In the News
Washington Examiner: Changing the campaign refs is the wrong call for democracy
By Bradley A. Smith and Scott Blackburn
Sports fans love to hate the referees. Seen through the rose-colored glasses of fandom, the refs always make terrible calls, miss obvious fouls, and purposefully slant outcomes against your team.
So, too, in politics. The federal agency formed to referee the hard-nosed, red team-blue team battle of national politics is the Federal Election Commission. Like refs in sports, nearly everyone thinks they stink at their job.
But for all the agency’s faults, it does have one crucial strength: It is bipartisan. The commission has six commissioners, with no more than three from any one political party. Any action at the commission requires four votes, so whenever the FEC opens an investigation or levies a fine against a campaign, the decision must be supported by at least one Democrat and one Republican…
The FEC has not seen partisan scandals like the IRS and other federal agencies. Democrats do not claim that Trump’s FEC is trying to silence them, nor did Republicans claim that Obama’s FEC targeted their campaigns for fines and restrictions. In fact, most FEC enforcement occurs without any public awareness whatsoever – it is mundane and uncontroversial, as it should be.
Unfortunately, the first bill proposed in the 2019 Congress will destroy the FEC’s bipartisanship.
Deep in H.R. 1 (page 456 of 570), the Democrats’ top bill of the session, is a plan to change the FEC from its current six-member structure to a five-member agency. Two Democrats and two Republicans would be joined by a new “independent” commissioner, meaning the tie-breaking vote on any regulation would always effectively be cast by whichever president appoints the “independent.”
This is the political equivalent of “fixing” sports refereeing by allowing the home team to hire an extra ref to make the final decision on every call.
National Review: The Democrats’ Election-Reform Bill Is an Unconstitutional, Authoritarian Power Grab
By The Editors
The free-speech problems are so obvious that free-speech organizations on the left and right are united in opposition. Comprehensive analyses from the Institute for Free Speech and the American Civil Liberties Union are worth reading in their entirety and raise remarkably similar concerns.
At a time of extraordinary public harassment, boycotts, intimidating public shame campaigns, the act would expand financial-disclosure requirements, including in some circumstances requiring public disclosure of the names and addresses even of donors who did not know about or perhaps even support the political message of the organization they funded. Donors may give money, for example, to fund one aspect of an organization’s mission only to be involuntarily exposed as a “political donor” when the organization chooses – without the donor’s knowledge or consent – to mention a politician by name in a different context. As the ACLU points out, “it is unfair to hold donors responsible for every communication in which an organization engages.”
Moreover, in the effort to further limit “coordination” between candidates and political action committees, the bill sets forth language so broad that, as the ACLU explains, it affects communications that “merely refer to a candidate or an opponent to a candidate 120 days before an election or 60 days before a primary or a caucus.” The Institute for Free Speech’s Bradley Smith argues that, with such language, “the goal seems to be to limit discussion of candidates to the candidates and parties themselves, at the expense of the public at large.”
Compounding the problems, the bill revamps the Federal Election Commission, making practical partisan control a near-certainty. While no more than two members of one party could be appointed to the new, five-person commission, it would be easy to achieve ideological control by appointing a like-minded “independent” to break the logjam.
Star Tribune: Editorial counterpoint: Could campaign disclosure laws be a threat to democracy? Absolutely.
By Bradley A. Smith and Annette Meeks
The Star Tribune Editorial Board has called for the Legislature to expand campaign disclosure laws to apply to any group that runs ads mentioning candidates (“Add more transparency on campaign ads,” Jan. 9). This policy would cover a whole lot more than campaign ads, and it would carry nasty side effects.
Some at the State Capitol are responding to this misguided request for so-called transparency through legislation. But make no mistake about it: Transparency is for government; privacy is for citizens.
If an environmental group asked Minnesotans to contact their representatives about a bill to fight climate change, that would be covered. If a government watchdog called on legislators to hold a corrupt bureaucrat accountable, that would be, too.
These groups aren’t trying to sway an election. They just recognize that government doesn’t shut down when candidates hit the campaign trail. Elected representatives shouldn’t be protected from mere mention – let alone criticism – just because their names are on the ballot.
Advocates of expanded disclosure say the groups are still free to speak. Well, sort of. The price of speaking will rise so high that many citizens and organizations will decide they can’t afford it. That’s not a win for voter engagement. It just means PACs, politicians and the already powerful will dominate the public square.
The “price” of speaking – of having the audacity to name a candidate while discussing a policy issue – would be the exposure of a group’s supporters. The state would construct a database of donors to every such group, including the donor’s name, home address and giving history.
Cato: House Passes Political-Omnibus Bill H.R. 1
By Walter Olson
H.R. 1, the political regulation omnibus bill, contains “provisions that unconstitutionally infringe the freedoms of speech and association,” and which “will have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day.” Don’t just take my word for it; that’s the view of the American Civil Liberties Union, expressed in this March 1 letter (more). For example, the bill would apply speech-chilling new restrictions to issue ads by cause organizations, should they happen to mention individual lawmakers.
The House of Representatives nonetheless voted Friday along party lines to pass the bill, which was sponsored by Rep. John Sarbanes (D-MD). For now, it has no prospect of passage in the Senate.
The issues raised in the ACLU letter aside, H.R. 1 contains many other provisions that likely are unconstitutional, unwise, or both. Colleagues Ilya Shapiro and Nathan Harvey enumerate some of them (“If ever adopted, [HR1] would give power to one slice of Washington’s elite at the expense of American democracy’s carefully crafted checks and balances”). More criticism: Brad Smith on the bill’s restrictions on discussion and coordination of expenditures on speech; David A. French (“At its essence, the bill federalizes control over elections to an unprecedented scale, expands government power over political speech, mandates increased disclosures of private citizens’ personal information (down to name and address), places conditions on citizen contact with legislators that inhibits citizens’ freedom of expression, and then places enforcement of most of these measures in the hands of a revamped Federal Election Commission that is far more responsive to presidential influence.”) …
[adapted from Overlawyered]
ICYMI
Statement in Response to House Vote on H.R. 1
The Institute for Free Speech released the following statement in response to today’s vote in the U.S. House of Representatives to pass H.R. 1, which the Institute has dubbed the “For the Politicians Act”:
“The House majority approved what is effectively an omnibus bill for violating free speech. H.R. 1 would fund candidate political ads with tax dollars, silence advocacy groups and nonprofits, restrict political speech on the Internet, and grant control of the Federal Election Commission to a speech czar chosen by the president. The bill’s provisions range from unconstitutional, to unworkable, to just plain incomprehensible,” said Institute for Free Speech Chairman Bradley A. Smith.
“The bill subsidizes the speech of politicians and limits speech by Americans. That’s bad for the First Amendment and bad for our democracy,” said IFS President David Keating. “We commend Senate Majority Leader Mitch McConnell for his work to inform his colleagues about the threat to free speech from H.R. 1.”
For all of the Institute for Free Speech’s resources, analysis, and commentary on H.R. 1, click here.
H.R. 1
Vox: House Democrats just passed a slate of significant reforms to get money out of politics
By Ella Nilsen
“HR 1 restores the people’s faith that government works for the public interest, the people’s interest, not the special interest,” said House Speaker Nancy Pelosi…
“It is a fight we will not end until we win it,” Pelosi said, adding, “we can save a lot of time by the Senate just agreeing to a vote.” …
Under the vision of the bill’s main sponsor, Rep. John Sarbanes (D-MD), the federal government would provide a voluntary 6-1 match for candidates for president and Congress, which means for every dollar a candidate raises from small donations, the federal government would match it six times over. The maximum small donation that could be matched would be capped at $200. The most substantial change to HR 1 is this program now won’t be funded by taxpayer dollars as originally planned; instead, it will come from adding a 2.75 percent fee on criminal and civil fines, fees, penalties, or settlements with banks and corporations that commit corporate malfeasance (think Wells Fargo). Democrats are using this idea to push back on Republican attacks that taxpayers shouldn’t be subsidizing campaigns.
“You’re saying look, these big industries that lean on our democracy and are also breaking the law – it’s very appropriate to take a tiny little piece, put it into a fund and say, ‘That’s how we’ll give more power back to everyday Americans,'” Sarbanes told Vox. “We’ve got some big corporations out there who are probably going to keep getting in trouble and having to settle cases, so I think it will be an ongoing and sustainable source.” …
The Trump administration and Senate Republicans had made their opposition to HR 1 known well before it was passed. McConnell has attacked the bill in op-eds and floor speeches, and the Trump administration issued an intent to veto the bill on Tuesday.
The White House’s statement characterized HR 1 as federal overreach that would “micromanage elections” and “chill free speech.”
Washington Post: Would ‘every small dollar donated’ be matched 6 to 1 under the House Democratic plan?
By Glenn Kessler
Daniel Jacobs, a spokesman for Sarbanes, said there was no estimate for how much money this provision would raise. The Congressional Budget Office did not score the provision because the new tax on financial penalties was inserted as a manager’s amendment during Rules Committee markup, after the CBO report was completed. When the CBO examined the bill, the funding supposedly was going to be determined through future legislation.
“Expenditures for those programs would be limited to amounts designated in the proposed Freedom From Influence Fund,” the CBO wrote. “The bill would provide no source of funds for the Freedom From Influence Fund; without funding, those programs would not be implemented and thus those provisions would have no cost.”
“Fines will not be close enough to cover the 600 percent match rate,” said Erin Perrine, spokeswoman for McCarthy. “Since there will be an anticipated funding gap, the remaining funds for campaigns would come from general funds (also known as taxpayer dollars).”
The bill, however, explicitly says payments will be reduced if there is insufficient money in the fund and no money can be used from other sources: “In any case in which the Commission determines that there are insufficient moneys in the Fund to make payments to participating candidates under this title, moneys shall not be made available from any other source for the purpose of making such payments.”
Parella said Davis’s op-ed for the Hill was written before the Rules Committee markup. She said the money still would be “public funds.”
In any case, if the bill became law, a future Congress can always change how the program is funded. The current arrangement – essentially a tax on people and corporations caught in malfeasance – appears designed to avoid having the money being tagged as coming from taxpayer dollars…
Democrats waited until after the CBO score to come up with the funding mechanism. That’s often a suspicious sign.
Roll Call: DCCC wastes no time launching positive ads on HR 1 passage
By Simone Pathé
Immediately after the House passed Democrats’ political money, ethics and voting overhaul on a straight party-line vote, the Democratic Congressional Campaign Committee launched digital ads praising the legislation in 44 districts where its incumbents may be facing tough re-elections…
The targeted ads, which feature a picture of an orange bar of soap labeled “H.R. 1,” will run on Facebook and Instagram.
One ad targeted to Illinois Rep. Lauren Underwood says that her vote for HR 1 “proves that she’ll deliver results for our community and clean up the amount of money in our elections.” …
End Citizens United, which has championed candidates who rejected corporate PAC money, also released digital ads on Friday after the vote. Before last fall’s elections, ECU organized a letter pushing for an overhaul like HR 1 to be one of the first pieces of legislation on the agenda in the new Congress.
FEC
Mother Jones: Election Watchdog Hits Jeb Bush’s Super-PAC With Massive Fine for Taking Money From Foreign Nationals
By Nihal Krishan
The Federal Election Commission has hit Right to Rise USA, the super-PAC that backed Jeb Bush’s 2016 presidential bid, with a record fine for accepting a seven-figure donation from a company owned by Chinese nationals who were in business with Bush’s brother, Neil, according to FEC documents obtained by Mother Jones. It is illegal for foreign nationals to be involved in making donations to political committees.
Neil Bush, who has extensive business dealings in China, solicited the $1.3 million contribution from American Pacific International Capital (APIC), an international investment holding company where Neil is a board member. Although the contribution to Jeb’s super-PAC came from the American arm of APIC, the company’s owners are Chinese, and Neil Bush initially solicited the money from two Chinese nationals-Gordon Tang, the chair of APIC, and Huaidan Chen, a board member. The FEC has fined APIC $550,000 and Right to Rise $390,000.
The total combined fine against Bush’s super-PAC and APIC, which has not previously been reported, is $940,000, the largest amount levied in a single case against anyone since the 2010 Citizens United ruling. The penalty is also the biggest fine that the FEC has ever handed down due to foreign national participation. “This is a big, big fine, one of the biggest fines in FEC history,” says Brendan Fischer from the Campaign Legal Center, a nonpartisan watchdog.
The FEC began investigating the APIC donations after CLC filed a complaint with the commission.
Free Speech
National Review: Trump’s Campus Free-Speech Order and Our Cold Civil War
By Stanley Kurtz
In principle, I strongly support President Trump’s plan to issue an executive order to protect freedom of speech on campus. Yes, there are many potential problems with federal intervention, but there is really no good alternative.
I don’t know what will become of our ever more bitterly divided nation, but I do know there’ll be no peaceful coexistence for our warring camps without a cooling of the campus free-speech crisis. It’s no use looking to universities for a resolution. They are caught in a quicksand of their own creation and are well past the point of self-extraction. This isn’t just a university problem either. The extremism of our politics; its historical naïveté; the bitter mutual recriminations that dog our every debate; the country’s rising divisions along lines of religion, ethnicity, sex, and race; and the endangered liberties even of Americans well past college age; are all outcomes of the noxious spirits the academy has been injecting into the body politic for nearly six decades.
There are certainly good reasons to be wary of federal intervention in matters of local concern. We would much prefer our campuses to heal themselves. Yet it is foolish and blinkered at this point to believe that they will. That does not remove the dangers of ham-handed, biased, or counter-productive federal action. Yet it is equally mistaken to treat campus free speech as just another case in which unfettered markets will flourish in the absence of outside interference. The campus is the opposite of a free market. It’s protected from market forces by tenure, and further insulated from public dismay – and bursting economic bubbles – by hundreds of billions of dollars in annual government subsidies.
Wall Street Journal: Get Ready for the Struggle Session
By Peggy Noonan
The Chinese Cultural Revolution was a bitter thing, a catastrophe comparable in its societal effects, and similar in its historical feel, to the terrors of Stalin and the French Revolution… But what I find myself thinking of these days is the ritual humiliations, the “struggle sessions.” …
Mao unleashed university and high school students to weed out enemies and hold them to account…
In the struggle sessions the accused, often teachers suspected of lacking proletarian feeling, were paraded through streets and campuses, sometimes stadiums…
So I ask you to entertain an idea that has been on my mind. I don’t want to be overdramatic, but the spirit of the struggle session has returned and is here, in part because of the internet, in part because of the extremity of our politics, in part because more people are lonely. “Contention is better than loneliness,” as my people, the Irish, say, and they would know.
The air is full of accusation and humiliation. We have seen this spirit most famously on the campuses, where students protest harshly, sometimes violently, views they wish to suppress. Social media is full of swarming political and ideological mobs. In an interesting departure from democratic tradition, they don’t try to win the other side over. They only condemn and attempt to silence.
The spirit of the struggle session is all over Twitter. On literary Twitter social-justice warriors get advance copies of new books and denounce them for deviationism-as insensitive, racist, appropriative, anti-LGBTQ. Books on the eve of publication have been pulled, sometimes withdrawn by authors who apologize profusely. Everyone’s scared. And the tormentors are not satisfied by an apology. They’re excited by it and prowl for more prey.
The States
Gotham Gazette: Speaker Says Assembly No Longer Supports Public Campaign Financing, Downplays Other Reforms
By Samar Khurshid and Ben Max
On Friday, Assembly Speaker Carl Heastie said that the votes are not there in his chamber to approve a public-matching campaign finance system, despite the fact that the Assembly has repeatedly passed such a measure in the past when Republicans controlled the Senate.
Heastie appeared at a Crain’s New York Business forum at the New York Athletic Club, where he gave remarks about the Assembly’s accomplishments and priorities, then took questions from Erik Engquist of Crain’s and Errol Louis of NY1, before also speaking with other reporters after the event.
With a new state budget due April 1, Heastie said it appeared unlikely that the Assembly would approve public campaign financing before or within that deal, though it is a long-held Democratic goal espoused not only by Assembly Democrats but also the new state Senate Democratic majority and Governor Andrew Cuomo.
“I think the members want to discuss it but I’d say right now what the concerns are on IEs [independent expenditures], problems with [New York City’s] campaign finance system, also with a shortage of [state] money, I think they want to have the discussion but I’d say right now there’s not 76 members who want to move forward with it in the next three weeks in the budget,” Heastie said in response to a question from Gotham Gazette, and referring to the minimum number of votes needed to advance a bill in the 150-seat chamber…
Heastie also threw cold water on a state Senate-approved bill to limit campaign contributions from entities seeking state contracts and downplayed the need for additional government ethics reforms, saying that law enforcement entities catch bad actors and he is “still waiting for the idea of the bill that will really fix people’s morality.”
Idaho Press: Sen. Lodge introduces new version of sunshine bill on electioneering
By Savannah Cardon
To alleviate some of the concerns raised by nonprofits, the Senate State Affairs Committee on Friday introduced a new version of the bill to broaden campaign finance reporting requirements, which shortens the reporting window and cleans up the language.
The bill will replace S1114, sponsored by Sen. Patti Anne Lodge, R-Huston. The proposal still includes new rules for electioneering communications, lengthens the reporting time, and sets a standard for donors who must be reported based on the amount given. It’s one of two bills set out to increase transparency in Idaho’s campaign finance laws.
Lodge said she thought the changes were “too big of corrections” to simply amend the prior proposal.
“We had some suggestions, so we decided to go through and make those corrections,” Lodge said.
Changes were made to the definition of electioneering communication – one of the topics that sparked significant debate a few weeks ago. The new bill shortens the reporting window by a bit.
Idaho Press: Representatives seek changes on campaign finance reform bill
By Savannah Cardon
Legislation to reform Idaho’s campaign finance reporting laws is headed to the House for amendments amid concerns with the bill’s language.
Following Thursday’s hearing and brief discussion Friday morning, the committee decided to send S1113, the campaign finance reform bill to create a central online database for reporting disclosure, to the House’s amending order for changes…
Rep. Vito Barbieri, R-Dalton Gardens, spoke in opposition of the bill as it stands, expressing that existing statute already includes transparency. He also had some concerns over the frequent reporting.
“It just seems like we’re adding more and more burdens on the citizen Legislature as we try to work our way through,” Barbieri said. “I’m just not in favor of that.”
Rep. Julianne Young, R-Blackfoot, said Thursday she was concerned with the bill’s language defining a “political committee.” Come Friday, she still had hesitations and worries that the definition could be broad enough to apply to a group of private citizens.
“I do not want grandma Jones down the street that gets involved with my campaign and spends hours helping me put up signs and make cookies to have to report under this legislation,” Young said. “I’m concerned about that, and I want to see some changes in it before I can support that.”
Albuquerque Journal: Supreme Court denies campaign finance challenge
By Dan McKay
The state Supreme Court on Friday rejected a petition filed by four Republican lawmakers seeking to block enforcement of 2017 campaign finance rules that require more disclosure of political spending by independent groups.
The petition, filed in December, had accused Secretary of State Maggie Toulouse Oliver of overstepping her authority when she imposed the new disclosure requirements, after a series of public hearings
She put the rules in place after then-Gov. Susana Martinez had vetoed legislation that included similar disclosure requirements.
New Mexico’s five Supreme Court justice issued an order denying the legal challenge Friday. It had been filed by Sen. William Sharer of Farmington, Sen. Mark Moores of Albuquerque, Rep. James Strickler of Farmington and Rep. David Gallegos of Eunice, all Republicans.
Albuquerque Journal: House passes campaign disclosure bill
By Dan McKay
A proposal aimed at strengthening New Mexico’s disclosure requirements for political spending by “dark-money” groups is almost ready to go to the governor.
The legislation, Senate Bill 3, passed the House on a 48-17 vote late Saturday. It has already been approved by the Senate, but the House made minor changes – meaning the bill must go back to the Senate one more time…
It’s intended to shine more light on spending by “dark-money” groups, such as nonprofit groups and unions.
The legislation is sponsored by Senate Majority Leader Peter Wirth, D-Santa Fe. It builds on disclosure rules that were imposed in 2017 by Secretary of State Maggie Toulouse Oliver.
