In the News
Deseret News: Ex Utah A.G. John Swallow asks judge to toss FEC complaint against him
By Dennis Romboy
John Swallow wants a federal judge to not only dismiss the Federal Election Commission complaint against him but invalidate the campaign finance rule he allegedly violated.
Allen Dickerson, a lawyer for the former Utah attorney general, argued Tuesday in U.S. District Court that the process the FEC used to come up with the regulation was “deeply flawed.” …
Dickerson said the law is silent on secondary liability – the practice of holding one party legally responsible for helping another – for the type of campaign finance violation Swallow allegedly committed.
“There is none,” he said.
Benson said he was having a problem with the FEC argument that someone could assist another person in making a campaign contribution.
“I just don’t see it,” he said. “How does more than one person make a contribution? Either you make a contribution to a candidate or you don’t.”
Chaudhry asked Benson to refer the regulation back to the FEC rather than remove it from the books if he finds it invalid. The judge did not issue a ruling Tuesday.
Swallow, who is represented by the Institute for Free Speech based in Washington, D.C., did not attend the hearing.
Salt Lake Tribune: Former Utah AG John Swallow wants suit over campaign contributions tossed
By Pamela Manson
That regulation “chills” fundamental election activity, according to attorney Allen Dickerson, of the Institute for Free Speech, a Virginia-based nonprofit that formerly was called the Center for Competitive Politics…
Swallow’s attorneys have countered in court papers that the FEC has never accused the former GOP officeholder of doing anything more than give Johnson advice.
They allege their client now is being illegally targeted under a “secondary liability” rule that holds one person legally responsible for helping another.
Furthermore, the regulation should never have been adopted because there is no reference to secondary liability in the statute, the attorneys argue.
At a hearing last fall, Benson said he was concerned that by demanding reams of evidence, the FEC was pursuing the case in a manner that far exceeded its importance.
And at Tuesday’s hearing, the judge pointed out that the regulation says “no person” may make a contribution in someone else’s name and asked Chaudhry how more than one person makes a single contribution.
Baltimore Sun: How Maryland’s tough campaign finance laws protect incumbents
By Luke Wachob and Alex Baiocco
In a new Free Speech Index on political giving, Maryland, along with 10 other states, receives an “F” grade.
Maryland’s failing grade is due largely to the state’s restrictions on political parties. A majority of states place no limit on individual giving to parties, but Maryland limits both the amount individuals can give to parties and the amount of support parties can provide to their candidates, effectively doubly restricting free speech and association. Despite increasing limits for individuals in 2013, Maryland still has some of the lowest in the country.
Maryland is also one of only a few states with a four-year election cycle, meaning donors can give the maximum amount less often than in the vast majority of states. On top of all this, these limits aren’t adjusted for inflation, meaning a citizen’s ability to support candidates will decline each election cycle.
Maryland has tried to bolster campaigns for governor by offering taxpayer funds to candidates, and a few Maryland counties are also experimenting (or may soon) with taxpayer funding of campaigns. These programs impose additional restrictions on a candidate’s fundraising and spending, but in return they allow candidates to receive government funding…
However, the experience of other states and cities shows that these programs are easily gamed by savvy political actors seeking to bilk the system.
East Oregonian: Groups push limits on Oregon campaign contributions
By Claire Withycombe
As one of several states that doesn’t limit how much individuals, businesses or unions can contribute to candidates, parties or causes, Oregon has earned an “A plus” rating from a Virginia-based group founded by an advocate of deregulating campaign finance.
The rating comes as supporters of campaign finance reform are renewing efforts to amend the Oregon Constitution to allow such limits.
Oregon, Alabama, Nebraska, Utah and Virginia each got a perfect score in rankings released this week by the Institute for Free Speech.
“When people want to change government, they donate to and volunteer for candidates, parties and groups,” the Institute’s leaders wrote in a foreword to the rankings. “Restrictions on these contributions protect incumbents and result in less speech.” …
The Oregon Progressive Party is one of several groups collecting signatures for a citizen initiative petition to amend the state’s constitution to allow limits on campaign contributions and expenditures. If supporters get enough signatures, the measure would be on the statewide ballot in 2020…
On the local level, Multnomah County and other supporters are currently appealing a March 6 circuit court ruling that held county limits on campaign contributions are unconstitutional.
Newsweek: Expect a Fight at the FEC Over That Stormy Daniels Payment
By Josh Keefe
Under the current makeup of the FEC-two Republicans, a Democrat and an independent-any action on the Daniels case would require a unanimous vote. Common Cause attorney Paul S. Ryan, who brought the Cohen complaint to the FEC, said it’s a “slam dunk” that the commission should open an investigation based on the available evidence, but acknowledged the FEC has not always worked as it should.
“We’re talking about an agency that has a pretty poor track record in recent years of doing its job and enforcing the law,” Ryan told Newsweek. “I would be embarrassed if I was an FEC commissioner who voted against the very low bar of opening an investigation.”
Others see a more complicated legal question.
“It looks like Trump has made these kinds of payments to people before unrelated to his campaign or as a candidate,” former Republican FEC Chair Bradley Smith, who is the founder and chair of the Institute for Free Speech, a nonprofit advocacy group, told Newsweek. “It’s hard to show this payment was made solely because he was running for election.”
Public Policy Legal Institute: Is an “Issue Ad” a “falsely narrow dumb legalism”?
By Barnaby Zall
On the Election Law mailing list, which has a high noise-to-signal ratio but often has valuable information and opinions, a debate is raging between Professor Brad Smith, a former Chairman of the Federal Election Commission and founder of the Institute for Free Speech, and a list participant named Jeff Hauser (I don’t know which Jeff Hauser this is) over a National Public Radio report on whether the National Rifle Association used contributions from Russian nationals to influence the 2016 presidential election. The NPR story says, in part, that because the NRA has different financial accounts for its different entities (what most people think of as “the NRA” is a 501(c)(4) social welfare advocacy organization, but there is also a charitable organization and a political action committee), its reporters cannot determine whether Russian money filtered through into American campaign activities. “While the NRA claims it does not receive foreign money for election purposes, the movement of its money among accounts could make it difficult, if not impossible, to track how the money is spent since it is not isolated or sequestered.”
Actually, that is an extraordinarily-ignorant statement for NPR to make, since almost all expenditures for political activities, no matter what type of organization makes them, are reportable and trackable. They must be reported to the Federal Election Commission and, if made by tax-exempt organizations reporting to the Internal Revenue Service, must be reported to the IRS.
New from the Institute for Free Speech
Free Speech is Free Speech, Regardless of Whether it Advances One’s Societal Goals
By Joe Albanese
Last week, FiveThirtyEight published an article analyzing the First Amendment jurisprudence of Supreme Court Chief Justice John Roberts. While the overall thrust of the article – that Roberts is a prolific writer of expansive First Amendment judicial opinions – is correct, its analysis of free speech rights is flawed in other ways…
First, it should go without saying that constitutional liberties possess a value far beyond what they “do” for society. Protecting free speech is an end in itself. While there are longstanding philosophical arguments about the societal value of free speech for fostering public debate in a democratic society and bringing new ideas to the mainstream – arguments that the Institute for Free Speech has advanced frequently – the key reason for the First Amendment is that it is fundamentally unjust for a governing authority to dictate what one can say.
The notion that free speech is only valuable insofar as it can be used as a tool to shape a preferred societal outcome is wrongheaded and detrimental to liberty. It suggests that a higher authority can revoke rights once they cease to serve some vaguely-defined public purpose. While First Amendment protections are not absolute, the exceptions are few and narrow, and not predicated on whether speech is useful for social or political movements.
ICYMI
Fox News: Do you live in a free speech state? (Video)
Best and worst states for free political speech.
[Institute for Free Speech President David Keating speaks about the newly released Free Speech Index.]
Independent Groups
NPR: NRA Says It Receives Foreign Funds, But None Goes To Election Work
By Tim Mak
In the context of ongoing investigations, Sen. Ron Wyden of Oregon, the top Democrat on the Senate Finance Committee, wrote to the NRA earlier this month asking, “Can you categorically state that your organizations have never, wittingly or unwittingly, received any contributions from individuals or entities acting as conduits for foreign entities or interests?”
The NRA said it does receive foreign money but not for election purposes.
“While we do receive some contributions from foreign individuals and entities, those contributions are made directly to the NRA for lawful purposes,” NRA’s General Counsel John C. Frazer wrote to Wyden in a letter obtained by NPR. “Our review of our records has found no foreign donations in connection with a United States election, either directly or through a conduit.”
In 2015 to 2016, Frazer continued, the NRA received money from companies based in the U.S. that may be owned or managed by foreign nationals. “However, none of those entities or individuals is connected with Russia, and none of their contributions were made in connection with U.S. elections,” Frazer added.
The NRA’s response was not sufficient for Wyden. In a letter dated March 27, the senator demanded that the organization provide a detailed accounting of how foreign funds were used over the past three years, whether they were targeted at particular American audiences and what the measured impact was.
Wyden also demanded to know whether any Russian nationals or foreign individuals had been members of the NRA’s donor programs and whether the NRA received any money from sanctioned individuals.
Talking Points Memo: NRA Acknowledges Receiving Foreign Funds, Moving Money Between Accounts
By Allegra Kirkland
“Even if the NRA segregated the foreign money that it received, money is fungible,” Brendan Fischer, a campaign finance expert at the Campaign Legal Center, told TPM. “Foreign money in one account frees up money that can be used for elections in another account.”
“This is a very carefully worded letter that appears designed to give the impression that the NRA does not take foreign money for its election work, but reading between the lines, it does not actually say that,” Fischer added. “The NRA said it did not receive foreign money in connection with the U.S. election. It does not say that foreign money was not used in a U.S. election.”
Paul S. Ryan, Vice President of Policy and Litigation at good-government group Common Cause told TPM that the system described in the gun organization’s letter means that “foreign money subsidizes the NRA’s U.S. political spending.” …
Campaign finance experts said that the Federal Election Commission would probably allow this system to slide, as long as the NRA was able to demonstrate it was using proper accounting measures to try to ensure that its political expenditures did not come from foreign nationals.
The States
Dallas News: Judge says he has ‘concerns’ about controversial McKinney electioneering ordinance
By Nanette Light
State District Judge Benjamin N. Smith hasn’t decided whether the ordinance is unconstitutional, but he expressed reservations about it during a court hearing for a temporary injunction.
“One of the primary questions I have is what is the compelling or significant government interest underlying the restriction?” Smith said…
State law requires campaign workers to stay 100 feet away from a polling location.
But McKinney’s new ordinance – unanimously approved last October – creates designated areas beyond that 100-foot zone where people can post or pass out political information outside some polling places. According to the ordinance, it “protects the health, safety and welfare of the citizens.”
The new ordinance confined campaigners to a muddy field – some described it as a “swamp” – southwest of the John and Judy Gay Public Library.
Earlier this month, campaign workers for Phillip Huffines – who lost the March 6 Republican primary for the Texas Senate District 8 seat to Angela Paxton – filed a complaint after they received citations on the last day of early voting for violating the ordinance.
Maine Public: Maine Senate Endorses Plan To Bolster State’s Clean Election Fund
By Steve Mistler
The Maine Senate voted 21-14 today to add $700,000 to Maine’s public campaign financing program.
The program, known as the Maine Clean Election Act, currently has over $6 million, but administrators say more may be needed because of its heavy use by gubernatorial and legislative candidates this year…
Most Senate Republicans voted to block the funding proposal, including Senate leader…
Despite the heavy use of the program by party candidates, Republican legislators often vote against it, arguing that it’s welfare for politicians. Republican Gov. Paul LePage is among those who oppose the public financing law and his administration took several moves to gut the program after he first took office in 2011…
Nevertheless, LePage is expected to veto the current funding proposal. If he does, then more Republican support will be needed to override him. A two-thirds vote by the House and Senate is needed to override a veto. Neither vote in the House or Senate has met the two-thirds threshold.
WyoFile: Mead ‘deliberate’ with vetoes to check legislative overreach
By Andrew Graham
Gov. Matt Mead has used his veto to check legislative overreach and to strike down poorly written laws, he said Monday.
Mead described his vetoes during the 2018 legislative session – the last he’ll oversee as governor – as consistent with this philosophy and his application of the executive prerogative throughout his eight-year tenure…
“Some we have an idea are going to be big in the sense that they might be controversial,” Mead said. Others are less anticipated. Like many legislative observers, the governor was at times unaware of bills brought by individual lawmakers until they became public in the days or weeks before a session, he said.
Senate File 74 was one such surprise this year, Mead said. The bill would have increased penalties for protesters impeding energy and other industrial infrastructure as well as the organizations supporting them. It died following Mead’s veto…
This year, the critical infrastructure bill is the only one Mead vetoed in its entirety. Lawmakers tried and failed to override it.
