In the News
Fortune: Democrats Keep Rejecting Corporate PAC Money. But Is It Just for Show?
By Natasha Bach
Michael Williams, founder of the public policy and communications consulting firm The Williams Group, calls it a “sick irony” that candidates will turn away lobbyist or corporate PAC money, while continuing to accept money from executives at the same companies…
Williams says doing so only perpetuates the myth that money influences policy. If a candidate is completely opposed to an industry, he says, those corporations won’t give them money because they don’t expect money to change a candidate’s position.
“I don’t know anyone who was a ‘no’ on something until they got a contribution and then became a ‘yes,'” he says…
Brad Smith, a former FEC commissioner and the current chairman of the Institute for Free Speech, a nonprofit that advocates for loosening campaign-finance regulations, calls swearing off corporate PAC money “not meaningless, but a calculation,” and says the advantage of doing so could outweigh the loss of PAC money.
“It might even get them a net increase in contributions if it persuades more individuals to give,” Smith tells Fortune.
While not all of the Democratic candidates are aligned in this respect, many of the expected frontrunners-including Bernie Sanders, Kamala Harris, and Elizabeth Warren-have disavowed super PACs. But this is tricky in practice…
“Any candidate who swears he won’t accept super PAC money is either ignorant, or assumes the listener is ignorant,” says Smith. “A candidate cannot ‘refuse’ super PAC support. He can publicly ask a super PAC not to spend in his race, but the super PAC can choose to ignore the plea and spend whatever it wants.”
Such a claim, therefore, amounts to “grandstanding,” he says.
New from the Institute for Free Speech
Amicus Brief: Arkansas Anti-BDS Law Violates the First Amendment
The Institute for Free Speech and the Foundation for Individual Rights in Education (FIRE) yesterday filed an amicus brief stating that an Arkansas law is unconstitutional because it requires that government contractors pledge not to boycott Israel. The ability to engage in political boycotts is a crucial component of the right to speech and association, the brief explains.
“Political boycotts are protected by the First Amendment and have a long tradition in American politics. From boycotts of British goods in the colonial era, to the Montgomery bus boycott of the civil rights movement, Americans have always used their pocketbooks to express their opinions and advocate for change,” said Institute for Free Speech Legal Director Allen Dickerson.
The pledge requirement was passed by the Arkansas General Assembly and signed into law by Governor Asa Hutchinson in 2017. The Arkansas Times refused to sign the pledge and was consequently penalized by the state.
The Times, represented by the ACLU of Arkansas, then challenged the law in December 2018. The case was dismissed by a U.S. District Court on January 23, 2019. The Times appealed to the Eighth Circuit Court of Appeals in February…
Courts must examine boycotts holistically to determine whether they are politically-motivated, the brief explains.
“[T]he district court erred in breaking down the boycott component by component to see whether each one would individually ‘fall under the First Amendment.’ As noted above, a boycott is more than the sum of its parts, and its nature and context as a whole must be examined to determine if it is a protected political boycott. The nature and context of the boycotts prohibited by Arkansas squarely place them among the political boycotts protected by the First Amendment,” according to the brief.
The statute before this Court doubtless arose from good intentions: a desire to protect Israel and ensure that an evil like the Shoah, or Holocaust, “never arise again.” But prohibiting boycotts of Israel is counterproductive. Such viewpointbased restrictions could just as easily be used against Israel, or any other target disfavored by a state or local government. And chilling expression only exacerbates the “thoughtlessness [that] can wreak more havoc than all the evil instincts taken together.”
Freedom of expression-including expression one believes mistaken-and freedom of association are necessary if societies, including our own, are to avoid the mistakes of the past. This case involves a crucial subset of the right to speech and association: the ability of individuals to engage in the mutual, expressive economic activity of a political boycott.
This right has been specifically recognized in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), and its progeny. In deciding that the boycott in that case was protected, the Court did not do what the district court did here. It did not simply ask whether a boycott involved expressive activity-every effective boycott does. Rather, the Court examined the source, context, and nature of the boycott as a whole to determine whether it was a protected political boycott or an unprotected, purely commercial effort. Only that test properly protects the association and speech rights implicated in political boycotts. And, under that test, Arkansas’s law violates the First Amendment.
Regulating Speakers Harms First Amendment Rights, Whether They’re Professional Journalists or Not
By Alex Baiocco
Six Republican legislators in the Georgia General Assembly recently introduced a bill titled the “Ethics in Journalism Act.”
According to The Atlanta Journal-Constitution, Rep. Andy Welch, the bill’s lead sponsor, decided that journalists need “canons of ethics” enforced by a state “Journalism Ethics Board” following a frustrating interaction with an allegedly biased reporter asking him questions about legislation…
Creating a state board to regulate and monitor news outlets is an obvious affront to the First Amendment. But what if another state board existed to regulate and monitor all speech about campaigns and elections paid for by any group other than a media organization? Let’s say “accreditation” is far from voluntary. No entity is allowed to fund speech about candidates without notifying this board. Furthermore, the group must report every dollar received and spent on advocacy, as well as the name, address, and employer of every person who contributes more than $100 towards the effort. Failure to comply with any of the complex regulations and burdensome reporting requirements would result in investigations, fines, and possibly even criminal liability.
Any such board would be just as threatening to Georgians’ First Amendment rights as the “Journalism Ethics Board” proposed by Rep. Welch.
Yet a commission with precisely these powers already exists in Georgia. It is known as the Georgia Government Transparency & Campaign Finance Commission, commonly called the “ethics commission.”
It’s as if media organizations received some unspoken accreditation while everyone else simply can’t be trusted and must be monitored by the government. All political speakers but the media are heavily regulated.
Supreme Court
Cato: Supreme Court Argument in the “Scandalous Trademarks” Case Wasn’t So Funny
By Ilya Shapiro
Two years ago in the Tam case, the Supreme Court struck down the Lanham Act’s “disparaging trademarks” provision, but the justices seem less likely to erase the “scandalous trademarks” prohibition now – at least as far as one can tell from this morning’s argument in Iancu v. Brunetti.
That’s because racial slurs and other offensive phrases necessarily have a viewpoint – on the basis of which the First Amendment doesn’t allow the government to discriminate – but swear words can be just a “mode of expression.” At the same time, the “scandalous” mark restriction is so broad that the government is asking the Court to either accept its benevolent assurances or narrow the statute. There were echoes of the government’s assurances not to prosecute certain kinds of speech in Citizens United there, and indeed the same deputy solicitor general, Malcolm Stewart, initially argued that case – leading to the Court’s setting it for re-argument and blowing up the relevant statute.
The most telling series of questions involved the regulation of bus advertising, and that example should indeed decide the case: you should be able to register trademarks that come short of obscenity (which is generally pictures or sentences, rather than single words), but both registered and unregistered trademarks are still properly subject to time, place, and manner restrictions. And that includes “limited public forums” like the sides of municipal buses, public park benches, and the like…
I previously wrote about the background of Brunetti – in which Cato filed its latest “funny” (more “vulgar”) brief.
CNN: Supreme Court declines to take up First Amendment case brought by rap artist
By Ariane de Vogue
The Supreme Court declined Monday to take up the case of rapper Jamal Knox, who argued he was sent to prison for a song that was protected by the First Amendment.
By avoiding the issue for now, the justices left for another day a look at the contours of so called “true threats” — speech that falls outside the protections of the First Amendment.
The case was of keen interest to rappers who weighed in to argue that rap music is a “work of poetry” where “meter and rhyme are primary,” and words are often chosen for their contribution to a song’s rhythm rather than its precise message.
In a legal brief filed in early March, rappers Killer Mike, Chance the Rapper, Meek Mill, Yo Gotti, Fat Joe and 21 Savage were among a group of artists and scholars who say Knox’s rap song “F*** the Police” is a “political statement … that no reasonable person familiar with rap music would have interpreted as a true threat of violence.” …
Knox appealed his conviction to the Pennsylvania state Supreme Court, which upheld the ruling last year. The court’s chief justice wrote in the ruling the song “is of a different nature and quality” because it doesn’t “include political, social, or academic commentary, nor are they facially satirical or ironic. Rather, they primarily portray violence toward the police.”
The question Knox’s lawyers were seeking an answer to from the high court was whether a government must show that a “reasonable person” would regard someone’s statement as a sincere threat of violence, or whether it is enough to show only that the speaker’s subjective intent was to threaten.
The Pennsylvania court was divided over the standard for what determines a statement to be a “true threat.”
Candidates and Campaigns
Wall Street Journal: A Well-Funded Campaign Does Not Guarantee Success (Video)
President Trump’s re-election campaign announced that it had raised more than $30 million in the first quarter of 2019, and that it had $40 million in cash on hand. Does a well funded campaign guarantee presidential success? WSJ’s Gerald F. Seib explains.
Axios: Money doesn’t matter in modern presidential races
By Felix Salmon and Alexi McCammond
Having lots of money at the beginning of a presidential race – or even at the end – matters much less than it did in the past.
Be smart: President Trump probably could have won in 2016 with no money. You can’t put a price tag on free Twitter coverage, free cable coverage and all the stories flowing from both.
The big picture: Huge out-of-the-gate dollar advantages for Hillary Clinton in 2008 or Jeb Bush in 2016 didn’t help them over the finish line.
There’s a long history of rich people trying and failing to win elections with money: Meg Whitman, Carly Fiorina, Linda McMahon, etc.
Such presidential follies go all the way back to Ross Perot in 1992, and are likely to be continued by Howard Schultz this cycle. David Koch was the Libertarian Party candidate for vice president in 1980!
The bottom line: In many ways, the money primary is not important because money is important, but rather because it helps determine which candidates are taken seriously by the media.
Politico: Wall Street critic Waters rakes in corporate campaign money
By Zachary Warmbrodt
Rep. Maxine Waters is embracing corporate campaign contributions as the new chairwoman of the House Financial Services Committee, even as other progressive Democrats have sworn off fundraising from businesses.
The California Democrat’s campaign received about $210,329 in contributions during the first three months of this year, most of which came from industry PACs, according to a new filing with the Federal Election Commission. About $38,329 came from individual contributions.
The figures suggest that Waters is following through on a pledge to have an “open-door” policy with industry, even as she uses the gavel to crack down on financial firms in the name of consumer protection…
Waters’ allowance for corporate PAC donations sets her apart from other liberal icons such as Sen. Elizabeth Warren (D-Mass.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.), who have pledged to not take the money.
The States
New York Post: Nomiki Konst campaign paid $115K to firm with ties to boyfriend: former aide
By Carl Campanile
An aide who worked on Nomiki Konst’s failed bid for public advocate has filed a complaint alleging Konst’s campaign paid $114,918 in taxpayer funds to a firm associated with her “on-again-off-again” boyfriend “for services largely not performed.”
“Not only does this violate the rules, it is fraud under the New York Penal law,” said Jason Coniglione’s complaint with the Campaign Finance Board.
Konst received $512,560 in public matching funds on Feb. 21 – five days the Feb. 26 special election. A total of $114,918 in Konst campaign funds went to pay a group called Deep South Political Consulting.
In total, 11 eligible candidates received $11.1 million in taxpayer funds for an office with a budget of about $3.5 million…
Reports to Coniglione after the election indicated that only one van carrying 12 paid workers paid by Deep South showed up on one day – Election Day, the complaint said.
“All they did was hang up posters,” according to his complaint filed by his lawyer, Arthur Schwartz.
Konst received only 2.3 percent of the vote in the 17-candidate contest…
Arthur Greig, an attorney for Konst, dismissed the complaint, claiming Coniglione tried to shake down Konst.
“These baseless allegations were made by a campaign aide who both sexually harassed Ms. Konst and attempted to extort Ms. Konst for money and a personal sexual relationship,'” Greig said in a statment.
“The campaign aide’s irrational behaviors have been delusional and physically threatening and we have notified the appropriate authorities and may pursue appropriate legal action if necessary.”
Gotham Gazette: City Council Hears Bill to Expand Public Match in Campaign Finance Program
By Samar Khurshid
Under a recent city charter amendment approved by voters, a citywide candidate can receive public funds at an 8-to-1 ratio for the first $250 of each contribution (an increase from 6-to-1 for the first $175), and they can cover up to 75% of the spending limit for the office through public funds (up from 55%).
That charter change was quickly implemented through local law, sponsored by Council Member Ben Kallos, for all special elections before the 2021 general election, thus applying to multiple races this year.
Kallos, a Manhattan Democrat, has also proposed increasing the public funds cap to roughly 89% of the spending limit…
Amy Loprest, executive director of the CFB, and Frederick Schaffer, chair of the board, said they were “supportive of the goals of this legislation” but had practical concerns about the current version. For one, Loprest noted, the recent charter amendment imposed a prohibition on early payment of public funds unless a candidate submits a Certified Statement of Need, in order to prevent unserious candidates or those without any opposition from getting public money. Kallos’ bill removes that prohibition, and Loprest said it should find a way to address it…
[Dawn Smalls, an attorney who ran for public advocate in the February special election] criticize[d] the CFB’s compliance regulations, which she said are “an unnecessary burden on all candidates, but one that falls excessively on candidates that may be new to the process and have less infrastructure.” She emphasized her campaign’s sophisticated operation and team of professionals, which she said shouldn’t be necessary or reasonably expected of first-time candidates…
Council Member Kalman Yeger, a Brooklyn Democrat and former campaign finance consultant, criticized the proposal and sought to repeatedly poke holes in the campaign finance program more broadly.
