In the News
Public Policy Legal Institute: Supreme Court Vacates Problematic Fourth Circuit Opinion Welcoming “Restraint” of Candidate Speech
PPLI and the Center for Competitive Politics had filed “friend of the court” briefs in the Supreme Court in Trump v. Int’l Refugee Assistance Project, No. 16-1436. That case, commonly referred to as the “travel ban” cases, considered the President’s power to block certain aliens from entering the United States. The U.S. Court of Appeals for the Fourth Circuit had blocked the Executive Order that imposed the ban, but did so by referring to candidate Donald Trump’s campaign statements. Unfortunately, the Fourth Circuit said:
“To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.” Int’l Refugee Assistance Project, et al. v. Trump, et al., 857 F.3d 554, 600 (4th Cir. 2017), slip op. 68.
This “welcome restraint” doctrine conflicts with settled Supreme Court decisions protecting free speech on the campaign trail…
The two PPLI/CCP briefs first asked the Court to review the case, by granting certiorari, then, without taking a position on the merits, asked the Court to protect the First Amendment rights of candidates and those who want to hear their true opinions, by “vacating” (eliminating) the troublesome Fourth Circuit opinion.
United States Court of Appeals for the Ninth Circuit: Public Confidence in the Election Process (Video)
Legal challenges involving political campaigns or elections present some of the most difficult, high-profile, and time-sensitive matters to come before federal courts. They also may test the bounds of judicial independence and the appearance of impartiality. Their consequences are often far-reaching. A panel of three distinguished election law experts will participate in a conversation to help navigate through this thicket. They will discuss perennial issues arising in election law, such as the Voting Rights Act, redistricting, and the regulation of money in politics. They also will tackle several more recent hot topics, including voter fraud, voter suppression and protection, the regulation of micro-targeting, the Purcell principle (relating to court-ordered changes shortly before an election), the Electoral College, faithless electors, and foreign interference with U.S. elections.
Free Speech
46 percent of students recognize that hate speech is protected by the First Amendment, and 48 percent of students think the First Amendment should not protect hate speech.
Most students (56 percent) support disinviting some guest speakers. Democratic students are 19 percentage points more likely than their Republican peers to agree that there are times a speaker should be disinvited.
58 percent of college students think it’s important to be part of a campus community where they are not exposed to intolerant or offensive ideas.
Very few students report that they would participate in actions that would prevent a guest speaker event from taking place (2 percent). Even fewer said they would use violence to disrupt an event (1 percent).
In open-ended questions, almost half of students (45 percent) identify speech with a racist component as hate speech, and 13 percent of students associate hate speech with violence.
In class, 30 percent of students have self-censored because they thought their words would be offensive to others. A majority of students (54 percent) report self-censoring in the classroom at some point since the beginning of college.
FEC
The Hill: FEC asks for public comment on online ad disclosure rules
By Harper Neidig
The Federal Election Commission (FEC) is asking for public input on its disclosure rules for online political advertisements, as companies like Facebook and Google are being scrutinized by investigators for ads they ran during the 2016 presidential campaign.
The FEC announced on Tuesday that they would be reopening the public comment period on the rules nearly a year after the last time they sought public input on the disclosure requirement…
The FEC is soliciting input on whether its rules need to be revised in order to keep up with technological changes in the way that political actors advertise.
The public has until Nov. 9 to submit comments.
Washington Examiner: FEC eyes regulating apps, iPhones, Kindle, wearable technology
By Paul Bedard
“The Commission is particularly interested in comments addressing advertisements on internet-enabled applications and devices such as apps, eReaders, and wearable technology,” said the agency…
With political campaigns turning more and more to the internet, and with new concerns that foreign governments and groups, notably in Russia, have used Facebook and Twitter to influence the election, the FEC is taking steps to consider regulating the internet and the delivery devices.
It is an effort championed by Democratic commissioner Ellen Weintraub and welcomed by Republican Matthew Petersen. At the FEC’s last meeting, Petersen said, “I think getting a sense where the current state of technology is would be helpful for allowing us to know whether or not technology has now advanced to a point where the small items exception is no longer necessary because it’s simple enough for the characters to be put on the advertisement, to put on the necessary disclaimer or whether or not there still are limitations or there are so many distinctions between different platforms and different phone providers, tablet providers, that it would be very difficult to have a one size fits all rule.”
Axios: Scoop: Only Twitter is submitting FEC comments
By Sara Fischer
Twitter has informed a Federal Election Commission office that it will be submitting a written comment to the FEC on political ad disclosures, Axios has learned.
The FEC is expected to make public all of the comments shortly after the comment period closes on Nov. 9. These will likely be used to help inform the legislation being introduced around disclosures on Capitol Hill at the end of the month.
Facebook has been contacted, but has not made a commitment, a source said. The company has already written a comment on this proposed rulemaking, back in 2011, but it is unclear whether it will be updating their thoughts given the recent circumstances.
The FEC is in an earlier stage of talking to Google.
Why it matters: All three companies have indicated that they’re open to assisting with ongoing inquiries, but so far only Twitter has submitted a comment in the most recent 30-day comment window.
Congress
Weekly Standard: Mitch McConnell Goes to the Mattresses for Trump’s Judicial Nominees
By Fred Barnes
Confirming judicial nominees has been elevated to a top priority in the Senate. “I decide the priority,” McConnell said in an interview. “Priority between an assistant secretary of State and a conservative court judge-it’s not a hard choice to make.”
And when nominees “come out of committee, I guarantee they will be dealt with,” McConnell said. “Regardless of what tactics are used by Democrats, the judges are going to be confirmed.”
No longer will “blue slips” be allowed to deny a nominee a Senate Judiciary Committee hearing and vote on confirmation. In the past, senators have sometimes barred a nominee from their state by refusing to return their slip to the committee, thus preventing a hearing and confirmation.
“The majority”-that is, Republicans-will treat a blue slip “as simply notification of how you’re going to vote, not as an opportunity to blackball,” McConnell told me. The use of blue slips, he noted, is not a Senate rule and has “been honored in the breach over the years.” Now it won’t be honored at all.
The Media
National Review: The Problem with Trump’s Calling for More Positive Coverage of Himself on TV
By Katherine Timpf
On Saturday, President Trump called for television programs to give “equal time” to positive coverage of him and his viewpoints. It’s honestly one of the most unsettling things that I’ve seen in a while…
See, the First Amendment is about so much more than making sure the government can’t punish you for saying something that isn’t politically correct. In fact, its most important role is ensuring that the government can’t punish you for saying negative things about the government…
On the campaign trail, then-candidate Trump blatantly stated that he wanted to weaken the First Amendment rights of reporters: “We ought to open up the libel laws, and I’m going to do that,” he said. “When [reporters] write purposely negative and horrible and false articles, we can sue them and win lots of money.” In August, Attorney General Jeff Sessions threatened subpoenas and even jail time for reporters who publish leaked information. It’s clear that this is an administration that has no qualms about threatening to use its power to weaken the power of the press. It is putting its own political convenience above one of our most sacred rights, and that’s something that should concern all of us.
Donors
Politico: GOP hopefuls’ new must-have: Megadonors
By Maggie Severns and Kevin Robillard
Candidates scrambling for donor help is nothing new. But the early efforts this year to secure big-name funders have further blurred the hazy lines between candidates and unlimited-money outside groups, while reshaping Senate races around the country – propelling unknown candidates to prominence, scaring off potential opponents and heralding millions of dollars of outside spending as Republicans prepare for tough campaigns against Democratic senators…
Some of the communication with donors this year would be illegal if it took place between a candidate and a super PAC. But there’s nothing keeping soon-to-be candidates from recruiting such support before they declare a run for office, as Bush did in 2015, when he traversed the country raising tens of millions of dollars for his Right to Rise super PAC before announcing his candidacy for president.
The States
Santa Fe New Mexican: New Mexico adopts political disclosure rules for dark money
By Morgan Lee, Associated Press
New disclosure rules for political spending took effect Tuesday in New Mexico that require independent groups that spend heavily to influence the outcome of elections to name their contributors – under certain circumstances…
Disclosure requirements apply when explicit endorsements are made and when groups spend more than $2,500 on a statewide election or ballot measure, or $1,000 for non-statewide elections that include state legislative seats.
The rules change as election day draws near to include almost any mention of a candidate or ballot measure if it is within 30 days of a primary election or 60 days off a general election, said Joey Keefe, a spokesman for the New Mexico Secretary of State’s office…
The disclosure rules have come under criticism as an infringement on free speech from several conservative-backed groups, with some arguing that Toulouse Oliver overstepped her authority. Republican Gov. Susana Martinez in April vetoed a bill containing many similar provisions that had broad, bipartisan support among lawmakers.
Albuquerque Journal: New rule on political spending takes effect
By Dan Boyd
Secretary of State Maggie Toulouse Oliver rolled out the rule in June, just two months after Gov. Susana Martinez vetoed legislation that would have changed state law to require more disclosure.
The first-term Democratic secretary of state faced opposition from several national groups that argued the rules would curb free speech rights and could lead to individuals being harassed because of their political donations. Critics also suggested a lawsuit might be filed if the rules were implemented.
The Secretary of State’s Office made several changes to the rule after holding four public hearings over the summer, and Toulouse Oliver decided to forge ahead last month and has said she’s prepared to go to court to defend it…
The rules will require nonprofits and other groups active in New Mexico campaigns – but not coordinating with candidates – to disclose their significant donors if they spend more than $2,500 on any single political advertisement for a statewide race or more than $7,500 total in an election cycle. Those figures would be lower for races or ballot measures that are not statewide, including legislative races.
New Mexico already requires candidates and political committees to file reports disclosing the identities of all their donors, regardless of contribution size.
Denver Post: A new Colorado school board campaign finance law is having unintended impacts on big-ticket 2018 races
By Ross Wolfe
State lawmakers last year passed legislation meant to make public last-minute contributions flowing into the state’s off-year school board races by requiring candidates to disclose contributions of $1,000 or more within 24 hours starting a month from the election.
But, according to the Colorado secretary of state’s office, House Bill 1282 accidentally applied the requirements to statewide races.
That means the candidates for the state’s highest offices in 2018 – including more than a dozen people who have filed to run for governor – must report donations of more than $1,000 from now until the Nov. 7 school board elections.
“It was only our intent to deal with the school board elections,” said state House Majority Leader KC Becker, a Boulder Democrat and one of the legislation’s prime sponsors…
“This never came up,” Becker said. “We’re willing to have a discussion about whether this provision should be cleaned up. I don’t know why they are announcing this now for the first time. They didn’t give me a heads-up. We had several parties involved in drafting, and they had no idea. … I don’t know why the secretary of state’s office didn’t tell anyone sooner.”
CT News Junkie: Special Interest Funding Drops Under Clean Election Program
By Christine Stuart
A day after Malloy vetoed the budget, the State Elections Enforcement Commission wrote legislative leaders to remind them the “CEP costs very little in comparison to the potential costs of corruption and the liberation that public financing affords lawmakers, like you, who are more interested in doing what is right instead of what a big donor may think is best.”
They said the budget debate has proved that legislators are voting based on what they think is best for their constituents and “not what big money interests – be they corporations or unions – think they should.”…
Follow the Money, a nonpartisan, nonprofit organization that promotes an accountable democracy, recently found that the average contributions from special interest donors to winning state candidates in Connecticut dropped an eye-popping 98 percent after adoption of the public funding program, from $2.1 million to $34,412 per election year.
That doesn’t account for independent expenditure groups, which can spend money for or against campaigns, independent of the candidate.
Dentons: Georgia campaign finance commission signals intent to be active in 2018 election
The second important action by the Commission in recent weeks was the adoption, during a special emergency hearing held on October 5, of a proposed Advisory Opinion. The unanimously adopted Opinion-No. 2017-05-touches on a host of important campaign finance issues related to the making of express advocacy communications by independent, non-campaign groups, including the Commission’s interpretation of what constitutes coordination between such groups and candidates under state law. The language of the Advisory Opinion, while characterized by the Commission during the emergency hearing as narrowly tailored, contains analysis and discussion that has the potential to be broadly applied to restrict or limit a wide range of political engagement by independent groups that has been heretofore permissible activity under Georgia law…
In conjunction with the passage of the Opinion, the Commission’s Executive Secretary, Stefan Ritter, noted that when the Commission meets again in December, agency staff will be announcing a number of proposed rules on independent expenditure activity, express advocacy communications and coordination.
