The Courts
Politico: Court pares back federal Anti-Riot Act
By Josh Gerstein
A federal appeals court has narrowed an anti-riot law the Trump administration is wielding to bring federal charges against individuals accused of fueling civil unrest following the death of George Floyd…
However, the Richmond-based 4th Circuit Court of Appeals upheld the use of the federal statute against two California men convicted of spurring violence in connection with the white supremacist Unite the Right rally in Charlottesville…
The three-judge appeals court panel unanimously concluded that language in the Anti-Riot Act that makes it a crime to “encourage,” “promote” or urge a riot is unconstitutionally overbroad because it encompasses speech protected by the First Amendment…
Last year, a federal judge in Santa Ana, Calif., ruled the entire federal Anti-Riot Act unconstitutional because of the same free-speech concern. Based on that ruling, the judge tossed out a criminal case filed there against three other alleged members of the Rise Above Movement who did not travel to Charlottesville. Prosecutors have appealed that decision to the San Francisco-based 9th Circuit.
The ruling Monday from the 4th Circuit does not go as far, leaving in place federal authorities’ ability to use the law against individuals who “organize” or “incite” a riot.
WWMT: Lawsuits accuse Gov. Whitmer, Secretary of State Benson of violating election integrity
By Callie Rainey
Two nonprofit organizations filed state and federal lawsuits Monday accusing Michigan Gov. Gretchen Whitmer and Secretary of State Jocelyn Benson of silencing political speech and endangering the integrity of this year’s elections – through the use of emergency orders and decisions related to voting during the coronavirus pandemic.
“Good intentions or not, political speech has been silenced,” said Phill Kline, director of The Amistad Project of The Thomas More Society. The society is a conservative, not-for-profit pubic interest law firm based in Chicago, and is representing the groups that filed the lawsuits, One Nation and the Election Integrity Fund…
The second lawsuit, filed in U.S. District Court in Western Michigan, claims that Whitmer, through emergency orders prohibiting public gatherings, is illegally preventing important campaign activities such as rallies and candidates meeting voters face to face…
The suit filed against Whitmer claims that the governor’s threatof jail time against people in Wayne County who sought to host political rallies and election irregularities during the Aug. 4 primary prohibited candidates and political parties from sharing their message with voters.
“The rights of the citizenry to assemble and speak in pursuit of jointly held political goals as enshrined in the First Amendment are essential to our democracy,” Kline said.
Politico: TikTok sues Trump in attempt to stave off ban
By Steven Overly
TikTok sued President Donald Trump on Monday for essentially banning its popular video-sharing app in the U.S., arguing that an executive order he signed this month was put together in haste without regard for the company’s rights.
In the suit, TikTok contends that the administration has not proven that the app poses a national security threat because of its parent company’s roots in China. It says Trumpabused a law that grants him the authority to disrupt global business to address extraordinary threats. And it takes aim at Trump’s public demand that any company purchasing TikTok pay “a lot of money” to the U.S. Treasury, saying he is violating the Fifth Amendment’s prohibition on government seizures of property without due process.
“The President’s actions clearly reflect a political decision to campaign on an anti-China platform,” TikTok’s complaint says, citing his use of terms such as “China virus” to describe the global coronavirus pandemic.
The suit, filed in U.S. District Court in California, also names the Commerce Department and Secretary Wilbur Ross as defendants. It asks a judge to block enforcement of Trump’s Aug. 6 order.
Washington Times: Project Veritas sues to overturn Oregon law preventing undercover journalism
By Valerie Richardson
Project Veritas filed a lawsuit Monday challenging Oregon’s law barring recording without first obtaining the permission of all parties, accusing the state of “punishing the gathering and publication of truthful news in the name of privacy.”
The lawsuit filed in federal court in Portland said that but for Oregon’s law, Project Veritas would seek to embed its undercover investigators with protesters and fringe groups to collect information about the leftist rioters besieging the city for nearly three months.
“We are seeking to strengthen watchdog journalism by overturning an unconstitutional law criminalizing the kind of corruption-exposing journalism which holds the powerful accountable across the country,” said James O’Keefe, Project Veritas founder and president, in a statement.
Thirty-six states have one-party recording laws, which allow audio and video recording as long as one party is aware of it, according to Justia.com, but Oregon is an “all-party consent state” where those recording others without their permission may face misdemeanor charges.
Reason (Volokh Conspiracy): Short Circuit: A Roundup of Recent Federal Court Decisions
By John Ross
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice…
After the Supreme Court decided Citizens United v. FEC, nonprofits that are not generally required to disclose their donors began running political ads. Watchdog group sues the Federal Election Commission, alleging that federal law requires disclosure of donors to any group spending more than $250 on such ads and that the FEC is failing to enforce this requirement. FEC: We interpret the law to require disclosure only for contributions that are earmarked for political ads. D.C. Circuit: Nope. If a nonprofit spends more than $250 on political ads, it has to disclose the name of everyone who has given it more than $200 in the relevant reporting period.
Congress
Politico: Hotels wrote checks to lawmakers who helped them in push for relief
By Theodoric Meyer
When more than 100 lawmakers sent a letter in June to Treasury Secretary Steven Mnuchin and Federal Reserve Chair Jerome Powell, it was a lobbying victory for the battered hotel industry…
Just two days after the lawmakers sent the letter, the American Hotel & Lodging Association’s PAC cut a check for $5,000 to the campaign of Rep. Van Taylor (R-Texas), the letter’s lead signer. The PAC – known as HotelPAC – also gave $5,000 to Taylor’s leadership PAC and wrote checks to the campaigns of two more of the letter’s first four signers in the days before the letter went out: Reps. Andy Barr (R-Ky.) and Al Lawson (D-Fla.). The PAC had never donated to any of the lawmakers before June, campaign finance records show. In total, HotelPAC gave more than $91,000 to 18 of the 105 lawmakers who signed the letter – including eight who had never received an AHLA donation before – in the days before and after they sent it on June 22.
AHLA and several of the members of Congress who signed the letter said the timing of the donations was coincidental. A Taylor spokesperson said it was “absolutely ridiculous” to ask whether there was a connection between the contributions and Taylor’s decision to send the letter.
Mercury News: Why America needs a strong Honest Ads Act
By Ann Ravel
[I]t’s time to revive and pass the Honest Ads Act – with a few changes. For all its strengths, it doesn’t go far enough, especially given the poisonous internet advertising tactics seen in recent years. In particular, it should:
* Amend the definition of electioneering communications to include paid internet and digital ads whenever they run. The act’s current version mimics the original disclosure law that applied to broadcast media, allowing regulation of communications that are close in time to the primary and general elections. We know, though, that electioneering communications in 2016 that had the most pernicious effects on the electoral process began over a year prior to the election.
* Be applicable to all paid internet ads where money is spent to produce the ads, pay for microtargeting of the ads, pay for bots, algorithms, individuals or groups to spread the ads, as well as to paying the platform to place the ad. The amount and sources of all those expenditures should be disclosed.
* Require the auditing of platforms’ public ad databases by regulators and researchers to assure compliance with the Act. And enforcement should be in the hands of federal agencies with teeth, such as the FBI’s Cyber Crimes Division.
FEC
MLive: Michigan Democrats claim John James solicited support from ‘dark money’ group
By Malachi Barrett
The Michigan Democratic Party filed a complaint alleging Republican U.S. Senate candidate John James attempted to solicit financial support from political organizations Monday.
The complaint is the second charge MDP filed with the Federal Elections Commission against James’ campaign this election cycle…
The latest complaint concerns an internal memo from the James campaign that was published by Politico. The finance memo argues James is in a strong position to win the election, partly because he is consistently outraising his Democratic opponent, but has “no corresponding conservative ally” buying media ads.
“With the proper resources, John James is poised to become the next U.S. Senator from Michigan,” the memo states.
The MDP claims the memo was given to the press so it would be released in a news article and reach independent political groups that aren’t allowed to coordinate with candidates. The complaint contains no evidence showing how Politico obtained the memo, but Democrats claim James’ campaign likely had a hand in ensuring it was published.
The same day the memo was published online, news broke about a Political Action Committee reserving $4.5 million in television, cable and radio ads to attack Peters. The ads were financed by One Nation, a political nonprofit that is not required to disclose its donors.
Detroit News: GOP group airs nearly $3M in ads for James as Democrats file complaint
By Melissa Nann Burke and Craig Mauger
There are grounds in the complaint against the [John] James campaign to warrant an investigation by the FEC, said Paul S. Ryan, vice president for policy and litigation at Common Cause.
“It’s not a slam dunk based on what’s in the memo, but the optics certainly look horrible,” said Ryan, who studies and practices federal campaign finance law.
“This type of activity is very troubling. This kind of candidate encouragement of unlimited, potentially undisclosed outside group spending presents the threat of corruption in politics,” he added.
“Hypothetically, even if this outside group and candidate did not break the law, this interaction and encouragement of outside spending cannot be what the Supreme Court intended in Citizens United when it unleashed unlimited money in federal elections but said, explicitly, there’s nothing to worry about, America, because this money is independent of candidates and doesn’t pose the threat of corruption.” …
“I think the complaint has merit, but the law that they’ve cited relates specifically to the solicitation and direction of contributions, and what they are complaining about is the campaign encouraging expenditures,” he said. “That legal wrinkle could end up being problematic down the road.”
Ryan said he would also have asked the FEC to investigate whether any spending by dark-money groups made as a result of the James memo were the result of coordination between the campaign and an outside group in violation of federal rules.
Media
Washington Times: Part of the media plan: Censoring the GOP convention
By Jennifer Harper
The major broadcast and cable networks were mighty friendly to Democratic presidential candidate Joseph R. Biden and the splashy national convention which provided his debut in the political arena last week.
Here is the question that follows: Will media coverage of the Republican National Convention be as generous, or will the networks end up censoring President Trump and his campaign message, or compromising the coverage itself? …
“This week is a test for those in the television news business: Are they still trying to deliver ‘news,’ which means letting their audience actually witness important events for themselves (albeit with analysis and commentary from the networks)? Or are they in the ‘we’ll-only-show-what-liberals-want-us-to-show’ business? Last week, CNN and MSNBC let their audiences see roughly 90% of the Democratic video show that stood in for this year’s national convention, without any meaningful interruptions,” writes Rich Noyes, research director for the Media Research Center.
“If those organizations are still in the news business, that’s exactly how much of the Republican Convention you’ll see on those networks, too,” he says.
The Hill: CNN cuts away from Trump address to GOP delegates, compares him to Pontius Pilate
By Joe Concha
CNN cut away from President Trump’s address to delegates at the Republican National Convention in Charlotte, N.C., on Monday, with anchor Anderson Cooper arguing that the president’s speech was composed of “the most recent greatest hits and false statements” regarding mail-in voting…
“It underscores the challenge, Anderson, for us in the news business and really for people watching at home if you are a voter who has not decided – if you are a voter who is not firm in your decision – to watch the next four days, because this is a sad thing to say but a lot of what you just heard from the president of the United States is wrong, misleading, or outright lies,” anchor John King added…
CNN’s “Reliable Sources” said prior to the start of the Republican National Convention on Sunday that it would be cutting in to fact-check remarks.
The network didn’t cut in to any speeches for fact-checks at the Democratic National Convention last week, drawing criticism from mostly those on the right.
Online Speech Platforms
CNN Business: Facebook prepares legal action against Thai government’s order to block group
By Rishi Iyengar
Facebook is planning legal action after the Thai government forced it to block a group deemed critical of the country’s monarchy.
The social media company said it was “compelled” by the Thai government to prevent users in Thailand accessing Royalist Marketplace – a group with 1 million members featuring posts about the Thai royal family. Facebook said the government had deemed the content “to be illegal.”
“Requests like this are severe, contravene international human rights law, and have a chilling effect on people’s ability to express themselves,” a Facebook spokesperson said in a statement to CNN Business. “We work to protect and defend the rights of all internet users and are preparing to legally challenge this request.” …
Facebook said it has been under pressure from the Thai government to restrict some types of political speech in the country, with the government threatening criminal proceedings against Facebook’s representatives in Thailand.
NCSL: Political Digital Ads: Disclosure, Free Speech and Legislation Webinar
Tuesday, Sept. 1, 2020/2 p.m. ET/ 1 p.m. CT/Noon MT/11 a.m. PT
Learn about the current state of digital campaign ads, including how global entities such as Facebook, Twitter and Google are adapting to different states’ requirements. The speakers will present different perspectives on ensuring free speech while maintaining transparency.
Moderator:
-Mandy Zoch, policy specialist, NCSL Elections and Redistricting Program
Speakers:
-Ronald Jacobs, Digital Advertising Alliance
-David Voorman, Americans for Prosperity
-Jared DeMarinis, Maryland State Board of Elections
Candidates and Campaigns
Wall Street Journal: Trump Re-Election Campaign Dwarfs 2016 Effort
By Rebecca Ballhaus
As President Trump prepares this week to accept the Republican nomination for president for a second time, new campaign-finance records shed light on the sheer magnitude of his operation. Through the end of July, with more than three months to go before the election, the Trump campaign already had spent $323 million, more than the $321.8 million it spent in the entire 2016 election cycle-and more than the $258 million Mrs. Clinton’s campaign spent through July 2016…
Mr. Trump entered the general election four years ago with the most thinly funded and staffed campaign for a nominee in recent memory, which left him nearly entirely reliant on the Republican Party for the basic functions of a campaign…
The Trump campaign’s expense report this time around looks considerably more traditional…
Incumbent presidents traditionally have larger campaigns-though not usually by such a large margin-because they are able to raise more money…
Yet the campaign’s hefty spending has raised eyebrows among some Trump allies, who wonder where the money is being spent as national polls show Mr. Biden with a substantial lead. A Wall Street Journal/NBC News poll conducted in mid-August showed the Democratic nominee with a nine-point edge.
The States
LA Times: Gascón campaign accuses D.A. Lacey of flouting election law, but election experts disagree
By James Queally
In the latest round of sniping in a bitter battle to decide Los Angeles County’s top prosecutor, George Gascón accused Dist. Atty. Jackie Lacey of violating election laws Monday, a claim met with skepticism by legal experts.
In a letter to the district attorney’s office, Gascón’s campaign alleged Lacey violated state criminal law and an election code by using public resources and displaying the L.A. County seal in campaign communications. Gascón’s campaign alleged the violations occurred as Lacey appeared on TV to debut an advertisement critical of Gascón and during two campaign events later that month, including one where she sought an endorsement.
In each instance, Lacey appears in front of a banner that displays the county seal and insignia of the district attorney’s office…
Lacey’s campaign coordinator, Walter Koch, said in each case Lacey was in her living room. She was simply using pictures from her office as a background on Zoom…
The California election code that Szabo cited only refers to campaign mail and documents, not television appearances or video chats such as the incidents Gascón’s campaign referred to in the letter. Two election law experts, [Bob Stern and Rich Hasen], also dismissed the Gascón campaign’s complaints as dubious.
Orlando Sentinel: The cancer of faceless campaign contributions, and Florida’s failure to treat it
By Orlando Sentinel Editorial Board
Disclosure as the cure for near unlimited money is the big lie of Citizens United, made worse by weak-kneed state laws like Florida, which sanctions the equivalent of campaign money laundering.
In Broward County, for example, campaign attacks on incumbent state Sen. Perry Thurston, an influential Democrat who faced three primary challengers, were paid for by a political committee calling itself “Progressives.” That committee’s chairman and treasurer is William S. Jones, the former chairman of the Alachua County Republican Party.
Progressives got most of its money – $30,000 on July 4 – from a political action committee called “Social Justice,” which received $30,000 on July 3 from the “Foundation for a Safe Environment,” a nonprofit whose tax return said it was headed by the same person who chairs the Progressives Committee, William S. Jones. How circular.
The money trail goes cold after that because nonprofits don’t have to publicly disclose their donors.
See how the game works?
In the end, all we really get to see are a series of transactions, a shell game between committees and nonprofits usually under no legal obligation to reveal the true source of the money behind these campaigns…
If they cared, there’s a lot Florida lawmakers could do. For starters they could outlaw the practice of washing donor money by letting committees contribute to other committees. That way, if a person or a company or an institution wants to support a committee’s cause, they can write a check and let the public judge whether they’ve done a good thing or not.
