In the News
Kansas City Star: Court ruling could force everyday Missourians to register as lobbyists, attorneys say
By Jason Hancock
Ron Calzone has been walking the hallways of the Missouri statehouse for years, meeting with lawmakers and their staffs, testifying before legislative committees and advocating for the conservative causes he holds dear…
In a 2-1 ruling on Wednesday, the court found that Calzone’s activity qualifies as lobbying, and the government’s interest in transparency means even an unpaid lobbyist must register and file lobbying reports.
Calzone’s attorneys say the decision is a significant strike against the constitutional right to petition the government and have vowed to appeal. They argue that the court’s interpretation of Missouri lobbying law could end up being expansive enough to require everyday citizens to register as lobbyists or face the possibility of a complaint that could lead to criminal penalties.
“The problem is that every year dozens of groups go down to the Capitol for lobby days, and they have people designated to speak on behalf of these groups,” said David Roland, one of Calzone’s attorneys and director of Litigation for the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency.
“And there is no principle distinction between that and what Mr. Calzone does. None,” Roland said. “They are volunteers, but according to this ruling, those people should have to register and report as lobbyists.” …
Dissenting from the majority opinion, Judge David Stras wrote that the ruling appears to apply to all sorts of citizens who might attempt to influence lawmakers…
“The law seemingly sweeps up all unpaid political advocacy by anyone who acts on behalf of someone else, no matter how often it occurs and regardless of purpose,” Stras wrote.
Washington Examiner: Missouri lobbyists don’t want citizens talking to legislators, US Court of Appeals agrees
By Philip Wegmann
Ron Calzone was exercising his right to petition the government when he ran afoul of the Missouri Society of Government Consultants, the professional association of lobbyists…
The rancher and small business owner has met with lawmakers to discuss individual liberty, free markets, and limited government. No one pays him…
His free speech, that conglomerate argued in a complaint to the Missouri Ethics Commission, amounts to a violation of state transparency laws. Calzone never registered as a lobbyist, even though he is involved with Missouri First – a nonprofit with no financial resources.
And the U.S. Court of Appeals for the Eighth Circuit agrees…
In his lone dissent, Judge David Stras wrote that the ruling “endangers the free exchange of ideas.” He fears that the overly broad definition pushed by his colleagues applies to citizens who make trips to the state capitol for one of the so-called “lobby days,” dates set aside for advocacy groups to petition their lawmakers.
But the real danger, which Stras hits on his dissent, is the proliferation of weaponized ethics complaints.
“Indeed, a political adversary, an unscrupulous government official or even a legislator tired of being held accountable could simply submit a complaint to the [ethics] commission accusing a politically active citizen of lobbying … without first registering as a lobbyist,” Stras wrote. “It may just be simpler for a citizen to skip a lobbying day or pass up the opportunity to call a legislator rather than having to complete tedious paperwork or risk sizable fines and criminal penalties.”
The Courts
Just Security: Yes, Collusion: The Legal Significance of the New Mueller Revelations
By Bob Bauer and Ryan Goodman
The special counsel’s draft Statement of Offense for Jerome Corsi includes much extraordinary information. But what are the most legally significant details to emerge? At bottom, the draft court document supplies additional reason to believe that Bob Mueller can charge Trump Campaign associates and the campaign itself for violations of federal campaign finance law either directly under the Federal Election Campaign Act (FECA) or as part of a conspiracy to defraud the United States by obstructing the capacity of the Federal Election Commission to enforce the FECA….
The draft Statement of Offense contains direct and circumstantial evidence of the following four facts:
1.Stone was acting in collaboration with or as an agent of the Trump Campaign in the pursuit of the Wikileaks documents
2. Wikileaks founder Julian Assange provided information directly to Trump campaign agents or associates as part of his group’s effort, in collaboration with the Russian government, to help the Trump campaign
3. Roger Stone had advanced knowledge about the specific content and timing of Wikileaks’ document releases, including Wikileaks’ possession of and plans to release Clinton Campaign Chairman John Podesta’s emails and documents purportedly related to Clinton’s health
4. Trump Campaign agents or associates coordinated campaign-related public communications with what Assange secretly told them were Wikileaks’ planned activities.
Courthouse News Service: Ninth Circuit Mostly Upholds Alaska Campaign-Finance Limits
By Helen Christophi
The panel’s majority found the provision limiting annual aggregate out-of-state contributions to $3,000 doesn’t deter corruption and thus violates the First Amendment.
“States have an important interest in preserving the integrity of their political institutions. A vital method of doing so is by curbing large monetary contributions, which can corrode the public’s faith in its government’s responsiveness to the popular will,” U.S. Circuit Judge Consuelo Callahan wrote for the majority in a 31-page opinion.
“Thus, while campaign contributions implicate a contributor’s First Amendment right to express a particular political viewpoint, the state has an important interest in combating quid pro quo corruption or its appearance,” she continued. “But the court erred in upholding the nonresident aggregate contribution limit because it, at most, targets contributors’ influence over Alaska politics.” …
“We cannot agree that the nonresident limit targets quid pro quo corruption or its appearance,” Callahan wrote. “At most, the law aims to curb perceived ‘undue influence’ of out-of-state contributors-an interest that is no longer sound after Citizens United and McCutcheon.”
Philadelphia Inquirer: In testimony, Bob Brady aide punches back at prosecutors
By Jeremy Roebuck
In full-throated and often combative court testimony Tuesday, U.S. Rep. Bob Brady’s top political adviser denied that he flouted federal campaign-finance laws to win elections and declared government claims to the contrary to be “absurd.”
Ken Smukler balked when asked whether he ever believed – as prosecutors have contended – that $90,000 he helped funnel to a Brady rival in 2012 was an illegal campaign contribution.
“Never,” he said. “I did not, and nobody who knows campaigns and politics would, either.”
He bristled at government assertions that he broke laws to raise money to reimburse contributions that were spent improperly by Democratic House candidate Marjorie Margolies in 2014.
“Who’s the victim?” he asked. “Who here committed a crime?”
And before his impassioned five hours on the witness stand concluded Tuesday, Smukler teared up in frustration, recalling the day last year FBI agents showed up at his door.
“I really thought that if I didn’t cooperate,” he said, “that they would put me in handcuffs.” …
“If you called the [Federal Elections Commission] and made this argument, they would find it absurd,” he said at one point, referring to the government’s theory of the case. “They would say, ‘What are you talking about?’ ” …
Smukler told jurors it was Brady’s idea to pay $65,000 for the poll Moore commissioned. But he said the transaction was not concocted to circumvent limits on what one campaign could legally donate to another. Smukler insisted it was a legitimate purchase of something valuable to Brady’s campaign…
More important, he insisted, it was entirely legal.
IRS
Wall Street Journal: Another IRS Free-Speech Scandal
By David B. Rivkin and Randal John Meyer
The Internal Revenue Service infamously targeted dissenters during President Obama’s re-election campaign. Now the IRS is at it again. Earlier this year it issued a rule suppressing huge swaths of First Amendment protected speech. The regulation appears designed to hamper the marijuana industry, which is still illegal under federal law although many states have enacted decriminalization measures. But it goes far beyond that.
The innocuously named Revenue Procedure 2018-5 contains a well-hidden provision enabling the Service to withhold tax-exempt status from organizations seeking to improve “business conditions . . . relating to an activity involving controlled substances (within the meaning of Schedule I and II of the Controlled Substances Act) which is prohibited by federal law.” That means that to obtain tax-exempt status under any provision of the Internal Revenue Code’s Section 501-whether as a charity, social-welfare advocacy group or other type of nonprofit-an organization may not advocate for altering the legal regime applicable to any Schedule I or II substance…
The rule does not apply to all speech dealing with the listed substances, only that involving an “improvement” in “business conditions,” such as legalization or deregulation. Efforts to maintain restrictions or impose additional ones are fine by the IRS. This is constitutionally pernicious viewpoint discrimination. As the Supreme Court stated in Rosenberger v. University of Virginia (1995): “When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”
Independent Groups
Politico: Super PACs were biggest spenders in 2018 midterms, report finds
By Maggie Severns
Super PACs aligned with the two major political parties spent more in the 2018 midterms than the parties’ congressional committees did, the first time that’s happened in a midterm election cycle…
During other midterm elections, party committees like the Democratic Congressional Campaign Committee and the National Republican Congressional Committee have been the biggest spenders. But in 2018, preliminary totals indicate the three biggest spenders in the election were all super PACs, the Campaign Legal Center’s review found…
“At the same time that more money was becoming concentrated in a handful of politically connected super PACs, those same super PACs were finding new ways to disguise their spending,” the report said.
Chief among those tactics, it said, were an increased tendency among super PACs to delay naming their donors and a habit among some groups of obscuring their identities while placing political ads on the internet, which is possible due to gaps in disclosure rules.
Politico and ProPublica in October identified more than 60 super PACs that had spent money in primaries or general elections but delayed disclosing their donors until after voters went to the polls. That practice sharply increased in 2018: During the 2016 elections, super PACs spent $9 million during congressional primary elections that they delayed disclosing until after voting finished. In 2018, that total increased to more than $15 million.
The trend continued during the final days of the election, the Campaign Legal Center found. The group identified 17 super PACs that spent more than $29 million that had not yet reported any contributors or had spent dramatically more than they’d reported raising.
Online Speech Platforms
Wall Street Journal: Facebook Exempts News From Political Ad Archive
By Benjamin Mullin
Facebook Inc. will exempt paid posts promoting news articles from its political ad archive, ending a practice that rankled publishers who chafed at seeing their journalism classified as if it were paid partisan advocacy, the company said Thursday.
Rob Leathern, Facebook’s director of product management, said in a post that the decision to classify ads promoting news articles in Facebook’s political ad archive was “problematic for a number of news organizations,” adding that the new policy is aimed at supporting journalism.
“We’ll also continue working with publishers, platforms and fact-checkers to increase safeguards and transparency in this area, which should lead to greater accountability for both Facebook and our advertisers,” Mr. Leathern said.
Earlier this year, Facebook announced that it would begin storing and displaying political ads in an public archive, one of a series of steps aimed at increasing transparency in the wake of alleged Russian election interference on its platform. Paid posts promoting news articles mentioning political figures and electoral issues were lumped in with political ads, a decision that drew pushback from news organizations.
The Verge: Republicans keep misunderstanding the law that protects internet platforms
By Nilay Patel
Why do Republicans make fools of themselves by misreading Section 230 of the Communications Decency Act? It’s not a hard law to read, but conservatives constantly use it to threaten platforms with legal action over moderation decisions that 230 explicitly protects. Earlier this year it was Ted Cruz (a product of Harvard Law School!) getting 230 completely wrong while questioning Mark Zuckerberg. And today we have Republican Senator-elect Josh Hawley from Missouri tweeting this nonsense…
[T]he only reason Section 230 exists is to give platforms the ability to moderate free of liability. The law was implemented in response to Stratton Oakmont v. Prodigy, a 1995 case where the investment firm now immortalized in the film The Wolf of Wall Street sued Prodigy over message board posts it claimed were defamatory. The court found that since Prodigy moderated its message boards, it exerted the same editorial control as a publisher, and was thus liable for what was published.
Holding Prodigy liable for every post on its message boards was, of course, insane, and Congress responded by including 230(c)(2) in the Communications Decency Act, which says “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” …
Lately there’s been a bipartisan chatter around creating carve-outs to Section 230 that create liability for platforms on both sides of the aisle – the controversial FOSTA-SESTA bill most recently made platforms liable for posts that assist in sex trafficking. And Senator Ron Wyden, who wrote Section 230, told The Verge’s Colin Lecher in July that he’s open to more 230 carve-outs if the platforms don’t get their act together with moderation.
The States
City & State New York: Democracy vouchers: a better campaign finance reform
By Ross Barkan
Because the city is doling out public money, the New York City Campaign Finance Board maintains stringent oversight of participating campaigns – the exact counter-image to the state’s lax Board of Elections. The problem, though, is the CFB has evolved into an unusually punitive body, regularly doling out devastating fines while creating barriers to entry for first-time candidates.
This is the irony of running for office in New York City: While the matching funds encourage people who are not wealthy or politically connected to run, any campaign must immediately hire a highly experienced treasurer or accountant to wrangle with reams of potential violations that, years later, can saddle a candidate with tens of thousands of dollars in debt…
At the same time, matching funds are occasionally abused or handed out to campaigns that don’t need them – or maybe never deserved them in the first place. New Yorkers may be unhappy to learn that their taxpayer dollars went to support stunt New York City Council campaigns of the blatantly anti-Semitic Thomas Lopez-Pierre and the Donald Trump-supporting, climate change-denying Republican Bob Capano, who received nearly $89,000 in public money to net 579 votes.
Letitia James, running in a noncompetitive re-election campaign for public advocate last year, made a mockery of the system when she received more than $750,000 in public matching funds to defeat a little-known, underfunded Republican opponent. James spent a half million in a single day, funneling the public cash to one powerful consultant, Global Strategies Group.
