In the News
The Fulcrum: Meet the reformer: David Keating, leader for the right on campaign finance rules
Closing in on nine years as president of the Institute for Free Speech, David Keating long ago cemented his status as one of the foremost conservative forces in the money-in-politics debate. The nonprofit’s aim is to safeguard First Amendment rights, particularly unfettered political speech, and views deregulation of campaign finance as central to that goal. Keating took charge after a similar group he started, SpeechNow.org, won a federal lawsuit to end donation and spending limits on independent political groups – thus creating super PACs. He had top posts at two prominent fiscal conservative organizations, the Club for Growth and the National Taxpayers Union, earlier in a D.C. advocacy career dating to the 1980s. His answers have been edited for length and clarity.
What’s democracy’s biggest challenge, in 10 words or less?
DK: Stopping government from discouraging dissent.
Describe your very first civic engagement.
DK: In high school, I learned about machine politics. My friends who wanted to become summer lifeguards had to be Republicans. I thought that was ridiculous, so I decided to register as an independent. Still am…
How does your identity influence the way you go about your work?
DK: I identify as an independent person…
To promote and defend independent thought, much of my professional work has been protecting the freedoms to speak, publish, join groups and petition government for redress of grievances. Without these freedoms, we can’t obtain the information we need to understand the world or act effectively to make it a better place.
Billboard Insider: Thomas Wins $690,000 in Legal Fees
By Dave Westburg
Remember William Thomas, the man who successfully challenged Tennessee’s sign code and forced the Tennessee legislature to pass a sign code revision to moot the challenge. The Tennessee Star reports a court has ordered the Tennessee to pay $690,000 in Thomas’s legal fees. Thomas was represented by the Institute for Free Speech.
Insider’s take: Tennessee got in trouble because the regulations had different sets of rules for commercial/non-commercial signs. The solution (in Tennessee and Texas) was to make the sign rules dependent on whether compensation is paid to a landowner. If your state has an antiquated sign code based on on/off premise signs or commercial/non-commercial signs you should be encouraging state officials to adopt the Tennessee or Texas fix.
ICYMI
As news reports indicate, Judge Amy Coney Barrett of the Seventh Circuit is on the short list to be nominated to the U.S. Supreme Court to fill the vacancy created by the passing of Justice Ruth Bader Ginsburg. Barrett has been in this position before. When we originally examined her record in July 2018, prior to the nomination of Brett Kavanaugh to the Supreme Court, there was little to say. At that time, Barrett had been a judge for less than a year, and unsurprisingly, she had ruled on a relatively small number of appeals. None of those cases touched on the core questions of political speech and association that the Institute evaluates when reviewing potential Supreme Court justices.
In 2018, we also conducted a review of Judge Barrett’s extensive academic record. Those articles, which were the subject of controversy during her confirmation as a federal appeals court judge, did not directly address issues of free political speech and association.
Since that time, Judge Barrett has written or joined an opinion in at least three free speech-related cases worthy of commentary. We continue to review other cases in which Judge Barrett participated and may release further analyses.
- Adams v. Bd. of Educ. of Harvey Sch. Dist., 152, 968 F.3d 713 (7th Cir. 2020) (Easterbrook, J.) (3-0 decision)
- Lett v. City of Chicago, 946 F.3d 398 (7th Cir. 2020) (3-0 decision)
- Smadi v. True, 783 F. App’x 633 (7th Cir. 2019) (per curiam)
Barrett authored the opinion in only one of those cases. Reading them together, however, Judge Barrett may be willing to expand free speech protections in limited but nevertheless important contexts.
Industry-Based Contribution Bans: Should Your Line of Work Determine Your First Amendment Rights?
By Heather McGuire
In the ensuing decades since the amendments to FECA and the Court’s ruling in Buckley v. Valeo, a new and creative way to restrict speech has arrived in the form of industry-based contribution bans. These bans typically target an industry and prohibit players in that industry – and sometimes their employees – from contributing to candidates. This means that, by virtue of their profession or who they work for, some individuals are banned from contributing any amount to candidates, and sometimes even political action committees and party committees. The Supreme Court has not yet weighed in on the constitutionality of this type of limit.
Selectively restricting some Americans’ ability to engage in political debate is a ploy one might expect from a corrupt, totalitarian regime, not a free democracy. State and federal laws prohibiting political contributions from certain individuals in certain regulated industries pose both constitutional and policy concerns that should not be overlooked. This paper surveys those issues.
The Courts
Washington Post: First Amendment bails out Tucker Carlson
By Erik Wemple
A federal judge on Thursday tossed a defamation suit filed by former Playboy model Karen McDougal against Fox News over statements made by host Tucker Carlson on a December 2018 broadcast. “The Court concludes that the statements are rhetorical hyperbole and opinion commentary intended to frame a political debate, and, as such, are not actionable as defamation,” Judge Mary Kay Vyskocil noted in her ruling.
Fox News issued this statement: “Karen McDougal’s lawsuit attempted to silence spirited opinion commentary on matters of public concern. The court today held that the First Amendment plainly prohibits such efforts to stifle free speech. The decision is a victory not just for FOX News Media, but for all defenders of the First Amendment.”
In reaching her conclusion, Vyskocil credited an argument from Fox News attorneys that Carlson engages in “non-literal” commentary.
Congress
Reuters: Democrats prepare bill limiting U.S. Supreme Court justice terms to 18 years
By Andrew Chung
Democrats in the House of Representatives will introduce a bill next week to limit the tenure of U.S. Supreme Court justices to 18 years from current lifetime appointments, in a bid to reduce partisan warring over vacancies and preserve the court’s legitimacy.
Politico: Senate panel to vote next week on subpoenas for Google, Facebook and Twitter CEOs
By John Hendel
The Senate Commerce Committee plans to vote Oct. 1 on whether to subpoena three top tech CEOs after Democrats squelched hopes of pulling them in to testify that day for a hearing on the tech industry’s prized liability protections.
The Republican pressure campaign involves securing testimony from the CEOs of Google, Facebook and Twitter for a hearing about whether these Silicon Valley giants enjoy undue legal protection from consumer lawsuits over how they police the millions of posts on their networks.
FEC
“Advisory Opinions” (The Dispatch podcast): Election Law Explained
Hosted by David French and Sarah Isgur
Our podcast hosts are joined by Federal Elections Commission Chairman Trey Trainor, who explains the ins and outs of election law, foreign election interference, and why the FEC is paralyzed right now. Trainor also explains how campaign finance laws like the Bipartisan Campaign Reform Act have significantly weakened the national political parties while funneling money into the state parties in the process. “What’s happened is the smoke filled room has moved from Washington, D.C. to each of the 50 states.”
Show Notes:
-FEC Chairman Trainor’s statement on the dangers of procedural dysfunction
[Ed. note: Trainor interview begins at 37:00.]
Online Speech Platforms
CNBC: Facebook Oversight Board confirms it plans to launch ahead of U.S. election
By Sam Shead
Facebook’s much-anticipated Oversight Board has confirmed that it is planning to launch ahead of the U.S. election on Nov. 3 after being criticized for a perceived lack of action.
The board, which has been nicknamed Facebook’s “Supreme Court”, will review appeals made by Facebook and Instagram users who don’t agree with content moderation decisions, like posts being taken down or labeled as misinformation. It will have the power to overrule decisions made by Facebook’s moderators and executives, including chief executive Mark Zuckerberg…
A spokesperson for the independent Oversight Board told CNBC that it expects to start in mid to late October.
The States
Lafayette Daily Advertiser: Lawyer: Request seeking mother’s testimony in fake Antifa event lawsuit is retaliatory
By Ashley White
The lawsuit brought against John Merrifield on behalf of Lafayette Mayor-President Josh Guillory claims the Facebook events Merrifield posted, created through the Facebook page “cajUUUn Memes,” caused panic. The suit claims the posts cost the city “considerable sums of money” when officers responded to the locations mentioned in the fake events that called for Antifa-led protests…
Merrifield, who describes himself as a comedian and satirist, filed a motion last week asking a judge to dismiss the lawsuit under a Louisiana statute that prohibits efforts to suppress free speech…
In order to justify deposing Merrifield, the city-parish government equated Merrifield’s events to a “bomb threat,” [Andrew D. Bizer, Merrifield’s lawyer,] wrote. But Merrifield’s events “show that they are satire/comedy” and, even if the events were real, they had called for peaceful assembly.
“There is nothing illegal or unlawful about individuals who are opposed to fascism and other forms of extreme right-wing ideology conducting a peaceful assembly or burning flags,” Blizer wrote. “If multiple individuals in the community were afraid of the Easter bunny and brightly colored eggs, would it be illegal for Mr. Merrifield to call for a peaceful Easter egg hunt? Of course not.”
Center Square: ‘Dark money’ in politics the focus of legislation, resolutions
By Todd DeFeo
An Ohio Senate committee is considering a resolution aimed at increasing transparency in federal elections, one of several similar bills before lawmakers in both chambers of the state legislature.
Senate Concurrent Resolution 17 “is an effort to get Congress to ensure transparency and accountability in federal election campaigns,” state Sen. Teresa Fedor, D-Toledo, said in prepared testimony to the state Senate Government Oversight and Reform Committee. “We must establish as many checks and balances as possible to protect the integrity of the democratic process and maintain the trust of our constituency.
“By requiring corporations and other organizations to disclose the sources of all contributions they use to make political expenditures, as well as the recipients of all political contributions, and all independent expenditures — we can ensure transparency and stop foreign money from interfering in our election process,” Fedor added…
The resolution is one of several similar measures that lawmakers are considering.
Bangor Daily News: Maine watchdog may probe shadowy poll aimed at Democratic legislative hopeful
By Caitlin Andrews
Staff at Maine’s campaign finance watchdog are recommending an investigation of a group conducting potentially illegal polling aimed at eroding support for a progressive candidate in a competitive midcoast state Senate district.
A group calling itself Public Opinion Research has polled people in the district represented by Senate Minority Leader Dana Dow, R-Waldoboro, who is being challenged by Rep. Chloe Maxmin, D-Nobleboro, according to a Tuesday report from the Maine Ethics Commission.
The Lincoln County Democratic Committee filed a complaint with the agency about the poll, which appeared to try to push voters away from Maxmin in an online survey by saying she is “in lock step with radical liberals” and wants to bring “burdensome California and New York” policies to Maine after making a favorable statement about Dow.
Polls conducted by campaigns and for media outlets typically ask neutral questions and collect demographic information to properly weigh and tabulate results. The poll differed in both respects. Such polls are often called “push polls,” though that term is narrowly defined under Maine law.
There are different ways the poll could be illegal. Any group advocating for or against a candidate must report expenditures not coordinated with a candidate if the cost exceeds $250, while a group also must register as a political committee if they spend $5,000 or more on a state election. Paid electioneering communications after Labor Day must state who financed them.
Chicago Tribune: Chicago Ethics Board to enforce ban that would prohibit elected officials outside the city from lobbying City Hall
By John Byrne
Chicago’s Ethics Board announced Tuesday it would start enforcing a ban on elected officials lobbying City Hall at the end of the month, meaning a south suburban official likely would need to either give up his elected post or stop lobbying Mayor Lori Lightfoot and aldermen on behalf of his clients to be in compliance…
The mayor’s proposal would have rolled back the part of the statute barring people holding elected offices outside Chicago from lobbying the city…
But the Ethics Board on Tuesday released a statement saying the mayor’s ordinance apparently won’t proceed, and the new rules will be enforced starting Oct. 1.
