New from the Institute for Free Speech
Advocacy Groups Across the Ideological Spectrum Demand Privacy for Their Supporters
By Alex Baiocco
In New Jersey, progressive groups vocally opposed a bill intended to expose the donors of groups that speak about policy issues being considered by the Legislature. According to NJ.com, “a coalition of more than 40 progressive groups, labor unions, and faith leaders called on [Governor Phil] Murphy not to sign the bill until lawmakers agree to” pass companion “cleanup” legislation meant to address the provisions most damaging to advocacy organizations. The coalition called the bill “a direct attack” on progressive groups and said it would have a “chilling effect” on their advocacy…
Now that the bill has become law, Americans for Prosperity, a libertarian-leaning nonprofit, is challenging it in federal court. The American Civil Liberties Union of New Jersey previously announced they were preparing to sue over the law. And the Brennan Center for Justice, a progressive group that can often be found advocating for more nonprofit donor disclosure, has said that provisions of the law that force organizations “simply trying to advocate for policy change” to hand over their donor lists to the government for public exposure “raise serious First Amendment concerns.” …
In Oregon, a group of organizations that “work to advance social justice issues in Oregon by encouraging communities of color to engage directly in our democracy” urged state legislators to vote against a bill that “regulates issue advocacy” and “compels nonprofit organizations to disclose donors who do not have any connection to the political activity referenced in [the] bill.” …
When Politico asked why the Open Markets Institute, described as “a liberal think tank,” doesn’t disclose its donors, Open Markets Fellow Matt Stoller responded that “monopolies are vindictive.” The group’s Deputy Director, Sarah Miller, added, “When you are going up against the world’s most powerful companies, it is probably not strategic to expose some of the people who want to fund that work.”
Supreme Court
Washington Post: Why Julian Assange is unlikely to find refuge in the Supreme Court
By Zachary Jonathan Jacobson
People misremember the Supreme Court decision in the Pentagon Papers cases that gave the Times the right to publish the documents. The court did not find a sacrosanct freedom of the press. It merely allowed for the continued publication. Indeed, the justices’ split decision pointed in the other direction: that in matters of “mortal danger,” journalists have a legal responsibility not to publish…
When the Times stopped printing the Pentagon Papers, The Washington Post took over publishing until it was also sued by the government. The cases of New York Times Co. v. United States and United States v. Washington Post were reportedly the first in American history in which the government sued newspapers for prior restraint. Never before had prior restraint been declared on national security grounds…
In the end, the court was so divided that, in an unusual move, the justices issued 10 opinions. Instead of the usual majority-subscribed “opinion of the court,” the justices offered an unsigned ruling, which Chief Justice Warren Burger read to a packed crowd of onlookers. In three short paragraphs, the majority laid out a narrow verdict: The government had neither demonstrated nor met the threshold to justify halting the printing. The court lifted the temporary stays against publication, and the Times and The Post were free to continue reproducing the papers.
Yet the short dictum offered neither a defiant championing of the free press nor a definitive bolstering of executive reach. Nine conflicting opinions and a bland unsigned holding left ample room for interpretation…
Because of the deep fractures in the court, the holding obscured how a nonbinding majority of five found that in publishing sensitive material and secret documents, journalists and newspaper owners would neither be free of the Espionage Act nor clear of prison time.
The Courts
Courthouse News Service: Second Circuit Pries Open Trump Twitter to Public
By Adam Klasfeld
Emphatically rejecting the argument that the president’s Twitter account is private, the Second Circuit ruled Tuesday that it is unconstitutional for Donald Trump to block users who criticize him.
“The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide-open, robust debate,” U.S. Circuit Judge Barrington Parker wrote for a three-judge panel. “This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen.
“This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing,” the ruling continues. “In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.”
Justice Department spokeswoman Kelly Laco expressed disappointment with the ruling and said the government is “exploring possible next steps.”
“As we argued, President Trump’s decision to block users from his personal Twitter account does not violate the First Amendment,” she added.
The 29-page opinion affirms a May 2018 ruling where U.S. District Judge Naomi Reice Buchwald sided with seven academics, entertainers and political personalities blocked by President Trump.
Represented by the Knight First Amendment Institute at Columbia University, the challengers argued that a public official’s personal social media account is not a Constitution-free zone, if put to government use.
Des Moines Register: Iowa county will pay $10K, set up training, promise to avoid discrimination to settle free-speech lawsuit
The Adams County Sheriff’s Office in southern Iowa will pay $10,000 to a man they accused of criminal harassment after he criticized deputies’ conduct on Facebook, his lawyers said.
The money is part of the settlement concluding a federal lawsuit Jon Goldsmith had filed with the aid of the American Civil Liberties Union of Iowa. Other terms of the settlement include mandatory free-speech training for sheriff’s office employees and an injunction stating that the county and sheriff’s office employees will never again file charges against a person who lawfully criticized them, or bar critics from official Facebook accounts.
Only the injunction terms are specified in court documents made public Monday.
“As the court’s injunction today confirms, people have a constitutional free speech right to criticize their government,” ACLU of Iowa Legal Director Rita Bettis Austen said in a prepared statement. “Police are not allowed to charge people with crimes because they annoy the police or say things the police disagree with.”
Adams County will also pay the ACLU’s legal costs, according to a news release.
CNN: Federal judge refuses to dismiss campaign finance violation case against Rep. Duncan Hunter
By Maeve Reston
A federal judge on Monday refused to dismiss the campaign finance violation case against California Republican Rep. Duncan Hunter.
In San Diego federal court, US District Judge Thomas J. Whelan rejected arguments from Hunter’s attorneys that the case was politically motivated because two assistant US attorneys attended a fundraiser for Hillary Clinton and later brought the case against Hunter, who was one of the first congressmen to endorse then-candidate Donald Trump during the 2016 campaign.
The judge also tentatively denied a motion to move his September trial to a different venue, despite their arguments that the jury pool in San Diego would be tainted by the ample press coverage of Hunter’s alleged misuse of more than $200,000 in campaign funds. The issue will be revisited during jury selection.
Hunter and his wife Margaret were indicted in August on charges that they misused a quarter of a million dollars to furnish a lavish lifestyle between 2010 and 2016 — at a time when they were repeatedly overdrawing their personal checking account. They were charged with conspiracy, wire fraud, falsifying records and campaign finance violations. The San Diego County congressman’s trial is set for September 10.
Congress
Politico: House Dems set to subpoena Kushner, Sessions and 10 other Mueller witnesses
By Kyle Cheney and Andrew Desiderio
The House Judiciary Committee will vote on Thursday to authorize subpoenas for 12 of former special counsel Robert Mueller’s witnesses – including President Donald Trump’s son-in-law Jared Kushner, former Attorney General Jeff Sessions, his former deputy Rod Rosenstein, former national security adviser Michael Flynn, former chief of staff John Kelly and former Trump campaign manager Corey Lewandowski…
The barrage of subpoena authorizations represents a major expansion of the committee’s Trump-focused investigation, casting a wider net from obstruction of justice to hush-money payments. The committee has faced repeated resistance from the White House as it investigates obstruction of justice allegations against the president…
The subpoena targets include two executives of American Media, Inc. – Dylan Howard and David Pecker – who testified about Trump’s alleged hush-money payments to a woman who accused him of an extramarital affair before the election. And it includes current and former Trump administration officials Rick Dearborn, Jody Hunt and Rob Porter.
The list also includes Keith Davidson, an attorney who previously represented adult-film actress Stormy Daniels. Trump’s former attorney and fixer Michael Cohen orchestrated a $130,000 payment to Daniels to buy her silence over an alleged affair with Trump. Cohen is serving a three year prison sentence in part for the hush-money payment, which prosecutors said amounted to a campaign finance violation.
FEC
By Asher Stockler
Adav Noti, the senior director for trial litigation at the Campaign Legal Center and a former acting assistant general counsel at the FEC, told Newsweek that a critical factor in determining coordination would be whether any of Mauldin’s work was done on campaign time or using campaign resources.
When reached for comment, Mauldin ruled out this possibility, telling Newsweek that “none of the work on the site was done during billable hours for the campaign whatsoever.”
“It was not instigated, directed, paid for or worked on with anyone in the campaign,” he said. “This was entirely done 100 percent by me on my own time.”
Noti said that the propriety of Mauldin’s work would hinge on “the structure of his relationship with the campaign.”
It may well be permissible if Mauldin “is just working a couple hours a week as an independent contractor, and then separately truly doing this on his own time.”…
“It matters what the campaign knew about the activity and whether they explicitly or implicitly condoned or blessed it,” he said. “It’s very fact-specific, so it depends on what their response was to knowing.” …
“The Federal Election Commission has ruled on this,” he explained to Newsweek. “If someone goes to a campaign and says, ‘I’m going to spend $10,000 to do ‘x’ in support of you,’ and the campaign person nods and says nothing, that’s almost certainly a coordinated expenditure.”
“It would be different if he didn’t tell them and they just found out somehow,” Noti added.
But Andrew Herman, a campaign finance lawyer at the D.C. law firm Miller & Chevalier, played down the notion that knowledge of Mauldin’s involvement alone, regardless of how it came about, could trigger coordination issues.
“If that were the only fact, that the campaign had knowledge, I don’t think that would be sufficient to establish coordination according to the way it has been defined in the past by FEC election rules,” he told Newsweek.
Candidates and Campaigns
Politico: Reformers push Dems to adopt sweeping anti-corruption platform in 2020
By Maggie Severns
As Democratic presidential candidates swear off super PACs and corporate PAC money, a campaign finance reform group is pushing them to take things a step further by using anti-corruption messages to campaign against President Donald Trump and pledging to make ethics reform an early priority in the White House.
End Citizens United, armed with polling and a track record of success in helping elect Democrats during the 2018 midterm elections, says Democrats shouldn’t hesitate to put an anti-corruption message at the forefront of the eventual general election, according to polling and presentation materials reviewed by POLITICO. The group’s leaders have briefed nine presidential campaigns, including the campaigns of polling front-runners Joe Biden, Kamala Harris, Bernie Sanders and Elizabeth Warren, and they are making plans to sit down with more…
ECU operates with the goal of getting money out of politics and supporting politicians who pledge to work on campaign finance reform. The group backed more than 50 successful Democratic congressional candidates during the midterms, and it helped raise $9 million for candidates, including for 27 successful challengers who flipped seats while pledging to not take corporate PAC money.
As Democrats worked to flip the House, ECU and the “no corporate PAC” Democrats prodded incoming House leadership to make a sweeping ethics reform package its first order of business in the House. The bill, H.R.1, passed the House in March, though it has received little attention in the Republican-led Senate.
ECU is adopting a similar approach to the Democratic 2020 field. The group has not announced how it will support Democratic candidates for president. But it is now asking Democratic campaigns to commit to making ethics reform as his or her act as president, a sign it is outlining criteria and may start raising money for some candidates later in the campaign.
Cato: RIP Ross Perot, the Billionaire Who Ran for President
By David Boaz
Perot was reported to have spent $65 million of his own money on his campaign (the Democratic and Republican candidates got $55 million each in taxpayer money in exchange for pledges by the candidates to limit direct campaign contributions, but they still managed to raise about $60 million each in “soft money”). In one sense, Perot’s campaign was a perverse result of federal campaign finance regulations. The Federal Election Campaign Act severely restricted how much money one could contribute to a campaign – unless you were the candidate. You could spend as much of your own money on your own campaign as you wanted. So the only way that Perot could spend $65 million (he tossed around suggestions of spending $100 million) was to run for president himself. But maybe the country would have been better off if he had been able to donate that money to, say, the well-respected Sen. Warren Rudman of Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act fame. Similarly, maybe it would have made more sense for Steve Forbes to donate $38 million to supply-side evangelist Rep. Jack Kemp in 1996 rather than to run himself.
Ross Perot did have one positive impact on American politics. He made spending, deficits, and debt a real political issue, and that surely played a role – along with the booming economy – in bringing down deficits during the Clinton administration.
Perot also demonstrated that it’s extremely difficult to run an even modestly successful presidential campaign outside the two major parties unless you are both a billionaire and a celebrity.
PJ Media: Tom Steyer Enters 2020 Promising to Destroy ‘Opposition’ to Liberal Causes
By Tyler O’Neil
Steyer begins his video by saying, “I think people believe that the corporations have bought the democracy, that the politicians don’t care about or respect them – don’t put them first, are not working for them but are actually working for the people who have rigged the system.” …
Specifically, Steyer demonizes the Supreme Court decision in Citizens United v. Federal Election Commission (2010)…
Cynical liberal politicians like Steyer have a long history of abusing the Citizens United case by making it sound like a corporate takeover of American politics. In reality, that decision allowed groups of individual people to join together and spend money to publish books, pamphlets, or video ads on political issues. It allowed for more free speech in politics, not a corporate takeover.
Yet, showing a picture of Mitt Romney (evoking Bain Capital), Steyer declares, “The lawyers have basically gotten the Supreme Court to say that corporations are people and therefore they have all the rights in the Constitution given to people. Now obviously corporations don’t have hearts, or souls, or futures. They don’t have children. They have a short time frame and they really care about just making money. If you give them the unlimited ability to participate in politics, it will skew everything because they only care about profits.” …
“Almost every single major intractable problem, at the back of it you see a big money interest for whom stopping progress, stopping justice, is really important to their bottom line.” …
“You’ve got to take the corporate control out of our politics. All these issues go away when you take away the paid opposition from corporations who make trillions of extra dollars by controlling our political system.”
The States
Gotham Gazette: Cautious Optimism Among Reformers After State Public Campaign Financing Commission Named
By Ethan Geringer-Sameth
“The law charges the commissioners named today with a historic task: design a public financing system that incentivizes candidates to seek more small donations. If they do it right, their system they create will give New Yorkers a stronger voice in Albany,” wrote Larry Norden, director of the Election Reform Program at the Brennan Center for Justice, in a statement after the announcement. “If the commissioners do it wrong, their system will fail, and Albany’s status quo will remain.”
Doing it “right,” according to Norden and the Brennan Center, as well as many other advocates, means having a large public match in both primary and general elections, low qualifying thresholds, and low contribution limits for individuals…
“New York’s electoral system is in desperate need of reform. Dark money routinely pours in to control public opinion, misinform voters, and benefit special interests,” Senate Majority Leader Andrea Stewart-Cousins, a Democrat, wrote in a statement accompanying appointments to the commission, which also cited related accomplishments from earlier this year, like “closing the LLC loophole” and confidence that the commission will design a system to make New York elections “fairer.” …
“If the Commission listens to the experts who have looked at this issue over the decades, they will implement a robust matching system that offers at least six dollars in matching funds for every small dollar raised in primaries and general elections, lowers contribution limits and restores New Yorkers faith in democracy,” the Fair Elections for New York coalition, made up of dozens of advocacy groups and labor unions, wrote in a statement after last week’s announcement. “If the Commission does not listen to these experts, the Legislature must step in and use its power to ‘amend or abrogate’ the Commission’s recommendations.”
