In the News
Washington Free Beacon: Court to Determine if Contact With Government Equates to Lobbying
By Todd Shepherd
The U.S. Court of Appeals for the 8th Circuit [heard] a case Friday in which a citizen activist who habitually walks the halls of the state capitol in Missouri to talk to elected lawmakers about political issues was later declared by a state ethics commission to be a lobbyist.
Heightening the drama is the fact that the 8th Circuit has previously heard the case, resulting in a 2-1 ruling that went against the man, Ron Calzone. However, an en banc hearing was later granted…
[Dave] Roland says if his client loses, there will be a chilling effect on citizen interaction with their government.
“Every year, thousands of Missourians go down to the state capitol to share their own ideas with those in power, and some of those people also affiliate with other groups, and they wear shirts or they wear some article of clothing indicating that they’re connected with this other group, and possible even directly saying that they’re speaking on behalf of another group, but not paid lobbyists by any stretch of the imagination.” …
Each federal circuit court receives thousands of requests every year for en banc hearings, and very few are granted, which is boosting Roland’s hopes for his client. En banc petitions are circulated to all of the judges in the circuit, and must receive a majority vote for a rehearing.
“It sends a distinct message that there’s a significant likelihood that the full panel disagreed with the original three-judge panel’s outcome,” Roland said, noting that he estimates about 75 percent of en banc hearings in the 8th Circuit are eventually overturned from the original ruling.
Calzone is also receiving legal assistance from the Institute for Free Speech, a Washington, D.C.-based think tank that “defends the First Amendment rights to freely speak, assemble, publish, and petition the government,” according to its website.
Rapid City Journal: Ex-attorney general files lawsuit for groups challenging ban on out-of-state political contribution
By Arielle Zionts
The former attorney general’s law firm is suing the current attorney general and secretary of state over South Dakota’s ban on out-of-state contributions for ballot measures, saying it violates the right to free speech and political and economic activity.
The ban prohibits the plaintiffs and others “from exercising their First Amendment freedoms and discriminates against their economic activity,” the lawsuit says. The plaintiffs also assert that it violates the Commerce Clause, which says only Congress can regulate interstate commerce.
Marty Jackley, who ran for governor as a Republican in 2018 after serving as attorney general for eight years, filed the lawsuit in federal court Wednesday against Attorney General Jason Ravnsborg as well as Steve Barnett, the secretary of state…
Jackley, now working for Gunderson, Palmer, Nelson, Ashmore LLP of Rapid City, is suing on behalf of the South Dakota newspaper, broadcaster and retailers associations; the ballot action committee for the South Dakota Chamber of Commerce; Thomas Barnett, a former South Dakota resident; and Americans for Prosperity (AFP), a libertarian organization.
The law banning out-of-state contributions to statewide ballot-measure committees, known as Initiated Measure 24, was approved by voters during the 2018 election, 56 to 44 percent. Committees “will suffer significant penalties” – 200 percent of the donation – if they accept such gifts, the lawsuit says…
“The ban created an unprecedented concern for the newspaper association because of the law’s restraint on free speech,” the lawsuit says. The ban will also decrease revenue for member papers and well as TV and radio stations with the broadcasters association. Radio stations also are required to educate listeners on ballot questions and limiting funding will harm these efforts, the lawsuit says.
Mitchell Daily Republic: Lobbyists sue SD officials over ban on out-of-state contributions to ballot measure committees
By Sarah Mearhoff
Former-Attorney General Marty Jackley, among others, filed the complaint in the federal court in the district of South Dakota against defendants Secretary of State Steve Barnett and Attorney General Jason Ravnsborg on Wednesday, April 17…
“The Out-of-State Plaintiffs want to engage in debate on public issues in South Dakota by contributing to the South Dakota Plaintiffs,” reads the complaint. “The South Dakota Plaintiffs want to engage in debate on public issues by receiving contributions from the Out-of-State Plaintiffs and other out-of-state persons to fund their advocacy efforts, but the Ban prohibits them from exercising their free speech rights and bans their political association rights.”
Plaintiffs also argue that the ban “establishes a governmental preference for in-state speech as opposed to out-of state speech,” and that it violates the Constitution’s Commerce Clause by attempting to regulate interstate commerce.
ICYMI
Lawsuit Challenges South Dakota Ban on Out-of-State Contributors to Ballot Measures
A coalition of South Dakota media associations, trade associations, a nonprofit advocacy group, and a former South Dakota resident yesterday filed a lawsuit in federal court challenging a South Dakota law that will ban Americans from other states from contributing to ballot measure campaigns. The groups are represented by the Institute for Free Speech and former South Dakota Attorney General Marty J. Jackley.
“The ban is an affront to the First Amendment,” said Institute for Free Speech Legal Director Allen Dickerson. “States cannot prevent speech simply because it is funded in part by Americans who live in other states. This law denies South Dakotans the right to hear messages from their fellow Americans.”
Plaintiffs in the case are the South Dakota Newspaper Association, the South Dakota Retailers Association, the South Dakota Broadcasters Association, the South Dakota Chamber Ballot Action Committee, Thomas Barnett, Jr., and Americans for Prosperity.
The lawsuit says contributions in support or opposition to ballot measures are an important form of free speech protected by the First Amendment. Courts have long recognized that contributions to ballot measure campaigns promote robust debate about public issues. This is no less true for contributions from Americans from other states, the lawsuit explains.
Many state issues have national or regional implications, and voters may wish to hear from non-state residents or businesses who will be affected by state policy. Voters may also wish to hear from national organizations with expertise in specific policy areas…
The case, South Dakota Newspaper Association v. Barnett, is before the United States District Court for the District of South Dakota, Central Division. To read the complaint, click here. To read more about the case, click here.
Free Speech
ABA Journal: Free speech or censorship? Social media litigation is a hot legal battleground
By David L. Hudson Jr.
The now-retired U.S. Supreme Court Justice Anthony Kennedy, in an opinion on a 2017 First Amendment case, called the cyber age a revolution of historic proportions, noting that “we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”
Kennedy said cyberspace, and social media in particular, was among the “most important places … for the exchange of views.” He compared the internet to a public forum, akin to a public street or park. Although Justice Samuel A. Alito concurred in the opinion, he also chastised Kennedy for his “undisciplined dicta” and “unnecessary rhetoric.”
But Kennedy’s lofty language in Packingham v. North Carolina accurately observed that the greatest battleground for free expression both nationally and globally occurs online with social media. “That language reflects Justice Kennedy’s long-standing view that the public forum doctrine should not remain frozen in time, limited to protecting public squares and public parks, while new forums for public debate go unprotected,” explains free-speech expert Kevin O’Neill, a professor at Cleveland-Marshall School of Law. “It will be interesting to see whether today’s judges respond to his call.”
This hot battleground raises serious concerns about the future of free speech, including attempts at censorship by government actors critical of comments on social media, the shifting standards of private platforms to censor online expression and the rise of hate and extremist speech in the digital world.
Supreme Court
Techdirt: Supreme Court Again Ducks A Chance To Clarify First Amendment Protections
By Tim Cushing
The First Amendment is getting no help from the nation’s highest court. Yet again, the Supreme Court is declining an opportunity to answer a very important question about free speech: where is the dividing line between threats and violent — but protected — speech?
The Supreme Court already punted on this issue in 2015 with the Elonis v. United States case. In that case, Anthony Elonis posted a bunch of nasty stuff online about his ex-wife. He ended up being jailed for these, with the court finding his posts — which he claimed were merely him venting in the form of ultraviolent rap lyrics — constituted threats.
His appeal went all the way to the top but the Supreme Court had nothing for him. It did overturn his conviction, but it left the First Amendment question unanswered. The Supreme Court said the trial court adhered to the wrong negligence standard…
Having decided the wrong standard was used by the trial court, the Supreme Court declared it did not need to hand down an opinion on the First Amendment implications, leading to the mess we’re in now, with lower courts drawing disparate conclusions about the line between threats and protected speech.
The mess will continue. Pittsburgh rap artist Jamal Knox was jailed for the lyrics of his song “Fuck the Police.” An obvious tribute to the 1988 N.W.A. track, Knox’s song included the names of two officers that had previously arrested him…
On the basis of the cops’ subjective response to the song’s lyrics, Knox was sent to prison for two years. (His sentence also included drug and gun charges.) Knox argued his lyrics were part of his rap persona and that he was not trying to threaten the officers, much less try to bring his violent lyrics to life. The state supreme court upheld the conviction…
I guess the First Amendment will have to wait for another test case the Supreme Court can’t wait to bypass. We need to have this question answered.
Congress
Foreign Affairs: The Dark Side of Sunlight
By James D’Angelo and Brent Ranalli
The problem began in 1970, when a group of liberal Democrats in the House of Representatives spearheaded the passage of new rules known as “sunshine reforms.” Advertised as measures that would make legislators more accountable to their constituents, these changes increased the number of votes that were recorded and allowed members of the public to attend previously off-limits committee meetings.
But the reforms backfired. By diminishing secrecy, they opened up the legislative process to a host of actors-corporations, special interests, foreign governments, members of the executive branch-that pay far greater attention to the thousands of votes taken each session than the public does. The reforms also deprived members of Congress of the privacy they once relied on to forge compromises with political opponents behind closed doors…
Others might contend that the real problem is too little transparency in campaign fundraising. But the evidence suggests otherwise. For one thing, it is difficult to establish a causal relationship between the campaign donations a legislator receives and the way he or she votes. Although researchers have found some correlation between receiving money from a group and voting the way that group prefers, it is important to note that special interests are likely to give to lawmakers who are already friendly to their cause, and instances of naked quid pro quos are rare. For another thing, it’s worth pointing out that the rise in campaign spending correlates closely with the rise in congressional transparency. Indeed, donors appear to be interested in supporting only the campaigns of members of Congress whose legislative actions they can track. If the goal is to reduce the amount of money in politics, then restoring legislative secrecy may well be the best way to accomplish it.
Associated Press: Sen. Whitehouse targets dark money to address climate change
By Jennifer McDermott
Sen. Sheldon Whitehouse, a Rhode Island Democrat, is targeting so-called “dark money” because he thinks opposition to addressing climate change in Congress is propped up by the fossil fuel industry.
“If you kicked out that support, the opposition would fall,” said Whitehouse, who was sworn in for a third term in January.
His bill introduced Thursday would require organizations spending money in federal elections, including super PACs and certain nonprofit groups, to promptly disclose donors who gave $10,000 or more during an election cycle. Whitehouse has introduced similar legislation each Congress since 2012, but he said he’s more hopeful now because Democrats control the House and there’s mounting public pressure to address climate change…
A similar proposal to reduce the role of big money in politics passed the House in March as part of a sweeping elections and ethics overhaul. U.S. Rep. David Cicilline, also a Rhode Island Democrat, helped craft it.
Cicilline said he’s targeting a range of special interests that spend money secretly on elections and adversely impact public policy, but like Whitehouse he said dark money spending by fossil fuel companies is impeding Congress’ ability to respond to climate change. That spending needs to be exposed to make progress on the issue, he added…
Cicilline plans to introduce a stand-alone bill to require the disclosure of political spending soon.
IRS
ProPublica: How the IRS Gave Up Fighting Political Dark Money Groups
By Maya Miller
Since 2015, thousands of complaints have streamed in – from citizens, public interest groups, IRS agents, government officials and more – that C4s are abusing the rules. But the agency has not stripped a single organization of its tax-exempt status for breaking spending rules during that period. (A handful of groups have had their status revoked for failing to file financial statements for three consecutive years.)
Most cases do not even reach the IRS committee created to examine them. Between September 2017 and March 2019, the committee didn’t receive a single complaint to review according to one former and one current IRS employee who worked closely with the committee, even as at least 2,000 warranted its consideration. (The IRS disputes this.) The standards are almost as permissive when organizations apply for C4 status in the first place. In 2017, for example, the IRS rejected only three out of 1,487 applications.
The IRS’ abdication of oversight stems from a trio of causes. It started with a surge in the number of politically oriented C4s. That was exacerbated by the IRS’ almost comically cumbersome process for examining C4s accused of breaching political limits; the process requires a half-dozen layers of approvals and referrals merely to start an investigation. That is abetted by years of IRS staff attrition and loss of expertise that was then compounded by steady budget reductions by Congress starting in 2010. The division that oversees nonprofits, known as the “exempt organization” section, shrank from 942 staffers in 2010 to 585 in 2018, according to the IRS.
On top of that, the 2013 scandal in which the IRS was accused of targeting conservative nonprofits left the division seared by the vilification of the conservative politicians, media and the public, and by the resignation of Lois Lerner, who headed the division.
Fundraising
Politico: Kamala Harris takes early lead in the big-money race
By Maggie Severns, Elena Schneider, and Christopher Cadelago
[W]hile candidates have taken a more muted approach to raising checks from wealthy supporters this cycle as they seek to prove they have grassroots support online, they still benefit greatly [from] big-donor support – and most are pursuing it seriously…
“It’s about whether you’re willing to get your hands dirty,” said Rufus Gifford, former finance director for Obama’s 2012 reelection campaign. “Writing the check is not good enough – [campaigns] need people to work their networks” to build a national machine of donors and volunteers to give them life, Gifford said…
In past years, some candidates publicized fundraisers and touted their bundlers alongside their grassroots supporters as signs they were running formidable campaigns. But fundraising among Democratic candidates for president has been muffled so far this year, as many Democrats try to prove their distance from special interests and wealthy donors, instead leaning on online small-dollar fundraising for support.
For many candidates, that approach may have its limits – which were reflected in the first-quarter fundraising reports, cautioned Gifford…
“The campaigns need to understand that email giving is not the be-all and end-all. And we’ve seen that in the campaign fundraising numbers. This is about working it, it’s about working relationships, it’s about talking to people,”…
Michael Toner, former counsel to the Republican National Committee and multiple Republican presidential campaigns, predicted Democratic candidates will become more aggressive about big-dollar fundraising as they head into the summer primary debates…
“You have to raise enough money to compete in these caucuses, and you’ve got to have the resources to compete in a multi-front war,” Toner said. “It’s a necessary, but insufficient, condition in term of getting nominated.”
The States
By Sally Goldenberg
Mayor Bill de Blasio personally contacted people doing business with his administration in search of political donations, in violation of instructions from a city ethics board, according to the results of an investigation concluded last year and made public Wednesday.
Between June and the fall of 2015, as he was gearing up to push a controversial affordable housing policy, de Blasio called on real estate developers and others who were seeking approvals and permits from city agencies. He wanted something too: money for an entity he set up upon taking office that would help promote his agenda, according to a city Department of Investigation [DOI] report first made public by THE CITY.
The fundraising organization, Campaign for One New York, took in about $4 million before it was dissolved in 2016. It was the subject of a subsequent federal probe that did not yield any arrests. POLITICO reported in 2015 that most donors had business before the city, and some were successful in their endeavors.
De Blasio’s personal role in soliciting that money was clarified in the DOI report, which is dated Oct. 22, 2018.
During those months of fundraising, de Blasio “walked around the block as he called potential donors on his cell phone,” the report states. He called six to 10 donors a week, but only when his schedule was not too busy with government affairs…
Before the mayor established the Campaign for One New York, he sought guidance from the city’s ethics board, which said he could solicit donations personally, but not from anyone with matters pending or about to be pending before his administration.
