Zuckerbucks and Prohibited Campaign Intervention
If you got a chance to watch the Ways and Means hearing last week regarding nonprofits and politics, you saw a fairly informative mostly nonpartisan discussion by some good witnesses. The discussion from the witnesses, if not the Representatives asking the questions, was pretty fairly academic. Our fellow blogger Philip Hackney was erudite and most academic of all the witnesses. Read his comments here. Another witness, Justin C. Chung from the Congressional Research Service provided a concise but fairly comprehensive primer on the history of legislative efforts to police nonprofit political activities as well as approaches to donor disclosure. There is some good data in his testimony. Hackney and Chung’s written testimony are worth downloading.
The other two witnesses, Scott Walter and Stuart Whitson were fairly obviously partisans asserting that “Zuckerbucks” were part of the effort to steal the 2020 election from Donald Trump. The chair and his allies pretty clearly hand picked those witnesses, as would any good Democrat if the tables were turned I suppose. Zuckerbucks is meant as a pejorative by Trumpsters who want us to believe that Mark Zuckerberg and Priscilla Chan funded the theft of the Presidency in 2020 by donating money to local election offices. Walter and Whitson labeled those donations part of Democrats’ successful efforts to steal the 2020 election. Here is some verbiage from House Republicans:
During the 2020 election, so-called “Zuckerbucks” largely went to Democrat-run cities and counties in swing states as one witness testified. The Meta billionaire used two 501(c)(3) charities to donate the money, potentially abusing the tax code by appearing to favor one political party over another. Rep. Claudia Tenney (NY-24), co-chair of the Election Integrity Caucus, highlighted how her proposed legislation, H.R. 1725 – End Zuckerbucks Act, would prohibit state and local election offices from accepting private donations. Rep. Tenney: “I offered the End Zuckerbucks Act, and thankfully that lead was taken by a number of states around the country, to end Zuckerbucks. Mr. Walter, thank you so much for continuing to fight the election integrity issue. Thank you for the shout out, Mr. Whitson, for the Promoting Free and Fair Elections Act to get rid of the Biden executive order that is really electioneering and an attempt to, in a partisan way, use the government in place of what Zuckerbucks was out to do – using dark money. The darkest of dark money is exactly as you cited, Mr. Walter, this newfound way to use 501(c)(4)s into 501(c)(3)s and to hide the fact that these are partisan. Zuckerbucks was a perfect example of how partisan these were.”
Since the donations were made largely through the Center for Tech and Civic Life, the witnesses necessarily think that 501(c)(3) organization is engaged in prohibited campaign intervention. The Cato Institute labels the accusation part of a broader effort to perpetuate the stolen election conspiracy theory. Though the Cato Institute concludes that the evidence “is simply not there,” it helpfully includes links to both sides of the argument. Unlike Ways and Means which hosted no witnesses to dispute Walter and Whitson’s narrative. Here is the Cato Institute informative post on the matter:
In the lead‐up to the 2020 election, philanthropies backed by Facebook founder Mark Zuckerberg and his wife Priscilla Chan provided grants to local election offices around the country to aid in administrative tasks, voter communication, and other work made more challenging by the COVID-19 pandemic — a program sometimes nicknamed Zuckerbucks. Some Republicans have charged that the grants were improperly meant to assist Democrats by differentially increasing turnout of their likely voters, especially in bigger cities. Many backers of former President Donald Trump took the episode to heart as part of what they imagine to have been the rigging of the 2020 election.
As I’ve noted in this space before, there is reason to doubt that the grants, to the extent that they raised turnout at all, made any difference in the election’s major outcomes. In Wisconsin, one of the closest states, a study by the right‐of‐center Wisconsin Institute of Law and Liberty estimated that any extra turnout, if measurable at all, would not have been enough to swing the election. (In addition, as a legal matter, courts will not throw out otherwise lawfully cast votes even if they were encouraged by a voter turnout effort that violated some rule.)
In due course various complaints were filed with the Federal Election Commission (FEC) characterizing the grants as improper donations meant to influence an election. This summer, however, the FEC voted to find no reason for the allegations and dismiss the complaint, and more recently it explained its reasoning in detail in a 20‐page analysis. In both cases its decision was by a unanimous 6–0 vote.
That’s significant because, as many readers know, the division of the six‐member FEC between three D and three R appointees regularly results in even splits on issues that divide experienced party lawyers. That’s more or less the way the commission is designed to operate. Yet not one of the three Republican commissioners found reason to support the allegations.
Some states have lately chosen to ban these sorts of private donations to public election agencies, and to repeat a point I’ve made before, I think it’s perfectly legitimate to have a debate about restricting them. (Shikha Dalmia has defended the grants here.) Even when the grants are offered to all comers, many localities will decline to participate, so at least in principle they might wind up stoking turnout in uneven ways. That their impact might have proved generally benign this time does not mean it will remain so in the future. They might, for example, afford ideologically committed donors an “in” to influence or at least scope out local elections policy. If you want to see many advocates on both sides do a fast switch, wait till some philanthropist offers to foot the bill for localities to prosecute, say, unlawful ballot harvesting. (Compare.)
But claims that the Zuckerberg grants were part of some vast scheme to rig the outcome? The evidence is simply not there. Another Stop the Steal theory is down for the count.
darryll k. jones