On its face, Minnesota Voters Alliance v. Mansky is about which T-shirts, hats and buttons voters can wear at the polls. However, the U.S. Supreme Court’s First Amendment analysis in Minnesota Voters Alliance extends beyond apparel at polling places. That decision impacts the ongoing debate about the Johnson Amendment, the now controversial provision of the Internal Revenue Code which forbids Section 501(c)(3) organizations from intervening in political campaigns. Minnesota Voters Alliance also affects the proper construction of Section 501(c)(3)’s ban on lobbying by tax-exempt entities as well as other provisions of the tax law taxing and precluding campaign intervention by tax-exempt organizations. In contrast to current law, Minnesota Voters Alliance requires that these provisions of the tax law be construed to comply with the First Amendment mandate that restrictions on speech be reasonable, objective, workable and determinate. After Minnesota Voters Alliance, the Johnson Amendment should be interpreted as only proscribing 501(c)(3) entities from expressly endorsing or opposing particular candidates, political parties or ballot questions or from engaging in the “functional equivalent” of such express advocacy. Under this test, tax-exempt entities would not be precluded from engaging in more general issue advocacy. The other provisions of the tax law preventing tax-exempt entities from participating in political campaigns and taxing such participation should be construed in the same say. These other features of the tax law should now be understood as precluding and taxing only express advocacy of or opposition to particular candidates, parties or ballot questions, or as prohibiting and taxing the “functional equivalent” of such explicit expression. For purposes of applying Minnesota Voters Alliance to the Johnson Amendment and these other provisions of the Internal Revenue Code, the applicable test should be the standard articulated by Chief Justice Roberts in FEC v. Wisconsin Right to Life, Inc. Under this standard, the functional equivalence of express advocacy would be defined restrictively as a statement “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The Internal Revenue Code need not be amended to fashion these statutory provisions to comply with Minnesota Voters Alliance, though modifying the language of the Code is one way that the Code’s current restrictions on the political speech of tax-exempt entities could be brought into compliance with the First Amendment. Alternatively, such compliance could be achieved administratively by revoking the portions of Rev. Rul. 2007-41 pertaining to issue advocacy under the Johnson Amendment and by amending the regulations under Section 501(c)(3) to clarify that forbidden lobbying occurs only when the a tax-exempt entity explicitly supports or calls for defeat of a particular legislative proposal pending before a public lawmaking body or before the electorate. Similarly, the IRS can modify Rev. Rul. 2004-06 to bring it into compliance with the First Amendment standard of determinacy announced in Minnesota Voters Alliance. Likewise, the Treasury can by regulation clarify that, for purposes of Internal Revenue Code Sections 527 and 501(c)(4), campaign intervention means explicit endorsement of or opposition to a candidate, not more generalized discussion of issues and legislation. The Treasury would thereby interpret those Code-based restrictions on political activity in a manner which satisfies the First Amendment signposts of reasonability and determinacy articulated in Minnesota Voters Alliance.
In many criminal law systems, eyewitness identification of a suspect is sufficient to establish that they are the perpetrator of the crime in question, without any need for additional corroborating evidence. But this lofty legal status stands in contrast to the undisputed assertion in the professional literature that an erroneous eyewitness identification is far from rare, with many scholars holding it to be the most common cause of false convictions. On this background, this Article offers ways of reducing the rate of false convictions based on eyewitness misidentifications. The Article argues for the creation and application of a safety theory in the criminal justice system, specifically regarding eyewitness identifications. Therefore, after the Article connects between the modern theory of safety, which is well developed in other areas of our life, and the new theory of safety from false convictions; and after a deep discussion of one of the most serious hazards in criminal law––the hazard of false convictions based on eyewitness misidentifications––a specific safety model shall be developed, based on these discussions and on the innovative STAMP safety model. The substance of the suggested rules is based on both the psychological research and the legal literature. The high rate of false convictions is not an inevitable fate.
Critics of the proliferation of omnibus legislation in Congress have suggested that state constitutions offer a potential solution. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the early and mid-nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers. Yet, despite having long been a part of the constitutional law of most states, the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a “single subject.” Instead, persistent themes in the single-subject jurisprudence has been the inevitable “indeterminacy” of “subject” and disagreement over how deferential courts should be to legislatures. Due to the slipperiness of “subject,” many analyses have focused on what are regularly said to be the primary purposes of the rule—the prevention of legislative logrolling and riders, and the promotion of a more orderly and informed legislative process—and have called for reframing the enforcement of the rule around the advancement of these goals. But determining whether a law is the product of logrolling, or whether a provision should be treated as a rider, will often be difficult. And it is far from clear that logrolls and riders are as pernicious as proponents of more vigorous enforcement of the single-subject rule assume. The more aggressive use of the single-subject rule urged by advocates as a means of thwarting “legislative chicanery” and “backroom politics” could also undo the cooperation and compromise necessary to get difficult but important legislation enacted. This article examines the history and purposes behind the single-subject rule; recent state supreme court cases interpreting it; and the arguments for reframing the rule more tightly around the prevention of logrolling or riders. It finds that although the justifications for the rule – improved legislative deliberation, transparency, and public accountability – are admirable goals the state constitutional rule has not been and is unlikely to be an effective means of achieving those ends.
