In the News
MassLive: Mass Fiscal Alliance sues state over donor disclosure requirements
By Shira Schoenberg
Under [Massachusetts law], all ads that name candidates within 90 days of an election must disclose the organization’s top five donors. Ads must also include an on-camera statement from the organization’s principal officer.
Allen Dickerson, director of the Virginia-based Institute for Free Speech, who is filing the case for the Massachusetts Fiscal Alliance, said the eight seconds it takes to state the government disclosure in an ad costs organizations hundreds of dollars. “These requirements simply raise the cost of speaking about government by forcing speakers to waste their resources promoting the government’s message,” Dickerson said.
The Massachusetts Fiscal Alliance says it wants to run TV, radio and online ads in Sen. Marc Pacheco’s district. Pacheco, a Taunton Democrat, is not facing a contested election. The ads call attention to legislative votes to raise taxes on income over $1 million and to raise lawmakers’ pay.
The Alliance says if the regulations are not repealed, it will not run the ads.
The group objects to the need to disclose donors who only gave to the Massachusetts Fiscal Alliance’s general purpose, not to the particular ad; to the extra time and space needed in the ads, including the need to publish the address of the state Office of Campaign and Political Finance’s website; and to the requirement that the chairman appear on camera. They say the names of these donors are “irrelevant,” and it is also irrelevant to require the chairman to appear on camera and reveal personal characteristics, such as race, gender and disability.
The group says the disclosure laws infringe on its First Amendment rights.
“The only way that the Alliance … can avoid these burdens is to remain silent,” attorneys for the Massachusetts Fiscal Alliance wrote in the lawsuit.
Courthouse News Service: Opponents of Millionaire Tax Fight Massachusetts Disclosure Rules
By Zack Huffman
A conservative nonprofit that plans to attack Massachusetts taxes in a pre-election ad campaign brought a federal complaint Wednesday to keep its donors secret.
Represented by Foley Hoag and the Institute for Free Speech, the Massachusetts Fiscal Alliance would fall under the state’s reporting scheme merely because it plans to mention state Senator Marc Pacheco in an ad.
But the alliance insists that mentioning Pacheco is not sufficient to compel its speech. Since the “does not promote, support, attack, or oppose a specific candidate,” it says it should be allowed to keep its donors private as a 501c4 organization.
“The alliance’s ads are about legislative issues regarding the revenue generation and spending priorities of the Massachusetts General Court, not the evaluation of candidacies for office – indeed, while Senator Pacheco is up for re-election, he is running uncontested,” the 32-page complaint states…
Because ads mention a candidate’s name and air within 90 days of an election, meanwhile, the state would have the alliance include a statement of support from one of its officers and identify its top five donors. Such requirements were created by laws passed in 2010 and 2014.
“The two major revisions to our state’s campaign finance laws that have occurred over the last several years are classic examples of intimidation legislation, plain and simple,” Massachusetts Fiscal Alliance spokesman Paul Craney said in a statement. “Our state government should be working to expand our First Amendment rights, not contract them. This lawsuit is not about getting rid of disclosure. Rather, this is about removing intimidation from the process.”
Supreme Court
Election Law Blog: Utah Republican Party Files Interesting Cert Petition on Whether State Can Force Parties to Use Primary Rather than Caucus
By Rick Hasen
You can find the cert. petition in Utah Republican Party v. Cox at this link. Here are the questions presented:
As a private expressive association, “[a] political party” enjoys a general First Amendment right “to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.” N.Y. Bd. Of Elections v. Lopez Torres, 552 U.S. 196, 202 (2008). The First Amendment thus gives “special protection” to “the process by which a political party selects a standard bearer” California Democratic Party v. Jones, 530 U.S. 567, 575 (2000). Here, however, the Tenth Circuit has joined the Ninth in permitting a government to force a political party to select candidates through a primary rather than a caucus system, for the viewpoint-based purpose of avoiding candidates with “extreme views.”
The questions presented are:
- Does the First Amendment permit a government to compel a political party to use a state-preferred process for selecting a party’s standard-bearers for a general election, not to prevent discrimination or unfairness, but to alter the predicted viewpoints of those standard-bearers?
- When evaluating the First Amendment burden of a law affecting expressive associations, may a court consider only the impact on the association’s members, instead of analyzing the burden on the association itself, as defined by its own organizational structure?
Cato: Objecting to Compelled Speech Is More than Sour Grapes
By Ilya Shapiro and Michael Finch
In Delano Farms v. California Table Grape Commission, Cato, joined by the Reason Foundation, Institute for Justice, and DKT Liberty Project, is continuing to support a farm business’s challenge to a California state-established commission that compels grape growers to contribute money for government-endorsed advertisements. We had previously filed in the California Supreme Court, which was a losing battle, and are now asking the U.S. Supreme Court to take the case…
The California Table Grapes Commission has claimed that it is part of the government and that its speech is thus “government speech.” But the commission isn’t the government; it’s a commercial entity or trade group that uses compelled subsidies to fund speech…
[N]o person employed by the California government has ever written, produced, or even reviewed the speech the commission compels. In all other cases where the government programs were held constitutional, the government took direct control of the message and maintained oversight of a regulatory entity. None of that is true here. The commission here is a private entity, with the power to exact fees from members who have no choice but to pay for whatever message it ends up promoting.
In our brief, we argue that the Supreme Court should take this case and treat forced subsidies for generic advertising the same way it treats other such subsidies: as violations of the First Amendment freedoms of speech and association. The California courts relied on a decision recently overturned in the Supreme Court’s Janus holding this past June, in which compelled association and speech in union representation was deemed a violation of the First Amendment. The Court should continue with this line of reasoning here: no one should be compelled to support a non-government message.
The Courts
Politico: Mueller gets longest sentence yet for man who helped Russian trolls
By Darren Samuelsohn
A federal judge on Wednesday sentenced a California man to six months in prison and six months of home confinement after he pleaded guilty to a felony identity fraud charge tied to Russian troll activity that rocked the 2016 presidential campaign.
The sentence for Richard Pinedo, 28, is the most severe penalty handed down yet in special counsel Robert Mueller’s high-profile investigation into Moscow’s meddling to help elect President Donald Trump.
Pinedo’s case stemmed from his admission in February to unwittingly selling stolen bank accounts to Russian internet trolls who used the credentials to buy internet ads that sowed discord among Americans in the lead-up to Trump’s upset victory almost two years ago.
In brief statement before U.S. District Judge Dabney Friedrich handed down his sentence, Pinedo said he took “full responsibility” for his actions and pleaded for leniency because of both his full cooperation with Mueller’s investigators and the threats that he’s experienced since being publicly identified in the wider Russian efforts to influence the White House race…
Pinedo said his life had been turned “upside down,” and that he worried for his safety after his home address was published online. “Every knock on the door comes with anxiety about who it may be,” he said.
While Friedrich’s sentence was the longest Mueller has obtained, it was on the low end of the sentencing guideline recommendations.
Cook County Record: Uber, Lyft video ads maker, City Hall face off in court over Chicago’s ridesharing ad ban
By Dan Churney
Technology company Vugo Inc. and the city of Chicago both filed court papers Oct. 5, regarding the lawsuit the company brought in February 2017 against the city in U.S. District Court for the Northern District of Illinois…
Vugo defeated the city’s attempt to dismiss the lawsuit in August 2017. Now, Vugo and the city have lodged motions for summary judgment, which would declare one or the other the victor.
In 2014, Chicago enacted a ridehailing ordinance that prohibited ride-hailing services like Uber and Lyft from displaying commercial advertising on or inside their vehicles…
Under Vugo’s service, drivers download an app onto tablet computers, which then generates interactive advertising…
Vugo said it is paid by advertisers, and then pays a percentage of revenue, which could be about $100 per month, to drivers using its service.
Vugo said it wants to offer this service in Chicago, but Chicago’s ordinance allegedly stifles the company’s right to free speech and, because the ordinance doesn’t similarly effect traditional taxis, also runs counter to the constitutional guarantee of equal protection before the law…
The city is contending commercial speech enjoys less protection than other speech and the ban promotes safety, aesthetics and passenger comfort by reducing “visual and audio clutter,” which can distract drivers and pedestrians, as well as intrude on “captive” passengers.
Further, the ban prevents private ride-hailing vehicles from having exterior adornment that could cause them to look like taxis, which prevents people from confusing a Uber or a Lyft for a taxi, in the city’s view.
Online Speech Platforms
New York Times: Made and Distributed in the U.S.A.: Online Disinformation
By Sheera Frenkel
In 2016, before the presidential election, state-backed Russian operatives exploited Facebook and Twitter to sway voters in the United States with divisive messages. Now, weeks before the midterm elections on Nov. 6, such influence campaigns are increasingly a domestic phenomenon fomented by Americans on the left and the right…
The shift toward domestic disinformation raises potential free speech issues when Facebook and Twitter find and curtail such accounts that originate in the United States…
On Thursday, Facebook said it had identified 559 pages and 251 accounts run by Americans, many of which amplified false and misleading content in a coordinated fashion. The company said it would remove the pages and accounts. Among them were Right Wing News, which had more than 3.1 million followers, and left-wing pages that included the Resistance and Reverb Press, which had 240,000 and 816,000 followers.
Facebook said it would be the most domestic pages and accounts it had ever removed related to influence campaigns…
“If you look at volume, the majority of the information operations we see are domestic actors,” said Nathaniel Gleicher, Facebook’s head of security. He added that the company was struggling with taking down the domestic networks because of the blurry lines between free speech and disinformation…
Domestic disinformation is harder to root out than foreign disinformation, researchers said, because in many cases it mirrors genuine networks of Americans engaging in free speech online.
Congress
Washington Examiner: Senate committee votes to ban foreigners who interfere in US elections
By Kelly Cohen
The Senate Judiciary Committee on Thursday passed legislation that would ban foreign nationals who try to interfere with U.S. elections.
The Defending Elections against Trolls from Enemy Regimes, or the DETER Act, is aimed at cracking down on people outside the U.S. who try to change the outcome of elections, an issue members of both parties have raised as a priority this year. Under the bill, which passed in a unanimous voice vote, foreigners who are deemed to have meddled in a U.S. election couldn’t get a U.S. entry visa.
The bill targets “improper interference,” which is defined as conduct that violates federal criminal, voting rights, or campaign finance law, or is under the direction of a foreign government. Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C., sponsored the DETER Act…
The passage of the DETER Act out of the Senate Judiciary Committee and to the full Senate floor comes with less than a month until the November midterms.
Still, there is no immediate guarantee Senate Majority Leader Mitch McConnell will call it up on the Senate floor before the midterm elections in November.
Last month, Trump signed an executive order authorizing sanctions against foreigners who seek to meddle in U.S. elections.
American Prospect: House Democratic Challengers Demand Campaign-Finance Reforms
By Fred Wertheimer
The Supreme Court this June expanded First Amendment protections to cover public employees who don’t want the state extracting union dues, voters who seek to wear political clothing or paraphernalia at the polls, and some businesses that chafe at being told by the government that they must display certain information…
The citizenry, meanwhile, was moving in the opposite direction. In a memo leaked in June, staffers at the American Civil Liberties Union (ACLU) agonized that the organization’s fabled commitment to the First Amendment might have a “harmful impact on the equality and justice work to which we are also committed.” All summer long, rightists and leftists took turns trying to get their political opponents fired from their jobs and banished from social media platforms over speech deemed intolerable. Even on the Supreme Court, Justice Elena Kagan warned that her conservative colleagues were “weaponizing the First Amendment.” …
[W]e don’t have to wait to see whether the cultural turn against free speech will filter into law and the enforcement thereof. It’s already happening…
[E]ven on issues like antitrust enforcement and the long-dead, ill-advised Fairness Doctrine, Republican politicians and commentators are abandoning positions they’ve held for decades…
Politicians respond to incentives created by voters, and right now voters want speech suppressed. Sens. Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), and nine of their colleagues have asked the FCC to consider revoking Sinclair’s license altogether, based on content concerns. Sen. Ted Cruz (R-Texas) recently said that breaking up big tech companies in the name of free speech is an issue he is “looking at seriously.” …
The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.
FEC
National Law Review: FEC: Cybersecurity Services to Candidates, Political Parties Not In-Kind Contributions
By Joseph A. Kanefield and Christopher M. Proczko
The Federal Election Commission (FEC) released a draft advisory opinion (draft AO) yesterday, holding that a nonprofit corporation providing certain cybersecurity services to candidates and political parties are not in-kind contributions.
Defending Digital Campaigns, Inc. (DDC) is a nonprofit corporation under Washington, D.C., law, exempt from federal income tax under § 501(c)(4). Its stated purpose is “to provide education and research for civic institutions on cybersecurity best practices and assist them in implementing technologies, processes, resources, and solutions for enhancing cybersecurity and resilience to hostile cyber acts targeting the domestic democratic process.” DDC’s request for an AO seeks the FEC’s guidance on whether the Federal Election Campaign Act, 52 U.S.C. §§ 30101-45 allows DDC to provide certain cybersecurity services, software, and hardware to candidates for federal office and political parties for free or at a reduced cost, or whether those actions would constitute in-kind contributions…
The draft AO determines that DDC’s activities would not constitute in-kind contributions. The FEC noted that DDC’s organizational structure ensured that its activities remain nonpartisan, and that several provisions of the act and FEC regulations allow corporations to engage in certain nonpartisan activities without those activities being prohibited in-kind contributions (e.g., encouraging individuals to vote or register to vote, distributing registration or voting information, preparing and distributing voter guides). The through-line of these activities, and that DDC’s proposed activities share, is that they are offered on an objective, nonpartisan basis and are meant to facilitate the proper functioning of the electoral process rather than to support or oppose any candidate or party.
Candidates and Campaigns
Vox: Citizens United is fueling outsider candidates
By Cory Manento
Political parties and interest groups don’t always prefer the same candidates. It used to be that the party-backed candidate had a better chance of winning the nomination, but since the Supreme Court’s decision in Citizens United (2010), interest groups are increasingly calling the shots.
Party organizations are used to seeing their preferred candidates win congressional primaries, due in large part to the spending advantages they can provide. However, since the federal courts have allowed for Super PACs to boost candidates friendly to their agenda, interest groups have been able to spend enough to challenge the party’s consensus in congressional primaries if they so choose…
Recent studies have shown that establishment-friendly candidates fared well in congressional primaries in 2018. To be sure, party organization-preferred candidates in my analysis won open seat House primaries more than 60 percent of the time from 2006 to 2016. However, the story becomes more complicated when the party organization and interest groups disagree on which candidate to support.
Though fundraising does not guarantee success, interest groups’ preferred candidates have become increasingly successful once limits on their spending were effectively removed. Prior to 2012, the first full primary cycle in which Super PACs existed, the interest groups’ preferred candidate defeated the party organization’s preferred candidate 29 percent of the time in the races in which the two groups preferred different candidates. From 2012 to 2016, interest group-preferred candidates won 60 percent of the time when interest group and party preferences clashed.
Wisconsin John Doe
Heartland Institute: Wisconsin’s John Doe Raids, Five Years Later (Guest: Matt Kittle)
By Jesse Hathaway
Five years ago, Wisconsin law enforcement officers conducted predawn, armed raids on the homes of everyday citizens seeking evidence of campaign finance violations connected to Gov. Scott Walker…
MacIver Institute investigative reporter Matt Kittle joins Heartland Institute research fellow and managing editor Jesse Hathaway to talk about the fallout from Wisconsin’s “John Doe” investigations, five years after a suburban Madison mom was awakened by sounds in the darkness, and then her children woke up to armed deputies standing over their beds.
Kittle says, over the past few years multiple courts found was that the scores of conservatives targeted were merely engaging in their First Amendment rights of political speech and association, just as left-wing organizations were freely permitted to do during Wisconsin’s bitter political recall season.
Kittle says the Wisconsin Supreme Court even found was that illegal conduct was perpetrated by non-partisan government agencies, like the former state Government Accountability Board and its hand-picked special prosecutor, and the Democrat-led Milwaukee County District Attorney’s office and its abusive prosecutors and investigators.
The States
The State: Will SC lawmakers close loopholes exposed by State House corruption probe?
By Maayan Schechter
Legislators and Gov. Henry McMaster said Wednesday they want to see the state toughen its ethics laws in the wake of a grand jury report into corruption at S.C. State House.
Grand jurors called for a number of reforms in the report, including eliminating “dark money” and defining the difference between lobbyists and consultants.
That report said a “weakness” in S.C. laws allowed major S.C. institutions to pay GOP consultant Richard Quinn Sr. to exert his influence at the State House without ever disclosing his aid, the state grand jury said in its report Tuesday.
The General Assembly, meanwhile, has “failed” to pass legislation that would expose donors behind so-called “dark money” – money from unknown sources – that is spent to influence elections and sway S.C. voters, the 270-page report also said.
“It is shocking that this has gone on,” said state Rep. Gary Clary, R-Pickens, who, last year, proposed a handful of bills that would have closed loopholes – for example, requiring politicians to disclose which special interests give them money – in the state’s ethics laws.
But those proposals went nowhere, never receiving a committee hearing…
State lawmakers and advocates for ethics reform said Wednesday they are ready to see action on “dark money.” …
But passing legislation to overturn state law on dark money will be a tough fight, said state Senate Majority Leader Shane Massey, R-Edgefield. However, he said, “dark money (disclosure) is something we definitely ought to push for.” …
Gov. McMaster has backed strengthening the state’s ethics laws.
On Wednesday, McMaster – who was appointed by former S.C. Gov. Nikki Haley to co-chair an ethics reform task force in 2012 – said he wants to require more special interests to register as lobbyists and strengthen the Ethics Commission.
Quartz: Which US state is most corruption-prone? Look away, North Dakota
By Max de Haldevang
The US public has spent the past two years riveted by high-level corruption scandals and allegations in Washington, DC. They should also be looking closer to home, according to a new report by anti-corruption NGO Coalition for Integrity.
The NGO graded all 50 states plus Washington, DC, on the strength of their anti-corruption laws and regulations, and found that only sixteen got a passing grade of 60% or more. North Dakota came in last with 0% and Wyoming behind it at 12%.
Both states have some draft measures on the horizon. However, at present, North Dakota doesn’t have any rules against officials accepting gifts of any size from lobbyist. It also has no ethics commission; doesn’t require that outside entities like Political Action Committees disclose their contributors; and doesn’t ask sitting lawmakers to file any financial disclosures.
In contrast, Washington and California come out on top, with scores of 78% and 75%, respectively…
The report, named the S.W.A.M.P. Index, grades each state according to how its corruption and ethics framework hold up to eight questions, focused on: whether they have an ethics enforcement agency (and whether it has any teeth); rules around giving gifts to officials; campaign finance reporting requirements for entities like PACs; and officials’ personal finance reporting requirements. Most weight was given to the strength of enforcement and the rules surrounding gifts.
