In the News
Colorado Politics: Experts, candidates testify in lawsuit attempting to block Colorado campaign contribution limits
By Michael Karlik
A collection of former and current Republican candidates testified in federal court on Wednesday about the struggles they faced running campaigns with Colorado’s constitutionally-mandated contribution limits in an attempt to convince a judge to block the enforcement of those caps heading into the 2022 election…
Attorneys for the conservative group Advance Colorado and the Washington, D.C.-based Institute for Free Speech filed suit on Jan. 28 against Secretary of State Jena Griswold, alleging that Article 28, which voters approved as a state constitutional amendment in 2002, set contribution limits to political candidates so low that they violate the First Amendment and federal court precedent.
Although complex, there are two key parts of Article 28 that are under dispute.
First, there are dollar caps on what a candidate can receive from a single contributor in an election cycle, amounting to $1,250 for “Tier 1” candidates running for statewide office, and $400 for “Tier 2” offices, including state legislative seats. Second, if a candidate opts to voluntarily restrict the total money spent on their campaign, they are eligible to collect donations in twice those amounts from individuals.
The plaintiffs have advanced a range of justifications for challenging the constitutional contribution limits. They argue that Colorado’s caps are among the lowest of any state, that the inflationary adjustments have not kept up with actual inflation, and that the caps do not advance a legitimate interest, such as combating corruption.
“Colorado’s contribution limits are so low that they impede the ability of candidates to amass the resources necessary for effective advocacy,” the lawsuit alleges.
[Ed. note: Learn more about our case, Lopez v. Griswold, here.]
New from the Institute for Free Speech
President Biden Asks Congress to Censor Political Speech in First State of the Union Address
By Nathan Maxwell
The State of the Union address is the president’s yearly opportunity to discuss solutions to the nation’s toughest problems before Congress. In President Joe Biden’s first address last week, he urged Congress to shut up Americans’ political voices.
In asking Congress to pass the Freedom to Vote Act and the DISCLOSE Act, Biden was not endorsing a mere voting reform package. Hundreds of pages of the Freedom to Vote Act, the successor of H.R. 1/S. 1’s “For the People Act,” would:
- Endanger nonprofit supporters by publishing their names and addresses online.
The measure’s DISCLOSE Act would force nonprofits that speak about public policy to publicly expose the names and addresses of many of their supporters. That information would be permanently stored in a searchable government database. Anyone with a WiFi connection could quickly identify which causes you’ve supported and where you live.
Some supporters’ names could actually be forced to appear right on the face of a group’s ads – including ads about legislation, rather than campaigns or elections – which will deter support for groups that seek to inform political leaders of their members’ needs and interests. And because supporters of a nonprofit don’t endorse its every utterance, those Americans run the risk of having their names plastered on messages they don’t even approve of or see in advance.
The Courts
Associated Press: Kemp appeals ruling on leadership committee funds in primary
By Kate Brumback
Georgia Gov. Brian Kemp is appealing a federal judge’s ruling that says a “leadership committee” the governor created under a new state law cannot spend money to get him reelected during the Republican primary.
U.S. District Judge Mark Cohen’s ruling came last month in a lawsuit filed by former U.S. Sen. David Perdue, who’s challenging Kemp in the primary. Kemp and his leadership committee on Wednesday filed a notice of appeal to the 11th U.S. Circuit Court of Appeals.
The law, passed by state legislators last year and signed by Kemp, allows certain top elected officials, including the governor and party nominees, to create leadership committees that can raise campaign funds without limits, including during a legislative session. Just after the law took effect in July, Kemp created the Georgians First Leadership Committee.
Perdue and his campaign allege in the suit that the law gives Kemp an unfair fundraising and spending advantage in the primary.
Axios: Scoop: RNC to sue Jan. 6 committee over Salesforce subpoena
By Jonathan Swan, Lachlan Markay, and Sara Fischer
The Jan. 6 select committee has subpoenaed Salesforce, the customer relationship management giant and a major Republican National Committee vendor, for sensitive information about the RNC’s fundraising, Axios has learned.
The RNC plans to sue to stop the disclosure, according to three sources with direct knowledge of the dispute. An advance copy of the complaint filed was reviewed by Axios…
The Feb. 23 subpoena, reviewed by Axios, shows the intensity of the panel’s efforts to link the assault with official fundraising and engagement efforts — and to learn precisely who was crafting and sending emails and how they impacted supporters who read them…
The RNC lawsuit characterizes the subpoena as a political ploy that is “staggeringly broad and unduly burdensome” and a “fishing expedition” designed to expose confidential information about donors and fundraising practices…
“The RNC and its millions of supporters face an unprecedented threat that will undoubtedly chill their First Amendment rights and expose the RNC’s supporters to reprisals and harassment,” the document says.
Turning over the data would provide political opponents “with an all-access pass to confidential RNC political strategies and the personal information of millions of its supporters.”
Washington Post: An increase in libel suits shows why we need to keep protections for the news media
By George Freeman and Lee Levine
In New York Times v. Sullivan, decided on March 9, 1964, the Supreme Court wisely recognized that news organizations need constitutional protection against libel suits to ensure “uninhibited, robust, and wide-open” debate. Today, the safeguards established by that landmark case are under a dangerous two-pronged assault.
First, the past several years have seen a worrisome increase in libel lawsuits brought by a broad array of political candidates, elected officials and domestic corporate titans, not to mention foreign autocrats and oligarchs.
Second, despite this torrent of litigation, the Supreme Court might be poised to weaken constitutional protections for the news media — “opening up the libel laws,” as Donald Trump once urged.
Two justices have called for Sullivan to be reconsidered, and they might find takers among their colleagues.
Donor Privacy
Philanthropy Roundtable: Chilling Support to the Canadian Trucker Freedom Convoy
By Patrice Onwuka
Freezing temperatures, forcible removal and police presence did not break the spirits of either of the convoy’s participants, but the Canadian government and a willing media staked out a new strategy: freezing financial and material support. Americans–whether or not they agree with the convoy–should be alarmed at the implications of public and private efforts to dox and harass donors who supported what some consider a controversial cause. Philanthropic freedom depends on the right to give to any causes an individual chooses and to do so privately. Not only are the philanthropic rights of Canadian donors at risk, but so are those of many Americans who have given even one dollar to the convoy…
Donor privacy is critical to philanthropy for many reasons including the fear of harassment. In the U.S., state legislatures are actively attempting to force greater donor disclosure with no regard for the repercussions that may follow.
Candidates and Campaigns
Washington Post: Arizona lawmaker speaks to white nationalists, calls for violence — and sets fundraising records
By Beth Reinhard and Rosalind S. Helderman
[Arizona state Sen. Wendy Rogers’s] trajectory shows the political and financial incentives of going to extremes. After losing her earliest races as a mainstream Republican, she moved further and further right until she beat an incumbent by campaigning as the more conservative choice. Now, after a year of fanning bogus allegations about election fraud and other false claims, she is the most successful fundraiser in the Arizona state legislature.
She raised nearly $2.5 million in 2021, outraising even statewide candidates for governor, attorney general and secretary of state, according to campaign finance records. Nearly $2 million of that money came from small donations from outside Arizona as she traveled the U.S. calling for the 2020 election to be overturned and demanding audits of the vote without credible evidence of fraud…
Her shift to the far right has coincided with an outpouring of grass-roots, small donors. Nearly 40,000 individuals contributed to her campaign last year, of which only a handful gave the $5,300 maximum. That means Rogers can keep dipping into this large pool of donors in 2022.
In a feat remarkable for one of 30 state senators, Rogers is outraising statewide incumbents such as Republican Attorney General Mark Brnovich, who is campaigning for U.S. Senate and has raised about $1.8 million.
The States
Courthouse News: Exxon Mobil fights to shield climate disinformation as free speech
By Daniel Jackson
The steady disintegration of the appeal began only moments into oral arguments at the Supreme Judicial Court of Massachusetts considers Exxon Mobil’s attempt to shield itself under a law that protects people or organizations from being sued for making statements in the public interest.
Anti-SLAPP laws, short for strategic lawsuits against public participation, are common in the U.S., though more commonly applied to newspapers, television reporters and other news media organizations.
ExxonMobil has argued in briefing that the law applies to it because its views on energy policy and climate change are at odds with those of the Massachusetts attorney general who hit it with a 211-page fraud complaint in 2019.
Associate Justice Dalila Wendlandt noted Wednesday that anti-SLAPP protections are meant to prevent private parties from “using the court system in order to punish petitioning activity.”
“I’m wondering whether you think that that makes any sense to shut down enforcement actions on behalf of the people of the Commonwealth against fraudulent activity by using the anti-SLAPP statute,” Wendlandt asked Exxon Mobil’s attorney Justin Anderson.
Anderson said the company was merely using a procedure authorized by the Massachusetts Legislature.
“The idea that the government can be trusted never to bring legal action against someone because they disagree with their speech runs counter to the fundamental concept and the fundamental core principle behind the First Amendment itself,” Anderson said.
