In the News
Beacon Center of Tennessee: A Bad Sign For Free Speech in Tennessee
By Braden H. Boucek
This sign belonged to a Memphis-area gentleman, Bill Thomas, who was perfectly within his rights to have a sign on this location. He actually owned the property and the State specifically allows the construction of billboards on-premises. Everything about this sign was by the book. Except for what it said. This violation of free speech is why we joined a case to support the legal effort to protect Mr. Thomas’ first amendment right to celebrate holiday cheer…
In Bill’s case, his sign was illegal solely because what it said. The State allows only a limited number of messages to be available for display on-premises. Advertising a business located on-site, for instance, would be allowed. So if the sign had advertised a restaurant on the property and read “Eat at Bill’s,” or if it was a “For Sale” sign he would have been fine. But he can’t wish you a Merry Christmas on the same sign that he could have advertised tires.
This is just completely upside down. The government should be getting out of the business of preferring different types of speech. But it really makes no sense to crack down on speech that is non-commercial in nature. Other signs the State banned encouraged supporting American Olympic athletes, and another sign critical of state officials who were enforcing these laws. American flags and pumpkins shouldn’t be banned on any sign that could contain an advertisement.
Center for Individual Freedom: First Annual Free Speech Index (Audio)
David Keating, President of the Institute for Free Speech, discusses his organization’s Free Speech Index, which details how well each state protects the First Amendment right to engage in political speech and assesses the harmful restrictions on political speech adopted by some of the states.
The Courts
Reason (Volokh Conspiracy): First Opinion by James Ho (a Recently Appointed Fifth Circuit Judge)
By Eugene Volokh
Very interesting — I’ve long known Jim and admired his work, and this opinion (Zimmerman v. City of Austin) shows his qualities well. I myself am more open to campaign contribution limits than he (or his former boss, Justice Thomas) is; I explain my thinking briefly in this article, which shows me to be one of the few people who thinks Buckley v. Valeo’s upholding of sufficiently high contribution limits but striking down of independent expenditure limits is basically right as a constitutional matter. But the dissent makes a strong case that $350 limits are unconstitutionally low, given Randall v. Sorrell and notwithstanding Nixon v. Shrink Missouri PAC.
A funny coincidence: The panel opinion, which Judges Ho and Jones would have had the court reconsider en banc, was joined by Jim’s other former judicial boss, Judge Jerry Smith.
People for the American Way: Confirmed Judges, Confirmed Fears: Trump Circuit Judge Shows His Extremism in Money in Politics
By Paul Gordon
The case is Zimmerman v. Austin, in which a former Austin, Texas, city council member challenged the city’s campaign contribution cap of limit of $350 per election for city council members representing fewer than 100,000 people…
Judge Ho wrote a lengthy dissent, making clear how extreme his views on money in politics are. He even attacked the legitimacy of limiting how much money a person or business can give to a candidate.
“[T]he First Amendment prophylactically protects speech from government intrusion. Yet campaign contribution limits turn this principle on its head: They prophylactically prohibit protected speech, in hopes of targeting the “appearance” of unprotected activity in the form of quid pro quo corruption.” …
He also finds unacceptable the idea that a legislature can draw lines regarding campaign finance contributions, such as Austin’s $350 limit:
“It is at best “conjectural” that a $351 contribution to help defray the costs of campaign speech would create a genuine risk of an unlawful quid pro quo exchange.” …
This extremism comes as no surprise: More than 20 years, he wrote in a Federalist Society publication that we should “abolish all restrictions on campaign finance.”
Congress
McClatchy DC: Senators worry Koch brothers have too much influence in Trump administration
By Anita Kumar
“Americans have a right to know if special interests are unduly influencing public policy decisions that have profound implications for public health, the environment, and the economy,” the senators write in their letters obtained by McClatchy.
The letters launch a larger effort by Democratic lawmakers to reveal the extent of the Koch brothers’ influence in the Trump administration.
Next week, Sen. Sheldon Whitehouse of Rhode Island will launch a series of speeches by senators on the Senate floor to describe Koch-funded groups that push policies…
Special interest groups trying to influence the federal government is nothing new. Left-leaning groups, such as the Center for American Progress, a think tank, and the Sierra Club, for example, take credit for policies implemented during President Barack Obama’s administration.
But Stephen Spaulding, chief of strategy at Common Cause, a government watchdog group, said the Koch brothers go far beyond what other groups do in sheer scope, especially with the amount of money spent and number of people involved.
FEC
Election Law Blog: FEC Commissioner Weintraub Says It Is Time to “Pull the Fire Alarm” and Have Complainants Bypass the FEC and Go to Court
By Rick Hasen
Statement from Commissioner Weintraub:
Fire alarms are sometimes housed in boxes labeled “Break glass in case of emergency.” The Federal Election Campaign Act has such a box; it’s the provision that allows complainants to sue respondents directly when the Federal Election Commission fails to enforce the law itself (52 USC § 30109(a)(8)(C)). In the 44-year history of the FEC, this provision has never been fully utilized. Today, I’m breaking the glass.
Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint in June 2012 -nearly six years ago – alleging that the American Action Network spent millions of dollars on advertising designed to influence elections, was therefore a political committee, and should be thus required to disclose its donors…
It’s time to break the glass and let this matter move forward unimpeded by commissioners who have fought every step of the way to keep dark money dark. I fully support the sound reasoning of the Court’s March 20 opinion. That is why I believe CREW can and should pursue its complaint directly against American Action Network, as Congress provided for under the Federal Election Campaign Act.
Independent Groups
Capital & Main: Rick Scott Super PAC Donations Challenge Federal Anti-Corruption Rule
By David Sirota and Andrew Perez
A 2010 Securities and Exchange Commission (SEC) rule prohibits firms from receiving investment fees from public pension systems if their executives donate campaign cash to pension overseers like Scott. SEC officials aimed to prevent investment decisions from being shaped by political influence.
But the commission didn’t explicitly bar donations to “independent” political groups, unless the donations were deliberately designed to circumvent the restrictions. And it hasn’t addressed whether a state official can lead a super PAC that received donations from firms with pension business and later be supported by the super PAC.
John Kuczwanski, a spokesperson for the Florida State Board of Administration, told MapLight/Capital & Main that Florida’s first investments in the two private equity firms happened in 2005 and 2009, and he said Scott had nothing to do with new investments during his governorship, which started in 2011…
The SEC said in 2016 that donations to outside political groups “are independent expenditures that do not trigger” the rule.
“So long as the PAC faithfully observes the requirement to operate independently of candidates, a contribution to a super PAC will not trigger the [rule], even if the super PAC supports a covered official,” Sam Brown, a former advisor to Federal Election Commissioner Ellen Weintraub, wrote in 2016.
The Media
Ricochet: “Who Funds the Federalist?” Isn’t About Transparency; It’s About Intimidation
By Bethany Mandel
A funny thing happens if you work or write for The Federalist: You have several to several hundred replies to every tweet asking a seemingly simple question: “Who funds the Federalist?”
They just want to know for transparency, you see; because there’s a nefarious Russian plot to take over America and they are certain that The Federalist, a conservative online magazine known to publish some pretty unpopular pieces, is involved…
So why won’t those at the helm of The Federalist just open the books and answer the question, “Who funds the Federalist?”
That’s because the campaign isn’t about transparency; it’s about intimidation. Finding out who funds The Federalist is just step one; step two will be convincing those funders to stop. Exposing their donors and funders does exactly one thing: open those individuals and/or foundations to a boycott and harassment campaign.
Reason: Video: ‘Barack Obama’ Calls Trump a ‘Total and Complete Dipshit’
By Nick Gillespie
Of course, that isn’t real. It’s a video created by comedian and Academy Award winner Jordan Peele, employing increasingly easy-to-use programs to demonstrate the coming age of nearly seamless “fake news” images…
In an age of deep fakes, fake news, polarization, and paranoia, we need to become better and better at critically reading media and all sources of information. Two-thirds of us already believe the mainstream media publish a lot of horseshit, which is a good start…
What the Obama vid above and others like it drive home is the need to step up our game. This is one of the main lessons to emerge from those Russian trolls posting ads and dubious info on Facebook, too.
We will never be able to rein in fake news; indeed, we will never even be able to agree on its precise definition. But that doesn’t mean we’re powerless. Writing recently in The New York Times, University of Maine journalism professor Michael Socolow laid out a tentative program that would help “prevent smart people from spreading dumb ideas.” Among his thoughts: Don’t share surprising news that doesn’t give links to evidence or supporting facts, be skeptical when a story perfectly confirms your most-intensely felt beliefs, and always ask, “Why am I talking?” The way forward is always through empowering individuals to be better filters for themselves, not delegating authority or interpretation to the government or other gatekeeping institutions.
The States
Washington Post: Maryland bill seeks transparency in online political ads
By Brian Witte, AP
If signed by Gov. Larry Hogan, the law would require online platforms to create a database identifying the purchasers of online ads in state and local elections and how much they spend…
Maryland’s measure – crafted to catch ads displayed in smaller state and local elections – would apply to digital platforms with 100,000 unique monthly visitors. Maryland does not have a monetary threshold, though the law would only apply to platforms that reach more than 500 people.
Under the Maryland measure, information about the ads would have to be made public within 48 hours by the entity that was paid for the ad. Online platforms also would need to retain digital copies of the ads…
The Maryland-Delaware-D.C. Press Association, an association of media outlets, opposed a provision in the bill requiring sites to publish political ad purchases. Rebecca Snyder, the association’s executive director, said the group supports transparency in elections but opposed that part of the bill as a violation of the First Amendment by forcing publication. The group includes The Baltimore Sun, which has more than 5 million digital visitors a month.
“This is compelled speech in our view, and it’s a huge issue with us, and we were unable to come to an agreement with the sponsors on this,” Snyder said.
Santa Fe New Mexican: Pro-Apodaca group uses Facebook to hit his rivals
By Andrew Oxford
It is not a candidate’s campaign.
It is not a political action committee.
But it is buying ads on Facebook, and it wants you to vote for Jeff Apodaca.
New Mexico Democrats for Democracy has emerged in just the last few weeks as a fast-growing page on the social media website, championing Apodaca’s campaign for governor and slamming his rivals…
Now the Secretary of State’s Office wants an explanation. It sent New Mexico Democrats for Democracy a letter this week demanding to know why it should not register as a political action committee and disclose its sources of funding as well as its spending, just like any other organization that is buying ads to back or bash a candidate.
“We’re simply a Facebook page,” said Brett Kokinadis, who answered the phone when The New Mexican dialed a number linked to the group’s Twitter account on Tuesday.
By Wednesday, Kokinadis said he would meet with the Secretary of State’s Office and likely register the group as a political action committee.
New York Daily News: N.Y. political web ads will have to reveal who’s paying bill
By Erin Durkin
Online political ads in New York elections will have to disclose who’s paying for them under legislation signed by Gov. Cuomo Wednesday.
Cuomo cast the new law as a response to Russian meddling in the 2016 election, and a way to update old election laws for the digital age…
The legislation mirrors a federal proposal known as the Honest Ads Act, which has not passed Congress…
Cuomo bemoaned a “toxic cocktail” of widespread social media use and foreign influence peddling that has undermined confidence in democracy. “It destabilizes the nation,” he said…
“It will fundamentally change the way campaigns happen in the state of New York. There will be more disclosure, more information,” the governor said.
The New York News Publishers Association raised concerns about the bill, which president Diane Kennedy said does not define what counts as an online platform and requires sites to verify an independent expenditure committee’s registration with the state or face fines.
“You don’t want news organizations to be used as an arm of the government agency,” she said.
CALmatters: Lt. Gov. candidates spar over who’s cleaner in messy world of campaign finance
By Judy Lin
Responding to her opponents, Kounalakis said she established a fund to combat global warming from the money she receives from Western States Petroleum Association. But she noted how little she receives…
She and other candidates were asked by independent candidate Gayle McLaughlin why they take money from corporations, developers and law firms…
Hernandez, who is supported by many labor unions including the California Teachers Association and the California Nurses Association, defended taking money from drug and oil companies.
“The reality is we have to take contributions,” said the optometrist representing the San Gabriel Valley in Southern California. “I don’t have the luxury of being independently wealthy. But let me tell you what I do. All of the decisions that I’ve made are based on what I think are absolutely the right decisions for the people of California and in my district.”
Bleich, a former advisor to President Obama and former ambassador to Australia, said he doesn’t see a problem taking money from lawyers.
“Bob Mueller is a lawyer. Thank God for Bob Mueller,” Bleich said, referring to the U.S. Justice Department’s special counsel overseeing the investigation into alleged Russian interference in the presidential election. “And for the lawyers who spanned out at airports to protect immigrants during the immigration case. So yeah, I’m fine taking lawyer money.”
City & State Pennsylvania: Philadelphia tries again on campaign finance reforms
By Ryan Briggs
At a recent monthly meeting, the Philadelphia Board of Ethics endorsed legislation that would bring a raft of critical changes to the city’s campaign finance laws and limits.
Most notably, the bill would shift the city away from annual campaign finance limits and to a system of limits based on four-year election cycles – while increasing the maximum allowable contribution during that period to $5,000 for individuals and $20,000 for businesses and other organizations…
Michael Cooke, the board’s director of enforcement, said Philadelphia was an outlier in enforcing annual limits, and that the current system required intensive monitoring…
Other major changes include toughening requirements for nonprofit organizations that engage in electioneering and clamping down on the funneling of campaign dollars through pass-throughs. Additionally, according to a memo provided by Cooke, “The proposed amendment would list in one place, and more clearly, all of the types of activity that could require a political committee to have to file a report with the Board, including for litigation fund committees and transition and inauguration committees.”
