In the News
Center for Individual Freedom: Judge Kavanaugh, Crowdfunding and Campaign Finance Laws (Audio)
Bradley Smith, Chairman of the Institute for Free Speech and former FEC Commissioner, discusses whether a crowdfunding campaign by two liberal groups to pressure Senator Susan Collins (R-ME) to vote against Supreme Court nominee Brett Kavanaugh is legal under federal campaign finance laws.
Supreme Court
Wall Street Journal: Kavanaugh Nomination Advances to Full Senate With One-Week Delay
By Kristina Peterson, Natalie Andrews and Rebecca Ballhaus
Judge Brett Kavanaugh narrowly advanced through the Senate Judiciary Committee Friday, clearing his first major hurdle to his Supreme Court nomination, but a pivotal Republican senator said he was a “yes” only with the understanding that the full Senate vote be delayed as long as a week.
The committee approved Judge Kavanaugh in an 11-10 vote along party lines. Sen. Jeff Flake (R., Ariz.) said his vote was conditional on a one-week delay to allow the Federal Bureau of Investigation to look into sexual-assault allegations against Judge Kavanaugh.
It was unclear if Senate Majority Leader Mitch McConnell (R., Ky.) would delay the vote. But if at least one other Republican senator joins Mr. Flake, Mr. McConnell wouldn’t be able to move ahead with the vote, given the GOP’s narrow 51-49 majority in the full Senate…
Moments after the committee vote, President Trump said he would defer to the Senate on whether to open an FBI Investigation into Judge Kavanaugh and delay a floor vote on the judge’s confirmation.
Speaking alongside Sebastián Piñera, the president of Chile, Mr. Trump said he would do “whatever they think is necessary.” Mr. Trump stopped short of calling for the Senate to move to confirm his nominee. Asked what message he had for Sens. Murkowski and Collins, he said, “They have to do what they think is right.”
The Courts
Miami Herald: Former congressman claims vindication after Miami judge dismisses ringer lawsuit
By David Smiley
A Miami judge on Thursday dismissed a Federal Election Commission lawsuit against former congressman David Rivera alleging that he secretly and illegally financed a ringer candidate’s campaign in a Democratic primary six years ago in order to damage his likely opponent.
Judge Marcia Cooke tossed out the 2017 complaint, which stemmed from six-year-old allegations first documented in the Miami Herald that Rivera funneled at least $70,000 in campaign money to a novice political candidate running against then-challenger Joe Garcia. Garcia ultimately won the primary and general elections in Florida’s 26th congressional district, and the candidate who received the undisclosed money, Justin Lamar Sternad, later pleaded guilty to breaking election laws.
A political operative and former girlfriend of Rivera’s also pleaded guilty to her role in the scheme and said she acted as a go-between for Rivera and Sternad, who accepted tens of thousands of dollars in hush-hush advertising and political services that he listed on campaign finance forms as self-loans.
But Rivera has always denied any wrongdoing, and was not charged by the U.S. Attorney’s office. After the statute of limitations ran out, the FEC filed a civil action against Rivera, arguing that he’d broken campaign finance laws prohibiting secret donations. The elections watchdog was pursuing nearly $500,000 in fines, but Rivera argued that if anyone broke election law in the alleged scheme, it was Sternad.
Cooke’s decision to dismiss the case was not based on any arguments of whether Rivera engaged in the alleged scheme, but predicated on a recent court ruling in Utah that found that the law cited by the federal agency in bringing its case against Rivera was fatally flawed.
Congress
Wall Street Journal: Tech Firms Face Bias Accusations at Congressional Hearing
By John D. McKinnon
A day before Google’s chief was set to meet with high-ranking Republicans, critics in a congressional hearing accused the internet giant and other tech firms of being “insular” and dismissive of the free-speech rights of conservatives.
The contentious hearing, the latest such congressional event in recent months, could drive calls for stricter regulation of Google, a unit of Alphabet Inc., and other big tech companies and stoke concerns of their political bias-including accusations that such bias influences content on their platforms-in the run-up to the 2018 midterm elections…
On Friday, Google Chief Executive Sundar Pichai is set to meet privately with top House Republican leaders, including Rep. Kevin McCarthy (R., Calif.), the majority leader. Mr. McCarthy has become a leading critic of the tech firms’ filtering practices, accusing them frequently of bias. He said last week that “Google has a lot of questions to answer.”
At Thursday’s House subcommittee hearing, Rep. Steve King (R., Iowa) warned that tech companies’ alleged bias is beginning to be noticed by the public. “Americans are beginning to recognize this quiet trend in our society in which one group or another systemically silences another’s beliefs with which they disagree,” he said in his opening statement.
Several witnesses representing conservative media at the hearing said some social media companies have hurt them by restricting their internet traffic…
A Google spokeswoman, Riva Sciuto, said, “Our products are not used to set a political agenda, and we don’t bias our algorithms toward any political ideology. We continually work to improve our products, and we never rank search results to manipulate political sentiment.”
Internet Speech Regulation
Daily Beast: Silicon Valley’s Big-Name, Big-Money Political Ad Gambit
By Lachlan Markay
The firm, digital-media startup MotiveAI, has created a handful of limited liability companies in Colorado through which it’s purchased ads on at least 44 different Facebook pages…
But it is also testing the limits of federal campaign-finance laws that are still very much stuck in the 20th century. Facebook’s recent decision to require additional information from its political advertisers revealed the names of four LLCs that MotiveAI has used to mount its advertising campaign. But the involvement of MotiveAI itself is not disclosed, on Facebook or anywhere else, in part because current election laws have weaker disclosure requirements for digital ads than those run on TV and radio, or through direct mail and phone-banking.
“This is a good example of the digital loopholes in our campaign-finance laws,” said Brendan Fischer, the director of federal and Federal Election Commission reform programs at the Campaign Legal Center, an ethics watchdog group. He pointed to MotiveAI ads attacking Republican Senate candidates in competitive states such as North Dakota and Tennessee.
“These ads could be subject to [Federal Election Commission] reporting as ‘electioneering communications’ if they were run on TV or radio, but not when run online,” Fischer explained. “An electioneering communication is defined only as a broadcast ad naming a candidate and run shortly before an election. This means that a political ad subject to legal transparency requirements when aired on TV can remain shrouded in secrecy when that same ad is run online.”
The definition of “electioneering communication” was codified by the McCain-Feingold law of 2002. That’s 16 years of rapid innovation for which lawmakers have yet to account.
The Media
Los Angeles Times: L.A. judge orders media not to publish courtroom photos of man charged with killing homeless people
By Jaclyn Cosgrove and James Queally
A Los Angeles County judge ordered journalists Wednesday not to publish courtroom photographs of a Houston man charged with killing multiple homeless people in the L.A. area, a move that The Times plans to challenge in court as an unconstitutional prior restraint against the media…
The judge’s order comes eight years after an appellate court overturned a similar order prohibiting The Times from publishing photographs of a defendant charged with several counts of murder.
“It is distressing that once again the Los Angeles Times needs to resort to litigation to preserve our rights under the 1st Amendment,” Times Executive Editor Norman Pearlstine said.
California state court judges have wide discretion to allow or bar photos and video in their courtrooms. Defense attorneys often object if there are concerns that publishing photographs of their clients could improperly influence witnesses in a case in which identification is crucial. However, judges generally cannot prevent images from being published once they’re taken legally.
Free-speech experts were quick to contend that the judge’s actions would probably be considered an unconstitutional act of prior restraint.
“Once the photos have been taken, once the photographer has those images in his or her camera, the court’s ability to prevent them from being published is very close to zero,” said David Snyder, executive director of the First Amendment Coalition, a free-speech nonprofit organization.
Candidates and Campaigns
Washington Post: Want your campaign funding to be effective? Diversify.
By Ethan Roeder
Political investors, both individual and institutional, confuse the political value of a race with the electoral utility of additional dollars. Some races are, of course, very politically valuable – a competitive U.S. Senate seat, for instance, in a year when the balance of power is in play. But there is a limit to how much money a campaign can spend in a useful way…
The fact is once all the basics of campaign engagement are fully paid for, additional dollars have virtually no chance of influencing the result.
Meanwhile, hundreds of exceptional but little-known candidates are attempting in vain to introduce themselves to voters. As a partisan, I believe investing in these undervalued races will yield better overall returns for the political party I support, and as a voter, I believe a more balanced political environment would be better for our democracy.
What I propose is investing in campaigns following the same framework that guides financial investors toward diversification: I call it the Modern Portfolio Theory for Campaigns. Like its financial counterpart, it spreads out investments to limit risk, is optimized for long-term rather than short-term results and, perhaps most revolutionary for politics, is more concerned with the performance of the overall portfolio than with any one component (i.e., a candidate).
Instead of placing a few extremely large bets, political investors using this theory would expand their portfolios to include undervalued races and only fund top-tier races to a reasonable level. While lesser-targeted races are riskier, your marginal investment goes much further in an undervalued race than an overvalued one…
The time is right for a new approach to funding campaigns. By adopting a portfolio approach, political investors can both improve outcomes and improve our democracy.
The States
AP News: ACLU: Good-government measure violates First Amendment
By Associated Press
The American Civil Liberties Union’s North Dakota chapter says a measure aimed at ethics reform in the state violates the First Amendment.
Measure 1 would amend the North Dakota constitution to ban foreign money from state elections, restrict lobbying and create an independent ethics commission, among other provisions.
Backers call it an “anti-corruption” measure aimed at transparency.
But the ACLU says the measure is “poorly written” and restricts “political speech and advocacy.”
The state’s largest business organization also announced this month that it will campaign to help defeat the measure.
The Greater North Dakota Chamber says it would be difficult to comply with the measure because it is too broadly worded.
Campaign filings show supporters of the initiative have attracted nearly $420,000, much of it from left-leaning out-of-state groups.
Las Vegas Review-Journal: Las Vegas judge will reconsider ruling to overturn election
By Ramona Giwargis
A Las Vegas judge on Thursday agreed to reconsider his decision to overturn a Nevada Assembly election because the winner was late in filing campaign finance reports.
Clark County District Judge Jim Crockett ruled on Sept. 13 to nullify the Assembly District 5 Republican primary election after the defeated candidate, Mack Miller, sued the winner, Jason Burke. Miller claimed Burke should be declared ineligible for office because he failed to file timely campaign finance reports.
Although the Nevada Constitution does not recognize late reports as a candidate disqualifier, Crockett agreed and deemed Miller the rightful winner. Burke asked the judge to reconsider his ruling – which Crockett granted on Thursday – and the two sides will return to court on Oct. 9 to hash out the case over the GOP candidate for the Las Vegas district.
WRAL Raleigh: Judges come out against two proposed NC amendments
By Laura Leslie
Some local judges have joined the fight against two proposed constitutional amendments on the ballot in November.
Lawmakers have put six amendments before voters this fall, but two have generated intense opposition. They would take the power to name members of the State Board of Elections and Ethics Enforcement and to fill judicial vacancies from the governor and give those powers to the legislature.
All five living former governors, both Republican and Democrat, and all six living former chief justices of the state Supreme Court have said those two proposals would undercut the judiciary and erode the separation of powers between the branches of government…
Regarding the elections board amendment, [retired Superior Court Judge Donald] Stephens said lawmakers want political control over who is and is not investigated for campaign finance and ethics violations.
“That’s like foxes appointing foxes to investigate who ate the chickens,” he said…
The State Board of Ethics and Elections is currently bipartisan, made up of four Republicans, four Democrats and one Independent. The amendment would take the power to appoint the board away from the governor and give it to state lawmakers, and it would cut the number of board members from nine to eight, removing the independent.
[Retired Superior Court Judge Gregory] Weeks said an even-numbered board would lead to partisan deadlock, generating electoral litigation that could cost taxpayers hundreds of thousands of dollars.
Lawmakers had to rewrite both proposals recently after a state court ruled that earlier versions were misleading to voters.
York Dispatch: Politicos stumped by Wagner’s investments of ‘excess campaign funds’
By Logan Hullinger
Facing a Democratic incumbent who is raising and spending more money in Pennsylvania’s gubernatorial race, Republican Scott Wagner is making an unusual move with his campaign contributions…
Wagner – a York County businessman, like Wolf – has been investing “excess campaign funds” in a brokerage account…
The campaign itself also has been loaned nearly $1.4 million from the account since 2017.
Wagner campaign spokesman Andrew Romeo clarified all of the money invested into the account was from Wagner’s own donations…
The state’s campaign finance laws state that as long as interest and dividends are “received in accordance with the applicable banking laws and in the ordinary course of business,” investing funds is legal…
However, some Pennsylvania political analysts have never heard of such a strategy and struggled to find a reasoning behind Wagner’s investments.
Micah Sims, executive director of Common Cause Pennsylvania, a nonpartisan political watchdog organization, said in his more than 20 years in politics he’s “never seen anything like this.”
“This is probably a practice that many people, including myself, would totally frown upon,” he said. “I don’t understand why we’re running political campaigns to make money. I thought that happened on Wall Street.”
Sims added that although the practice may be within the boundaries of the state’s campaign finance laws, Wagner’s report illustrates the need for campaign finance law reform.
“This is something that has raised a red flag,” he said. “We are going to push upon and address this to fix campaign finance laws in Pennsylvania.”
Bangor Daily News: Money can’t buy love or the Blaine House
By Michael Cianchette
Well, Janet Mills is winning.
Not necessarily the Blaine House. The limited polling shows a neck-and-neck race, while the lawn sign battle points to a clear Shawn Moody victory. But she is winning the money race…
Put it all together and Mills is flirting with $4 million. Moody is at half that. And you know what? It won’t really matter.
The Beatles sang “money can’t buy me love,” and they were right. Money doesn’t buy the Blaine House – or any political office for that matter – either…
Spending is useful and necessary to get the name and perspective of a candidate out into the minds of the public. But at some point, all the electioneering in the world boils down to a simple question, asked of each voter individually: Which person should get the job?
That is where claims about “buying” elections break down. No matter how much money gets spent, it is hard to see a scenario where a Republican wins a State House seat in the center of Portland. All the dollars or dinars in the world will not see a U.S. Senate seat from Utah go to a Democrat in the near future…
Mills may be winning the money race, but remains far from measuring for new carpet in the Blaine House.
So, as we go into Fryeburg Fair week, enjoy all the jockeying and spin the campaigns will offer about the underlying meaning contained within their financing reports. Tolerate the fact that tens upon tens of thousands of dollars are being spent to put signs alongside our roads as we move into foliage season.
And buckle-up. Because the dash to the finish is just getting started, and we won’t know a winner until Nov. 7.
