In the News
Washington Examiner: Trump-appointed judge delivers fantastic campaign finance opinion in first ruling
By Bradley A. Smith
“The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders.”
This is the first line of the first judicial opinion written by Judge James C. Ho of the United States Court of Appeals for the 5th Circuit…
His first opinion, released in April, was a dissent in a case asking whether an Austin, Texas, $350 limit on political contributions was constitutional…
He began with a detailed analysis as to why Austin’s $350 limit on campaign contributions should be struck down as unconstitutionally low under Supreme Court precedent. Straightforward enough. Ho went further, questioning the right of government to limit political participation at all. “As citizens,” he wrote, “we enjoy the fundamental right to express our opinions on who does or does not belong in elected office.”
Ho pointed out that contribution limits prohibit the exercise of protected First Amendment rights to support candidates and voice political views even when there is no corruption whatsoever. Adding a badly needed dose of realism, Ho wrote, “Countless Americans contribute for no other reason than to support candidates who share their beliefs and interests … without any inkling of a quid pro quo agreement. Indeed, many Americans contribute without ever even communicating with the candidate. … A donor might simply be inspired by the candidate’s prior record of public service, proposed future action, or a particular speech or debate performance. Such contributions are far from corrupt.”
CNN: Trump changes his story about Stormy Daniels
By Veronica Stracqualursi and Clare Foran
President Donald Trump is shifting his story about the Stormy Daniels controversy following the revelation by his lawyer, Rudy Giuliani, that the President reimbursed a payment to the adult film actress by Michael Cohen…
Giuliani said on “Fox & Friends” Thursday morning that Cohen attempted to make the Daniels controversy “go away” with the payment — a suggestion that the agreement was intended to help Trump’s election chances.
Upon hearing that comment Thursday morning, CNN chief legal analyst Jeffrey Toobin referred to it as a “confession that this is a campaign finance violation because they wanted to shut her up in October of 2016.”
Toobin also said the penalty for violating campaign finance laws “depends on the level of intent. Most FEC, Federal Election Commission, violations are handled civilly. But if it’s willful, if it’s intentional, it can be handled criminally.” …
But Bradley Smith, a former FEC chairman, told CNN that he doesn’t believe the payment constitutes a campaign finance violation.
“I don’t think it matters whether Trump paid Cohen back or not,” Smith said, adding, “The standard is not: If it’s related to the campaign, it’s a campaign expenditure. The standard is: It’s a campaign expenditure if it is an obligation that would not exist were it not for the campaign.”
New from the Institute for Free Speech
Democracy Faces Many Challenges, But Free Speech is Not One of Them
By Joe Albanese
On Tuesday, the Brookings Institution held an event entitled “Democracy’s resilience: Is America’s democracy threatened?” …
It was only during the Q&A section when the topic of political speech was raised, as if it were a kind of elephant in the room. The questioner pointed out that there had been no discussion of the role of foreign interference and “big money” in elections, which she claimed swung the electoral results of Wisconsin and other closely-contested swing states in 2016. [Thomas] Mann responded by remarking that 2016 was such a close election that there were any number of factors that could have tipped it – such as James Comey’s letter on his re-opening of the Clinton e-mail investigation.
Mann didn’t totally dismiss the premise of the question though, saying that the post-Citizens United environment allows bad-faith actors to use political speech to “discourage” certain people from voting (rather than persuading them), which makes American elections more vulnerable to foreign intervention. However, foreign actors played a tiny role in 2016 political advertising, and the premise that more speech is harmful to democracy is antithetical to the First Amendment. It blames “bad” outcomes in politics on the freedom to express “bad” ideas, rather than putting the burden on others to counter that speech with more persuasive, “better” speech, or on voters to make the right decision when equipped with enough information.
First Amendment
Reason (Volokh Conspiracy): ‘Freedom of the Press’ and Non-Professional-Media Speakers: Why It Matters
By Eugene Volokh
Many campaign finance laws have sought to limit people’s ability to spend money to support or oppose candidates. The law struck down in Buckley v. Valeo barred people generally from spending more than $1000 on such speech. The law struck down in Citizens United barred corporations and unions from spending any of their general treasury funds on such speech.
Now of course newspapers routinely spend money to support or oppose candidates — anything newspapers write costs money. Under any sensible accounting scheme, an editorial supporting a candidate would cost a lot in labor costs and the editorial’s share of newsprint, ink, and distribution costs. That would often far exceed $1000; and most newspapers are of course organized as corporations. Likewise for extended coverage supporting or opposing a candidate, when engaged in by an opinion magazine.
Campaign finance laws generally exempt “broadcasting station[s], newspaper[s], magazine[s], or other periodical publication[s],” precisely to avoid this result. But those are just statutory exemptions, created as a matter of legislative grace. What if Congress or a state legislature decided to omit any such exemption, so that on its face the law did bar expensive editorializing for or against candidates by newspapers, just as it was intended to do for other spenders?
There are three possible answers…
The Courts
U.S. News & World Report: Montana’s Contribution Limits Upheld in Court Ruling
By Associated Press
Montana’s campaign contribution limits will stay in place for the June 5 primary elections after a federal appeals court decided against revisiting the issue.
The 9th U.S. Circuit Court of Appeals said Wednesday it would not reconsider its October ruling upholding contribution limits for state races.
The decision is part of a long-running lawsuit over claims that Montana’s limits are so low that they restrict donors’ free-speech rights.
The 9th Circuit ruled that the limits prevent corruption or the appearance of corruption.
That means donors this year can give no more than $180 per election to candidates in legislative, Public Service Commission or other state races.
FEC
WFMY News 2: NC Democrats File FEC Complaint Against Senator Tillis Campaign
The North Carolina Democratic Party has filed a formal complaint against U.S. Sen Thom Tillis’ campaign committee and the state Republican Party stemming from work performed by Cambridge Analytica…
State Democrats alleged Wednesday in the Federal Election Commission complaint that Tillis’ campaign and the state Republican Party violated the law because Cambridge Analytica hired foreign nationals that performed key work for them. The complaint also accuses them of receiving illegal contributions from a super PAC…
Tillis’ Office released this statement to WFMY News 2.
“This is a frivolous and blatant, politically-motivated complaint that makes a mockery of the Federal Election Commission process. Of course, the Democratic Party doesn’t care about the facts, but they do care about scoring cheap political points, even if it means making up false attacks and propagating partisan conspiracy theories. The Tillis campaign never employed foreign workers or improperly coordinated with outside groups.”
Internet Speech Regulation
Fast Company: Facebook really wants us to know election ads will be transparent
By Daniel Terdiman
During his keynote address at F8, Facebook’s developers conference, chief security officer Alex Stamos reiterated the company’s plans to launch a portal in June that will aggregate and archive all political ads in a single place. The portal will also show the text for any such ad, and include metadata about each, such as the amount spent, who saw it, and demographic information about the audience.
The goal, Stamos suggested, was that by being as transparent as possible, Facebook hopes to catch bad actors perpetrating the kind of behavior that many say impacted the 2016 presidential election, and that many worry will similarly impact the U.S midterms and elections in other countries this year.
Facebook is surely trying to get out in front of Congress, which is considering legislation such as the Honest Ads Act. The company says its new policies require more transparency on political ads than is currently required in print, TV, or radio.
Free Speech
Axios: Facebook commits to civil rights audit, political bias review
By Sara Fischer
To address allegations of bias, Facebook is bringing in two outside advisors – one to conduct a legal audit of its impact on underrepresented communities and communities of color, and another to advise the company on potential bias against conservative voices.
Why it matters: The efforts are happening in response to allegations that the tech giant censors conservative voices and discriminates against minority groups…
The conservative bias advising partnership will be led by former Arizona Republican Sen. Jon Kyl, along with his team at Covington and Burling, a Washington law firm.
Kyl will examine concerns about alleged liberal bias on Facebook, internally and on its services. They will get feedback directly from conservative groups and advise Facebook on the best way to work with these groups moving forward.
The Heritage Foundation, a conservative public policy think tank, will convene meetings on these issues with Facebook executives. Last week the group brought in tech policy expert Klon Kitchen to host an event with Facebook’s head of global policy management, Monika Bickert…
Conservatives have alleged Facebook bias for years, with the narrative building after reports that Facebook’s content reviewers were suppressing conservative content via its “Trending Topics” feature led to an inquiry by the Senate Commerce committee in 2016.
The Media
Forbes: Facebook’s 1984-Themed Effort To Decide What News Is ‘Trustworthy’ Goes Live
By Kalev Leetaru
Earlier this year Facebook announced that it would begin ranking news outlets by how “trustworthy” and “high quality” they are. At the time, the company declined to offer any detail on the initiative’s inner workings, especially how it planned to adjust for bias and its sampling strategy to ensure a balance of demographics, ideologies and cultural and geographic backgrounds. It also declined to say whether it would permit external oversight of the effort or to build in safeguards to ensure the company could not simply manipulate the rankings to suppress views it disagreed with or to remove coverage critical of it from circulation. Little additional information has been released about the project until this past Tuesday, when Mark Zuckerberg announced at a private event that the company had already begun using its new rankings “as a boost or a suppression” to control the flow of information from those news outlets on its platform.
The idea of a private company in the United States generating a proprietary and entirely opaque ranking of news outlets and using this secret ranking to eventually control what news two billion people on earth see on its platform is nothing short of frightening.
Candidates and Campaigns
Wall Street Journal: Trump Acknowledges Payment to Porn Star Stormy Daniels
By Rebecca Ballhaus and Joe Palazzolo
“Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties, known as a non-disclosure agreement, or NDA,” Mr. Trump wrote in a series of early-morning tweets…
On Wednesday, Mr. Giuliani argued that because the president had reimbursed Mr. Cohen for the payment, it didn’t constitute any violation of the law. “No campaign finance violations, no crime of any kind. Michael had discretion to solve these,” he told The Wall Street Journal…
No law limits the amount presidential candidates can spend on their campaign, but if Mr. Trump ultimately paid Ms. Clifford to protect his candidacy, he may have had to disclose it as a campaign expenditure, according to legal experts…
If Mr. Cohen supplied the funds upfront, the move could still count as an in-kind campaign contribution, which would have exceeded the legal campaign contribution limit and would have had to be disclosed. In addition, campaign-finance experts said that if Mr. Cohen made the payment with his own money and wasn’t reimbursed, his motive would be central to the legal analysis.
Washington Post: Trump repaying the Stormy Daniels money doesn’t mean there were no campaign finance violations
By Philip Bump
During an interview with Fox News Channel’s Sean Hannity on Wednesday, Giuliani volunteered a startling bit of information. The $130,000 that Trump’s attorney Michael Cohen admitted paying to porn star Stormy Daniels? Trump had repaid it.
“That money was not campaign money, sorry. I’m giving you a fact now that you don’t know,” Giuliani told Hannity, raising the subject on his own. “It’s not campaign money. No campaign finance violation.” …
“If the purpose of this was to stop [Daniels] from hurting the campaign,” Noble continued, “then what you have is Cohen made a loan to the campaign. And it was an excessive loan because lending the campaign money is a contribution. It was an excessive contribution until it’s repaid.”
On “Fox and Friends” on Thursday morning, Giuliani bolstered the argument that the payment was linked to the campaign.
“If we had to defend this as not being a campaign contribution, I think we could do that. This was for personal reasons. The president had been hurt personally, not politically, personally so much and the first lady by the false allegations,” Giuliani said.
But then he undercut that claim substantially.
“However. Imagine if that came out on October 15, 2016, in the middle of the last debate with Hillary Clinton,” he said. “Cohen didn’t even ask. Cohen made it go away. He did his job.”
Slate: Rudy Giuliani May Have Just Implicated President Trump In Serious Campaign Finance Violations
By Richard L. Hasen
If what Giuliani says is true, and if the payments were made to help the campaign and not (just) to help Trump personally, the campaign may be implicated in illegal activity. If Trump knew that Cohen was advancing him a $130,000 loan for campaign purposes, that would have to be reported by the campaign, as would the payments Giuliani said Trump made in installments to Cohen. These would be campaign expenditures that the committee has to keep track of. As Philip Bump notes, if the Trump Organization facilities were used to help make these payments, then there may be additional campaign violations related to the use of corporate resources for campaigns…
Ultimately, Giuliani offered two defenses for Trump on Hannity. One, as mentioned, is that the payments were not campaign-related.
The other is that Trump did not know the specifics of what Cohen was doing; just that Cohen was the fixer taking care of things just like Giuliani said he did for his clients. It is a defense that could well be corroborated or rejected based on what’s in the seized Cohen materials.
In the end, the campaign finance issue may not be the biggest legal problem facing Trump (obstruction of justice, for example, seems far more serious), and perhaps there’s proof in the Cohen documents of an intent for this to be unrelated to the campaign.
The States
St. Louis Post-Dispatch: Greitens lied to state ethics commission, took charity donor list, report says
By Jack Suntrup and Kurt Erickson
Gov. Eric Greitens ran an off-the-books political campaign in 2014, took a private charity’s donor list to raise campaign funds and lied about that list in a signed statement to the state’s ethics commission, according to documents and testimony from six of his former employees.
The findings are outlined in a 23-page report released Wednesday by a Missouri House committee investigating Greitens, a Republican. The report contains evidence that Greitens and associates lied in campaign filings, a class A misdemeanor, and violated campaign finance law – a civil offense – when he operated a shadow campaign before filing required paperwork with election authorities.
Illinois News Network: Illinois lawmakers discuss publicly funded small donor matching
By Cole Lauterbach
State lawmakers met in Chicago on Tuesday to discuss a donor-matching system that would use public money to match small contributions of up to $150 by a six-to-one ratio.
State Rep. Kelly Cassidy, D-Chicago, introduced the bill, which would apply to all statewide offices and the General Assembly.
To qualify for the pool of public money, a candidate would have to demonstrate voter support. The candidate would then get $600 in public money for every $100 raised in small donations. In turn, candidates wouldn’t be able to accept more than $500 in funding from any source unless an opponent breaks spending caps, something that wouldn’t affect the current candidates for governor.
The state could not compile more than $50 million per election cycle. A candidate for governor could get up to $2 million in matched funds. Candidates for other offices would get less.
A similar bill passed the Senate in 2017 and could get a House vote should it be allowed a committee hearing. It would be effective immediately. Lawmakers didn’t discuss on Tuesday if such a program could be implemented in time for the November election.
