In the News
Election Law Blog: AOC Wrongly Relies on Brad Smith’s Article to Make the Opposite Point to the One He Was Making
By Rick Hasen
Brad Smith fairly criticizes AOC’s use of his hush money article in the WSJ in her now viral video about campaign money and Washington. I don’t think this undermines many of the points AOC made in her discussion of the money system in Washington-I agree with much of it. But she really mangled the point of Brad’s WSJ piece (more about which I’ve written here.) Brad’s argument was that hush money payments could NOT be paid with campaign expenses (and therefore Trump could not have violated the law by failing to report the payments as campaign expenditures). AOC said Brad had said it was not illegal to use campaign funds for hush money expenditures.
Event
Cato: Who’s Afraid of Big Tech?
Date: March 1, 2019
Time: 8:00AM to 3:50PM EST
Since the 2016 presidential election, the debate over the social role and power of America’s tech giants has intensified. Companies such as Facebook, Twitter, Amazon, and Google have found themselves on the receiving end of an array of complaints and regulatory proposals.
News of foreign interference in elections and allegations of mismanagement have prompted lawmakers to take action. Executives from the largest and most popular technology companies have been called before congressional committees and accused of being bad stewards of their users’ privacy, failing to properly police their platforms, and engaging in politically motivated censorship. At the same time, companies such as Google and Amazon have been criticized for engaging in monopolistic practices.
Are such criticisms and complaints legitimate? If so, how should regulators respond? The Cato Institute’s upcoming conference, “Who’s Afraid of Big Tech?” will feature policy and industry experts tackling these and other timely questions. We hope that you will join us.
Schedule:
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1:20 – 1:35PM
FLASH TALK: ONLINE AD REGULATION: NECESSARY OR A DANGER TO FREE SPEECH?
Allen Dickerson, Legal Director of the Institute for Free Speech
Congress
Wall Street Journal: No Friend-of-the-Court Senator
By Editorial Board
This is a familiar stand for Mr. Whitehouse, who has long tried to silence his political opponents. He gets double discredit in this case for threatening a separate-but-equal branch of government over its business. Mr. Whitehouse charges in his letter that the Court’s failure to adopt his demands means “a legislative solution may be in order”-namely, his bill requiring “disclosure of contributions over a certain threshold” to groups that file amicus briefs.
As the Senator knows, the Supreme Court has a rule-37.6-that governs amicus filings. It requires that amicus briefs “indicate whether counsel for a party” involved in the litigation “authored” or “made a monetary contribution” to the preparation of the brief. In this spirit it further requires disclosure of “every person other than the amicus curiae, its members, or its counsel, who made such a monetary contribution.”
The Court adopted the rule in 1997 to deter the central parties in a case from secretly buying amicus briefs that support their position…
Mr. Whitehouse wants to go much further and force amicus filers to disclose all of their donors. His disclosure demands would target everyone from the U.S. Chamber and Cato Institute, to the ACLU and Brennan Center, all of which depend on outside donations for their overall operations. The groups decide how to spend those donations, whether for education programs or filing amicus briefs. The groups aren’t required by law to disclose their funders, and Mr. Whitehouse offers no evidence that they are secretly filing briefs on behalf of specific donors or parties to litigation…
The Justices should ignore his threats and find a case to hear in which they can apply the First Amendment to better protect political donors from disclosure and the harassment by Rhode Island Senators.
Wall Street Journal: Sen. Sheldon Whitehouse Discloses Contributors, USCC Should, Too
By Sen. Sheldon Whitehouse (D., R.I.)
Regarding your editorial “No Friend-of-the-Court Senator” (Feb. 25): Justice Antonin Scalia wrote around the time of the 2010 Citizens United decision that disclosure is a necessary check on those seeking to influence government; without it, we aren’t the “home of the brave.” I am glad the Journal editorial board agrees with this principle when it comes to elected officials like me. I happily disclose my contributions. However, it is regrettable you abandon this principle when it comes to dark-money groups, whose amicus briefs have helped to trigger a cascade of 5-4 partisan decisions benefiting corporate-donor interests over the public at large.
If the U.S. Chamber of Commerce and other anonymously funded groups that seek to influence the Supreme Court had to disclose their funders as I do, we could know who the real party in interest is behind these filings. We need more transparency so the public, the parties and the Justices can identify bias and conflicts of interest. These special interests are not required to and will not voluntarily disclose their contributions, because secrecy is one of their weapons. If any of the Justices are struggling to find my campaign contribution records, I would be happy to share the appropriate website. No such website exists for the U.S. Chamber or other dark-money groups.
By Ronald K. L. Collins
Congressman Jamie Raskin (D-MD) has introduced a bill (H.R. 936) to limit the reach of the Supreme Court’s ruling in Citizens United v. Federal Election Commission (2010). As reported by Josh Kurtz in Maryland Matters, the bill would:
[P]revent corporate expenditures for political campaigns unless the corporation has established a process for determining the political will of its majority shareholders. If a corporation has no such process or is unable to assess the “majority will” of shareholders because the majority of shares are owned by entities that are prohibited from registering a political preference – such as governments, pension and mutual funds, universities, charities, or foundations – then the corporation will be prohibited from using its resources on political campaigns. . . .
The Shareholders United Act has nine cosponsors: Reps. Harley Rouda (D-Calif.), Hank Johnson (D-Ga.), Salud Carbajal (D-Calif.), Eleanor Holmes Norton (D-D.C.), Jan Schakowsky (D-Ill.), Darren Soto (D-Fla.), Earl Blumenauer (D-Ore.), Mark Pocan (D-Wis.), and Gil Cisneros (D-Calif.). The legislation has also earned the support of good government groups such as People for the American Way and End Citizens United.
Candidates and Campaigns
CNN: Elizabeth Warren’s new promise: No fundraisers, phone calls with wealthy donors
By MJ Lee
Warren’s bid for the White House has been defined since its start by themes of fighting corruption and money in politics. The Massachusetts Democrat took that to the next level on Monday, blasting out an email to supporters vowing to forgo any “fancy receptions or big money fundraisers only with people who can write big checks,” as well as phone calls to wealthy donors.
“For every time you see a presidential candidate talking with voters at a town hall, rally, or local diner, those same candidates are spending three or four or five times as long with wealthy donors — on the phone, or in conference rooms at hedge fund offices, or at fancy receptions and intimate dinners — all behind closed doors,” Warren wrote. “When I thank the people giving to my campaign, it will not be based on the size of their donation.”
Warren’s announcement Monday is an implicit challenge to — and perhaps even criticism of — some of her competitors in the Democratic field who have courted big-dollar donors and bundlers…
Warren has already disavowed accepting any PAC money and donations from federal lobbyists and has pressured others Democratic candidates to do the same.
A fundraising email last week said Warren is “not taking any contributions from PACs or federal lobbyists, and she’s not spending her time cozying up to wealthy donors who can write big checks,” and added for emphasis: “You can’t say that about all the other candidates in this race.”
New York Times: Bernie Sanders Raises $10 Million in Less Than a Week
By Shane Goldmacher
There is little surprise that Mr. Sanders, whose 2016 Democratic primary run was powered by $230 million in grass-roots giving, would post big fund-raising numbers if he ran again. But the size of his advantage – he raised $5.9 million in his first day as a candidate, nearly 20 times what Senator Elizabeth Warren did in her first day and nearly four times more than Senator Kamala Harris’s $1.5 million – has established him as a financial front-runner in a crowded Democratic field…
Of Mr. Sanders’s wave of day one donations, only 17 people gave him the maximum allowable amount of $2,800, meaning he can ask more than 99.99 percent of his donors to give again. As of late Monday, only 20 donors have given Mr. Sanders the legal maximum; another 46 gave $2,700, the limit in the last campaign.
More than 48,000 donors have already agreed to give to Mr. Sanders over and over, signing up for recurring donations to be drawn from their credit cards worth a combined more than $1 million each month, according to statistics provided to The New York Times by the campaign. The average overall contribution was just under $26…
Money alone is not determinative in presidential politics. In the 2016 Republican primary, a super PAC supporting Jeb Bush burned through $100 million as Mr. Bush finished no better than fourth in any of the first three states…
An internal analysis showed more than 108,000 of Mr. Sanders’s first day contributors were 39 years old or younger, and they gave a combined $2.5 million of the $5.9 million raised. The most common age for a Sanders contributor was 30. Relatedly, more than $3 million of the donations that first day came from mobile devices, a sign of both shifting habits and the relative youth of his donor base. The campaign did not provide a breakdown by gender.
The States
U.S. News & World Report: Bill to Increase Idaho Election Finance Transparency Fails
By Keith Ridler, AP
[A] diverse array of nonprofit groups on Friday complained [the legislation] would force them to reveal donors who wished to remain anonymous.
The Senate State Affairs Committee voted 6-0 to hold onto the bill for possible amendments after Republican Sen. Patti Anne Lodge made the request not long after arguing in favor of the bill she sponsored…
The groups said they were mainly concerned about a portion of the bill dealing with “electioneering communication,” which the bill defined as any paid communication to voters and involving a candidate or ballot measure…
“Idahoans should be allowed to support specific groups or positions without fear of harassment or retaliation from people who may disagree with them,” Kerry Uhlenkott of Right to Life of Idaho told the committee…
Amy Little, president of the Idaho Nonprofit Center that represents about 5,500 charitable nonprofit groups, also spoke against the measure…
Kathy Griesmyer of the ACLU of Idaho also spoke against the legislation, noting in the particular how it expanded electioneering communication from March to November during a general election year.
“You’re certainly sweeping in legislative related timeframes, which could potentially censor or impact how a nonprofit organization decides to communicate, not only to its members but to the larger public about a purely policy related issue that it’s engaging in,” she said.
Fred Birnbaum of the Idaho Freedom Foundation said the legislation had what he called a low donor threshold of $250, and questioned why the legislation would be written to include all donors to a group even though not all of the donations involved election-related communications.
Associated Press: NJ weighs requiring donor disclosure for independent groups
By Mike Catalini
Donors who fork over at least five figures to independent spending groups in anonymity could be disclosed publicly under new legislation moving in New Jersey’s Legislature.
The Democratic-led Senate unanimously passed a measure overhauling the state’s disclosure requirements last week, sending the bill to the Assembly, where Democrats are also in charge.
The bill has been around since at least 2016 but made it onto lawmakers’ radar after one group that supports Democratic Gov. Phil Murphy’s agenda backtracked on a promise to disclose its donors.
Murphy has said he favors disclosure but stopped short of backing the legislation moving through the Legislature.
It’s unclear whether the Assembly will take the bill up…
Assembly Speaker Craig Coughlin is meeting with stakeholders and discussing the bill with his caucus, according to spokeswoman Liza Acevedo. Murphy has said he wants to see legislation to require disclosure but hasn’t weighed in on this particular legislation…
[D]uring a hearing on the legislation, groups like the American Civil Liberties Union raised concerns about the effect on donations if donor identities are disclosed.
St. Louis Post-Dispatch: Democrat wants to depose Greitens over former governor’s dark money mysteries
By Jack Suntrup
A Democrat running for Missouri attorney general is seeking to depose former Gov. Eric Greitens as part of his probe into possible nefarious dealings between the former chief executive and campaign donors.
The Cole County Circuit Court issued the subpoena Thursday at Elad Gross’ request. Gross sued Greitens’ nonprofit, A New Missouri, last year, seeking internal financial information, but a Cole County judge later doused the request…
Gross asks Greitens, a Republican, to bring any and all “communications, recordings, calendars, notes, and/or other documents involving you, campaign donors, state employees, consultants, and/or others and the use of dark money, anonymous campaign donations, plans or processes to conceal public records, and/or nonprofit organizations for political purposes.” …
Gross also subpoenaed U.S. Sen. Josh Hawley, a Republican, last week in regard to how Hawley’s office handled an open records complaint Gross filed with the attorney general’s office last year, while Hawley was still attorney general.
Washington Post: An Arizona cop threatened to arrest a 12-year-old journalist. She wasn’t backing down.
By Antonia Noori Farzan
[Hilde Kate Lysiak] wrote that she was riding her bike to investigate a tip at around 1:30 p.m. on Monday when Patterson, whose position in the small town is equivalent to that of a police chief, stopped her and asked for identification. The 12-year-old gave her name and phone number and mentioned that she was a member of the media. She said Patterson told her, “I don’t want to hear about any of that freedom-of-the-press stuff” and added that he would have her arrested…
Later, Lysiak ran into Patterson again. This time, she was filming.
“You stopped me earlier and you said that I can be thrown in juvie,” she can be heard asking in the video. “What exactly am I doing that’s illegal?”
From the seat of his white Chevy Silverado truck, Patterson started to reply, then interrupted himself. “You taping me?” he asked. “You can tape me, okay, but what I’m going to tell you is if you put my face on the Internet, it’s against the law in Arizona.” …
A notice posted on the town of Patagonia’s website on Wednesday said that officials had received “many comments” about Patterson’s confrontation with Lysiak. “The matter has been carefully reviewed and we have taken action we believe to be appropriate for the situation,” the statement said…
The bulletin further suggested that “relevant information” could be found in an Arizona statute that bars people from posting personal information belonging to police officers, prosecutors, judges and other officials online – if doing so could put them and their families at risk. It did not specify why that law would be relevant, or whether Lysiak had been accused of breaking it.
In an email to The Washington Post, Dan Barr, an attorney with the First Amendment Coalition of Arizona, called the town’s reference to that statute “pure nonsense.” The law deals with publicizing information such as home addresses and “has nothing to do with taking photos of uniformed police officers doing their jobs in public,” he wrote.
