In the News
Bloomberg BNA: Supreme Court Set to Eye Challenge to FEC Disclosure Rules
By Kenneth P. Doyle
The Supreme Court is set to decide soon whether to review the latest challenge to disclosure requirements for political ads, which was rejected by a lower court last year (Independence Institute v. Federal Election Commission, U.S., No. 16-743, cert. petition filed 12/8/16)…
Lawyers for the Independence Institute, led by Allen Dickerson of the nonprofit Center for Competitive Politics, have acknowledged in court filings that previous rulings have “routinely” upheld FEC disclosure requirements. But, the challengers argued that this case “presents an opportunity to reverse this trend and broadly safeguard” a right to fund some political messages anonymously.
In a brief opposing the government’s motion filed with the Supreme Court, the institute’s lawyers said the government’s “informational interest is particularly weak” in this case because it involved a radio ad focused on a legislative issue and didn’t mention anything about an election.
CPI: Business Roundtable softening stance on political transparency?
By Dave Levinthal
In its latest “Principles of Corporate Governance” report, the Business Roundtable encourages corporate members to decide for themselves whether to publicly disclose political activities, such as contributing cash to so-called “dark money” nonprofit groups…
But David Keating, president of the nonprofit Center for Competitive Politics, which advocates for political speech rights, disagrees, calling the Business Roundtable’s latest statement on political disclosure “unremarkable.”
Keating – whose legal efforts led to the creation of super PACs – noted that the Business Roundtable’s Principles of Corporate Governance document scolds corporate shareholders who attempt “to use the public companies in which they invest as platforms for the advancement of their personal agendas or for the promotion of general political or social causes.”…
In sum, the Business Roundtable “does not appear to have softened its stance on voluntary disclosure,” Keating said. “Disclosing one’s affiliations with trade associations and nonprofits creates a roadmap for activists to pressure corporations in an attempt to starve [politically active nonprofit] groups of support and silence their voices.”
Free Speech
Vox: Corporations like Exxon are using spurious free speech claims to fend off regulation
By Jeff Clements and John Coates
In the latest instance of the corporate takeover of the First Amendment – and other constitutional rights – Exxon Mobil, the world’s largest oil and gas corporation, has invented a constitutional right to obstruct state investigations into allegations of fraud…
This is where the Supreme Court’s decision in Citizens United v. Federal Election Commission is taking the country. That 2010 ruling is infamous for opening the floodgates of big, dark money in our elections by deciding that any limits on supposedly “independent” political ads violate the speech rights of corporations, unions, and billionaires. What is less well-known about Citizens United is how radically it empowers corporations to misuse the First Amendment in other ways – ways we now see playing out in the Exxon case, and elsewhere.
Citizens United was the capstone on a remarkable series of cases, dating only to the 1970s, that revolutionized the application of the First Amendment in the corporate context. Very few people realize just how quickly this constitutional revolution has occurred; very few people realize that American corporations thrived for the first two centuries of American history with virtually no First Amendment protections.
FEC
Washington Examiner: FEC Dem seeks Hollywood help in war on Trump
By Paul Bedard
Commissioner Ellen Weintraub, in tweets to actors George Takei, Mark Ruffalo, and comics Samantha Bee and Chelsea Handler, urged their attention to her demand written on FEC letterhead for the president’s election fraud evidence…
Her agency has the authority to govern finances of federal campaigns, not voter fraud or state elections. As a result, there are concerns that her effort is tainting the commission’s ability to fairly judge Trump.
What’s more, she’s drawn attention for ripping the president’s top White House lawyer, a former FEC commissioner she dueled with.
Fellow Commissioner Lee Goodman explained, “The FEC does not administer elections or investigate claims of voting fraud so I am surprised an FEC commissioner would wade into political combat with the president over that issue. FEC commissioners have an ethical responsibility to maintain strict neutrality and avoid expressions of bias toward the political affairs we regulate, and I don’t want the Commission’s law enforcement decisions to be tainted with the perceived personal animus or bias of one commissioner.”
The Courts
Reason: Pro-Pot Student Group Wins 1A Fight With Meddling School Admins, State GOP
By Elizabeth Nolan Brown
A win for free-speech and marijuana-decriminalization advocates from the U.S. Court of Appeals for the Eighth Circuit…
On Monday, the appeals court affirmed the district court’s ruling, concluding that students’ “attempts to obtain approval to use ISU’s trademarks on NORML ISU’s merchandise amounted to constitutionally protected speech.” And state schools cannot discriminate against constitutionally protected speech on the basis of its viewpoint without proving that this restriction serves a compelling governmental interest and is narrowly tailored to serve that interest.
In this case, Iowa State’s rejection of NORML ISU designs did discriminate based on viewpoint, the court found, and this discrimination was based on “political pushback.” Therefore, “the district court did not err by concluding that [ISU] violated plaintiffs’ First Amendment Rights because defendants engaged in viewpoint discrimination and did not argue that their administration of the trademark licensing program was narrowly tailored to satisfy a compelling governmental interest.”
Independent Groups
Albany Times Union: Pro-Republican super PAC gears up to oppose Cuomo 2020
By Matthew Hamilton
A national pro-Republican political action committee is preparing to ramp up efforts to oppose Gov. Andrew Cuomo – not in expectation of his likely run for a third term next year, but with an eye to his potentially seeking the presidency in 2020.
Cuomo, who is considered to be on the short list of Democratic candidates for the next presidential election, says he remains focused on being governor. But that isn’t stopping America Rising, which digs up and spreads opposition research primarily for federal-level races, from building up its opposition to the governor early.
In an interview last week, America Rising Executive Director Colin Reed said the plan is to start messaging about Cuomo’s negatives early. The super PAC plans similar efforts against Democratic U.S. Sens. Cory Booker of New Jersey and Elizabeth Warren of Massachusetts, who also are on the 2020 short list.
Lobbying
Wall Street Journal: The Rise and Fall of a K Street Renegade
By Brody Mullins
Few outside Washington had ever heard of Evan Morris. Yet in the capital of wheeling and dealing, he was one of its most gifted operators.
From his start as an intern in the Clinton White House, he made powerful friends and at age 27 became a top Washington lobbyist for Roche Holding AG of Switzerland, one of the world’s largest pharmaceutical companies…
Government investigators now suspect Mr. Morris embezzled millions of dollars from his company over a decade in a kickback scheme involving Washington consultants he did business with, according to people familiar with the probe by the Justice Department and Federal Bureau of Investigation…
Investigators are trying to determine if any of the lobbyists, media advisers, political strategists and consultants hired by Mr. Morris had helped hide alleged kickback payments, which could yield fraud or other charges. Federal prosecutors have already presented evidence to a grand jury…
Among Washington lobbyists, Mr. Morris was an early pioneer in the practice of exploiting gaps in disclosure laws for companies to spend millions of dollars, much of it untraceable, to fund stealthy influence campaigns.
The States
U.S. News & World Report: Senate Committee Considers Campaign Finance Overhaul
By Associated Press
South Dakota legislators are weighing a rewrite of state campaign finance laws that could replace provisions of a government ethics overhaul that lawmakers recently repealed.
The Senate State Affairs Committee on Monday considered two bills from Secretary of State Shantel Krebs. The proposals include creating a campaign finance ethics commission, tightening financial disclosure requirements and allowing entities to contribute directly to candidates, among other provisions.
Krebs, a Republican, convened a bipartisan task force to review the state’s campaign finance laws over the summer, before voters approved the ethics initiative. She says the last time election laws were reviewed and amended in full was roughly a decade ago.
The committee decided to table the ethics commission bill and defer action on the campaign finance measure.
Sioux Falls Argus Leader: Officials have obligation to defend constitution
By Gov. Dennis Daugaard
Elected officials have an obligation to respect the will of the voters, but we also have a duty to defend our state constitution. Unfortunately, Initiated Measure 22 has numerous constitutional defects – so numerous, in fact, that a circuit judge held it was unconstitutional “beyond a reasonable doubt” and suspended it from staying in effect. In addition, the law was poorly drafted; even its supporters agreed it had problems that needed to be fixed…
The best option, in my opinion, is to replace Initiated Measure 22 with new pieces of legislation that are constitutional and workable, and that meet the same goals as those the voters had in mind…
I am joining with legislators to follow that middle path. Bills have already been introduced to address the important aspects of Initiated Measure 22. One bill will regulate gifts from lobbyists to state officials. A number of bills offer processes to deal with ethics complaints, and I am working with legislators to decide which bill would work best, or if we should combine the best ideas from several bills. The Secretary of State also has a bill to revise campaign finance laws, and there are ideas to improve that bill as well.
KBIA Missouri: State’s new campaign finance law creates headache for St. Louis mayoral candidates
By Jo Mannies
Several St. Louis mayoral candidates scrambled Monday after they discovered tens of thousands of donations from corporations and unions are barred under the new campaign finance law that Missouri voters approved in November.
Many of Amendment 2’s key provisions, including campaign donation limits, apply only to statewide and legislative candidates. But the ban on donations from corporations and unions affects candidates across the board, according to an opinion issued late last week by the Missouri Ethics Commission.
The mayoral primary is in about three weeks, which means the candidates have to scrutinize their donations at a time when they would otherwise be spending the money on advertising…
Attorney Chuck Hatfield is representing some companies who are challenging some of Amendment 2’s provisions. He said the Ethics Commission’s opinion only affects donations from businesses that pay their taxes as corporations, but that many companies use other IRS provisions, so their campaign donations would not be affected.
Montana Public Radio: Constitutional Amendment Declaring Corporations Aren’t People Faces Long Odds
By Edward O’Brien
A proposed constitutional amendment declaring that corporations are not people faces extremely long odds, according to one Montana political scientist. Senator Jon Tester announced earlier this month that he plans to introduce three campaign finance-related bills.
One is a proposed constitutional amendment declaring corporations are not people. UM Political Science Professor Rob Saldin says it’s a popular idea that will probably go nowhere fast:
“Chances of the amendment passing are approximately zero percent,” he says…
Tester says he has a healthy skepticism of President Donald Trump’s vows to ‘Drain the swamp,’ but:
“This is really part of cleaning up the swamp. This is getting more transparency so that people know what kind of creatures are trying to influence their elections,” Tester says…
The Senator introduced a similar constitutional amendment measure in 2013, but it did not gain any traction.
