member lists and donors had a chilling effect on speech and could only be justified by significant government interests.” Finally, the critics fault the recommendation’s supporters for failing to mention parts of the Buckley decision that strike down disclosure laws.

Look for more information on these and other recommendations from the 2012 ABA Meeting at: http://www.fed-soc.org/publications/page/bar-watch-bulletin.

ABA House of Delegates Considers Policies on Religious Profiling, SLAPPs, and Campaign Finance  


The Federalist Society