In the News
Associated Press: Supreme Court upholds disclosure requirement for issue ads
The Supreme Court has upheld a requirement that forces groups to say who is paying for issue advertising directed at candidates in an approaching election.
The justices on Monday affirmed a lower court decision in a case involving ads that mention candidates but don’t call for the election or defeat of one.
The case involved a Colorado think tank called the Independence Institute and ads that it wanted to run in 2014 that mentioned Colorado Democratic senators Mark Udall and Michael Bennet. Udall lost his 2014 re-election bid, while Bennet won a second term in 2016. The Independence Institute said it wanted to run a similar spot in 2016.
The group objected to revealing the names of its largest contributors. Senate Majority Leader Mitch McConnell, R-Ky., supported the group’s Supreme Court bid.
Courthouse News Service: SCOTUS Upholds Electioneering-Disclosure Rules
By Barbara Leonard
The U.S. Supreme Court issued no comment Monday in upholding federal disclosure provisions concerning subtle advertisements meant to steer an election.
Passed as part of the McCain-Feingold Act, also known as the Bipartisan Campaign Reform Act, the disclosure provisions at issue were designed for a more subtle brand of electioneering.
Though these ads do not expressly advocate for the election or defeat of a candidate, they have the same effect as a campaign ad because of their content and proximity to an election.
The law imposes disclosure requirements on any group that spends more than $10,000 for a television or radio ad merely mentions the name of a federal candidate within 60 days of a general or 30 days of a primary election.
After a group called the Independence Institute challenged the law, a three-person panel of federal judges in Washington ruled for the Federal Election Commission this past November.
Represented by the Center for Competitive Politics, the Independence Institute took their case directly to the U.S. Supreme Court.
Reuters: U.S. top court rejects challenge to political ad disclosure rules
By Andrew Chung
The U.S. Supreme Court on Monday upheld federal disclosure rules for political advertising, rejecting an appeal by a Denver-based libertarian think tank that wanted to run an ad without being forced to divulge its major donors.
The Denver-based Independence Institute sued the Federal Election Commission, arguing the law requiring such disclosure violated its free speech rights under the U.S. Constitution’s First Amendment. The Supreme Court affirmed a lower court’s ruling last year in favor of the commission.
It was the latest in a decade-long series of cases brought by conservatives aiming to roll back federal campaign finance restrictions.
The Independence Institute was supported in the case by influential Republican and conservative voices including Republican Senate Majority Leader Mitch McConnell and the Judicial Watch legal activist group as well as the U.S. Chamber of Commerce business group.
ABA Journal: Issue advertising disclosure requirements upheld by SCOTUS in summary affirmance
By Debra Cassens Weiss
In a summary affirmance, the U.S. Supreme Court on Monday upheld disclosure requirements that require groups that sponsor issue ads to disclose their donors to the Federal Election Commission.
The Supreme Court summarily affirmed (PDF) a decision on behalf of the FEC by the U.S. Court of Appeals for the D.C. Circuit…
The challenge by the conservative nonprofit Independence Institute argued that lower courts had misapplied two U.S. Supreme Court decisions on the subject. The group’s statement of jurisdiction had argued the lower courts are improperly and “routinely upholding virtually any disclosure regime, even those regulating the mere mention of an officeholder in the months before an election.”
“At a minimum,” the Independence Institute had argued, without success, the Supreme Court should “declare that the government may only impose reporting and disclosure requirements on speech that is unambiguously campaign related.”
Talking Points Memo: Supreme Court Affirms Rule That Some Political Ads Require Disclosing Donors
By Matt Shuham
The Supreme Court affirmed Monday that organizations engaged in certain political communications before an election, even advertisements that do not directly endorse a candidate for office, must disclose their donors to the Federal Election Commission.
A lower court’s judgment in Independence Institute v. Federal Election Commission was affirmed by the Supreme Court Monday. The ruling affirmed the constitutionality of disclosure requirements in the McCain-Feingold Act, which specify that any groups that spend more than $10,000 on “electioneering communications” in the 60 days before a general election (or 30 days before a primary election) must disclose their donors.
“Electioneering communications,” include radio and television ads that mention the name of a candidate for federal office, even those that do not make any explicit endorsement.
In this case, Independence Institute wanted to run a radio ad in 2014 urging listeners in its home state of Colorado to “call Senators Michael Bennet and Mark” and ask them support a bill allowing federal judges more discretion in the sentencing of non-violent offenders.
SCOTUSblog: Three new cases, a Breyer dissent and a summary affirmance
By Amy Howe
The justices issued a one-sentence order of their own today in the case of Independence Institute, a Colorado nonprofit that “conducts research and educates the public concerning various aspects of public policy, including taxation, education, health care, and criminal justice.” The institute wanted to run an ad in support of a bill that would give federal judges discretion when sentencing non-violent offenders. But because the ad mentioned the name of one sitting senator who was up for re-election soon, it would qualify as an “electioneering communication.” That designation would in turn trigger a requirement for the group to file reports with the Federal Election Commission that would, among other things, disclose the group’s major donors. The Independence Institute objected to the disclosure requirement, arguing that it violates the First Amendment.
Election Law Blog: Breaking: Without Noted Dissent, Supreme Court Affirms Lower Court Allowing Disclosure in Major Campaign Disclosure Case
By Rick Hasen
Today the Supreme Court affirmed (that is, agreed the lower court was correct, although not necessarily on the reasoning) in Independence Institute v. FEC, a major case which could have called into question the effectiveness of federal and state disclosure laws.
There was a full court press to hear this case-check out the large number of amicus briefs supporting review…
Twice (in McConnell v. FEC and Citizens United), the Supreme Court by lopsided majorities held that it is permissible to require disclosure of money spent on political speech, even if that speech does not contain magic words of advocacy, like vote for or vote against. Independence Institute was an attempt to get the Court to take a third bite at this apple, and to carve an exception for “genuine issue advocacy” which names candidates and could affect elections. The result of a reversal here would have been to create a kind of constitutional exemption to disclosure which would be easy for outside groups to get around-kind of what we are seeing on the federal level, but on the state and local level too.
CCP
Supreme Court Upholds Campaign Finance Disclosure Law
The Supreme Court today affirmed without comment a ruling in the case Independence Institute v. Federal Election Commission, upholding the constitutionality of a campaign finance disclosure law. The Court’s order reflects agreement with the lower court’s result, but not necessarily its reasoning…
The Center for Competitive Politics (CCP), which represented the Institute, released the following statement in connection with the Court’s decision:
“We are disappointed that the Supreme Court chose to forego full consideration of this important appeal, and instead summarily affirmed the lower court,” said Allen Dickerson, CCP Legal Director. “We look forward to continuing our efforts to defend the right to free speech and association.”
“Politicians are exploiting the current legal uncertainty to pass intrusive laws that provide little or no value to the public, and enable official and unofficial harassment of speakers,” said CCP Chairman Bradley A. Smith. “The court has yet to uphold intrusive laws that affect issue speech made more than 60 days before an election. It has yet to consider laws that force disclosure for contributions not earmarked for election-related speech. The Supreme Court has repeatedly found that donor privacy is essential for free speech and dissent on issues. We hope to vindicate those rights in future cases.”
FEC
Cause of Action: Bob Bauer Agrees With Us About Commissioner Weintraub, But Doesn’t Want to Do Anything About It
By James Valvo
Yesterday, former White House Counsel Bauer rode to Ms. Weintraub’s defense with a post on his campaign-finance blog, More Soft Money Hard Law. Nearly lost among Mr. Bauer’s various defenses of Ms. Weintraub’s behavior is a key concession that vindicates CoA Institute’s letter to the FEC. As he wrote: “Are Weintraub’s comments directly and squarely within the jurisdiction of the Commission, such that she can take some action in response to the President’s failure to produce the requested evidence? No[.]” To anyone who believes in the rule of law-that old-fashioned notion that laws, standards, and rules are to be applied regardless of one’s rank or standing in society-that should have ended the matter. Ms. Weintraub, in her role as FEC Commissioner, acted outside her authority; applicable ethics rules prohibit officials from using official time and government property in unauthorized conduct; Ms. Weintraub continued her unauthorized conduct; she should accordingly be the subject of an ethics investigation.
Political Parties
Huffington Post: DNC Members Vote Down Corporate Money Ban
By Daniel Marans
Democratic National Committee members on Saturday voted down a resolution that would have reinstated former President Barack Obama’s ban on corporate political action committee donations to the party.
Resolution 33, introduced by DNC Vice Chair Christine Pelosi, would also have forbidden “registered, federal corporate lobbyists” from serving as “DNC chair-appointed, at-large members.”
A majority of the 442 eligible DNC members rejected the resolution after roughly a dozen members rose to speak for and against it…
The resolution will now go to the DNC’s smaller executive committee for consideration.
Obama, as the party’s presidential nominee in 2008, banned contributions from political action committees, as well as from lobbyists. Former DNC chair Debbie Wasserman Schultz quietly lifted the ban ahead of the 2016 election.
Bob Mulholland, DNC member from Chico, California, was one of the bill’s most vocal opponents and helped lead a successful effort to table the resolution for further review on Friday. He argued that the ban would handicap Democrats at a time when they need all the resources they can muster.
The Media
Wall Street Journal: Trump and the Media
By James Freeman
CNN and the New York Times are upset they weren’t included in a Friday press briefing at the White House, even though they still had access to media pool reports filed that day. Almost all Americans-and for that matter almost all journalists-were also not invited to the meeting with White House press secretary Sean Spicer. But CNN and the Times seem to feel particularly offended…
On Saturday the paper ran a piece taunting Mr. Trump based on the Times conviction that even the highest elected official in the U.S. will ultimately lose a power struggle with Washington’s un-elected establishment. Reporters Glenn Thrush and Michael Grynbaum fault Mr. Trump for “believing he can master an entrenched political press corps with far deeper connections to the permanent government of federal law enforcement and executive department officials than he has.” The Times report adds that the President “is being force-fed lessons all presidents eventually learn – that the iron triangle of the Washington press corps, West Wing staff and federal bureaucracy is simply too powerful to bully.”
When trying to play the sympathetic victim whose rights are being violated, referring to oneself as part of an “iron triangle” is generally not recommended.
The States
U.S. News & World Report: Lawmaker Targets Taxpayer Dollars for Post-Election Parties
By Associated Press
A Republican legislator wants to ban taxpayer money from flowing to post-election celebrations.
The bill would prohibit candidates from using the Maine Clean Election Fund for parties following elections.
The fund makes public money available to qualifying candidates.
The Associated Press’s review of campaign finance reports found candidates said they spent more than $11,000 on food for campaign events and volunteers in the month after the election.
Publicly-funded candidates accounted for 70 percent of those expenditures.
New York Post: De Blasio hits up ‘regular’ NYers for donations after being grilled by feds
By Rich Calder
Hizzoner is seeking donations as low as $3, so he can qualify for public matching funds.
“I want to talk to you about New York City’s progressive campaign finance laws, and then I am going to ask you to do something important to support and take advantage of them,” de Blasio said in the e-mail.
“In New York City, every single resident who contributes between $1 and $175 to a campaign has their contribution matched SIX to ONE. What that means is that a $10 contribution turns into $70, $20 turns into $140, and so on.
“This is important because it allows people to run for office without being a millionaire or asking millionaires for money. It opens the doors of politics to people without connections to the city’s rich and powerful, and levels the playing field for working people who want to run for office . . . Make a $3 contribution to support my re-election campaign, and as a way of saying you support reducing the influence of big money in our campaigns and elections.”
Washington Post: Republican lawmakers introduce bills to curb protesting in at least 18 states
By Christopher Ingraham
Since the election of President Trump, Republican lawmakers in at least 18 states have introduced or voted on legislation to curb mass protests in what civil liberties experts are calling “an attack on protest rights throughout the states.”…
Some are introducing bills because they say they’re necessary to counter the actions of “paid” or “professional” protesters who set out to intimidate or disrupt, a common accusation that experts agree is largely overstated. “You now have a situation where you have full-time, quasi-professional agent-provocateurs that attempt to create public disorder,” said Republican state senator John Kavanagh of Arizona in support of a measure there that would bring racketeering charges against some protesters…
Critics doubt whether many of the laws would pass Constitutional muster. “The Supreme Court has gone out of its way on multiple occasions to point out that streets, sidewalks and public parks are places where [First Amendment] protections are at their most robust,” said Lee Rowland, a senior attorney with the American Civil Liberties Union.
St. Louis Post-Dispatch: Special interests are trying, again, to reverse voters’ will on campaign cash
By Editorial Board
After the Legislature and Gov. Matt Blunt thumbed their noses at the 1994 law and ushered in no-limits rules in 2008, six- and seven-figure contributions became commonplace.
So Fred Sauer of Clayton, a very conservative Republican, took it upon himself to get Amendment 2 on November’s ballot…
Multiple court challenges have been filed. The Missouri Ethics Commission is working overtime interpreting the law’s basic provisions. It has ruled that Amendment 2 didn’t apply donation limits to candidates for local offices. But it further ruled that corporate contributions to races like that for St. Louis mayor are forbidden…
Say you’re a big donor who wants to give a million dollars to help a gubernatorial candidate. Amendment 2 says you can give no more than $2,600 per election directly to any candidate for state office. But you could give $1 million to a local officeholder – a county commissioner, for example – who could then set up an independent expenditure committee to help your gubernatorial candidate.
