SCOTUS/Judiciary
Wall Street Journal: How Wisconsin Prosecutors Became Campaign Partisans: Their raids on conservatives have chilled political speech and amount to a huge donation to Democrats.
By RICHARD M. ESENBERGMembers of Wisconsin conservative advocacy groups tell me that they are reluctant to speak out on the issues, and that donors are wary of donating, when the price may be having their house ransacked and their private affairs dragged into court cases. The fact that these people asked for anonymity when speaking with me is indicative of how successful Mr. Chisholm has been in discouraging conservative speech in Wisconsin.A conservative acquaintance who is a longtime political donor told me that he backed off giving money to the organizers of a political rally because candidates for office were going to speak at the event—he feared that his donation would have left him open to legal trouble for having “coordinated” messaging with the candidates. I note that Mary Burke recently spoke at “Fighting BobFest,” a liberal-issues rally sponsored by two Madison-area media companies that apparently felt unworried about getting on the wrong side of prosecutors.Courts have long recognized that political speech is fragile and can be chilled by laws that are too broad and regulators who are overly zealous. Potential speakers in Wisconsin are now well aware of the prosecutors’ strong-arm tactics. In the event that the state Supreme Court finally rules on Mr. Chisholm’s appeal, the possibility that his investigation would be restarted leaves them fearful of being next on his list. This is a sorry state of affairs: Both the right to speak on issues and to speak—even to “coordinate”—with elected officials about those issues is constitutionally protected. Illegal coordination must be narrowly and clearly defined, but Wisconsin law doesn’t do that, and the prosecutors have taken full advantage of the law’s vagaries.
More Soft Money Hard Law: Lying in Political Campaigns and the Judicial Response
By Bob BauerThe District Court that struck down Ohio’s false campaign speech statute won few points for craftsmanship. See Susan B. Anthony List v. Ohio Elections Comm’n, No. 1:10-CV-720, 2014 WL 4472634 (S.D. Ohio Sept. 11, 2014). In straightforward terms, the court concluded that the government may not police the truth or falsity of political campaign speech. It is an opinion seemingly prepared for a general audience, its sentences plastered in bold type or energetically underlined. At one point, the court consciously pitches its presentation to a wider lay readership, patiently explaining that “lawyers and courts call [laws like Ohio’s] ‘overbroad’ and hence ‘unconstitutional.’” Idat *1. For all this earnestness, Rick Hasen critiqued the Ohio decision as lacking subtlety, and he was joined by Eugene Volokh in this skeptical view of the court’s work.These reservations are sound on one level but, on another, the merits of the opinion should not go overlooked. There is something to be said for clarity on the fundamental point here: with few and clear exceptions—such as a candidate falsely claiming to be the incumbent—the government should not be invited to make systematic judgments about who is or is not lying in the course of political debates. The Ohio court repeats this several times, much to its credit. It is keeping the key point before the reader, refreshingly eschewing the windiness and showy scholarship laden with thickets of footnotes that is found in too much opinion writing.
Independent Groups
Sacramento Bee: Expand free speech by limiting political money
By Jessica A. LevinsonBut I have something to tell you. There is no tooth fairy, Santa Claus does not exist, and money is not speech. Seriously, it just isn’t. Money facilitates speech. Money allows politicians and political committees and others to reach a wider audience with greater frequency. Let’s stop this nonsense. Money and speech should not be treated as equivalent.Restrictions on money spent in campaigns can actually promote speech interests. Yes, that’s right. Campaign finance laws and the First Amendment can live side by side, and restrictions on political money can foster a broader and more elucidative political marketplace.When campaign contributions and expenditures are limited, we could hear from a greater diversity of speakers. Instead of having political campaigns dominated by wealthy interests and individuals who want to flex their checkbooks, we could hear from others who cannot, or do not want to, spend large sums to reach us.
Disclosure
National Review: The Influence Loophole
By Matthew ContinettiThe report generated well-deserved outrage. A rule change has been introduced in the House to require think tanks to disclose sources of foreign funding when they testify before Congress. It’s a solid proposal. But it does not go far enough. Congress should pass a law making contributions to think tanks by foreign governments and foreign nationals subject to FARA. What else could that money be for, if not to influence policy and public opinion to further foreign interests? Here is one area where transparency is vital. Let the money be disclosed. Or let it dry up.
Candidates, Politicians, Campaigns, and Parties
Politico: GOTCHA! How oppo took over the midterms
By KENNETH P. VOGEL and BYRON TAUGotcha stories — ranging from those tangentially related to issues of the day to the completely ephemeral and even absurd — have been front and center in an abnormally large number of top races this year. And many of the most memorable hits bear the hallmarks of opposition research — the unglamorous grunt work of combing through public records and, increasingly, tracking candidates in search of a compromising vote, court filing, financial transaction or quote.In an election in which candidates have mostly dodged the big issues facing the country, the dark art known as “oppo” seems to be filling the void. And the trend lines suggest oppo’s golden age may just be beginning.
Times-Picayune: Democrats love their campaign money but not anyone else’s
By James VarneyNevertheless, Democratic leaders continue to vomit pious yet phony denunciations of money in politics. Senate Majority Leader Harry Reid, D-Nev., can hardly stand some Americans exercising cherished freedoms enshrined in the Bill of Rights. Money, in Reid’s mind, should be unlimited for the Left, drought-like for the Right.Now we see a Democratic operative, one of those shadowy, win-at-all-costs partisans at it again in an accusation against Sen. David Vitter, R-La. Vitter, taking advantage of extant law, is packing the war chest for his 2016 gubernatorial run just as Obama and Hillary Rodham Clinton did their presidential bids.Apparently stunned a conservative can raise as much cash as a liberal, a partisan warrior has filed an ethics complaint based on contributions that all the world can see. They have all been reported, or else this liberal operative wouldn’t have been able to gripe.
Lobbying and Ethics
Wall Street Journal:Lawmakers Plan to Introduce Bill Regulating ‘Political Intelligence’
By Brody MullinsWASHINGTON—Lawmakers plan to introduce legislation in the House on Thursday that would for the first time shed light on the political-intelligence industry.The new regulations, which are modeled after the disclosure rules for lobbyists, would require individuals who seek information about coming government announcements for Wall Street investors to disclose their names, clients and fees.The bill, called the Political Intelligence Transparency Act, also would prohibit public officials from working in the political-intelligencebusiness for one or two years after leaving the government, depending on their role in the House, Senate or administration.
State and Local
California –– Washington Post: Cashing In on Voting: Los Angeles’s plan of paying people to vote is so loopy it could only have been conceived by government.
By George WillThe pursuit of perfection is usually foredoomed, but the Los Angeles City Ethics Commission, which has a latitudinarian understanding of ethical behavior, has a perfectly awful idea. It is urging the City Council to consider ways of paying — starchier ethicists might call it bribing — people to vote.Some ideas are so loopy that they could only be conceived by governments, which are insulated from marketplace competition that is a constant reminder of reality. And governments are generally confident that their constituents need to be improved by spending the constituents’ money. The supposed problem for which the “pay the voters” idea purports to be a solution is this: Few Los Angeles residents are voting.
Connecticut –– NY Times: Rowland, Ex-Connecticut Governor, Is Convicted in Campaign Finance Case
By ALISON LEIGH COWANLegally, Mr. Rowland could have worked for a candidate’s campaign and received payment, had it been properly reported. Mr. Rowland’s problem, as Mr. Mattei told the jury, was that candidates valued his experience but his criminal history made the association too risky.“Hiring John Rowland on your campaign is like giving your opponent a loaded gun and saying, ‘Shoot me,’ ” Mr. Mattei said, quoting the testimony of one of Ms. Wilson-Foley’s campaign aides.
Virginia –– Washington Post: Ex-Va. governor Robert McDonnell asks for acquittal of public corruption charges
By Matt ZapotoskyFormer Virginia governor Robert F. McDonnell on Thursday asked a federal judge to acquit him of the public corruption charges of which he stands convicted or at least grant him a new trial — arguing that the guilty verdicts stemmed from “insufficient evidence” and “numerous legal errors during the proceedings.”The arguments — at least those that are public so far — are ones that McDonnell’s attorneys raised even before the trial of him and his wife began, and experts say U.S. District Judge James R. Spencer is likely to reject them again. McDonnell (R) can still appeal the case after his sentencing, which is scheduled for Jan. 6.
Virginia –– Daily Caller: Ken Cuccinelli Vs. The Grifters
By Matt K. LewisIn a move that could shake up the conservative-outside-group-world, former Virginia Attorney General Ken Cuccinelli is suing a conservative political action committee called Conservative StrikeForce PAC for allegedly raising millions of dollars for his campaign, and spending only a small fraction of that on his race. According to a report on the lawsuit: “(A) substantial proportion of the approximately $2.2 million that defendants raised through political fundraising in 2013 was directly attributable to solicitations invoking Ken Cuccinelli, as Virginia’s gubernatorial election was the marquee contested race of American politics in 2013,” the lawsuit states. “Defendants, however, have admitted that they did not use the money raised invoking Ken Cuccinelli to actually aid the Cuccinelli campaign, either through direct contributions to the campaign or through independent expenditures in support of the campaign, other than a single $10,000 contribution to the campaign on October 4, 2013 – which amounted to less than one-half of one percent of the approximately $2.2 million that defendants raised in 2013.”
