In the News
Politico: Senate clashes over fate of embattled election watchdog
By Zach Montellaro
The Federal Election Commission – which is charged with policing federal campaign finance law – has been sidelined for months leading up to the presidential election because it lost its quorum. But a hearing Tuesday to fill a seat on the FEC with a new appointee from President Donald Trump sparked fierce pushback from Democrats upset with Trump’s handling of the vacancies and the nominee’s views on election law…
[Texas election lawyer, nominee Trey] Trainor did garner support from the Institute of Free Speech, which was founded by a former FEC commissioner that pushes for lighter regulations.
ICYMI
Washington Examiner: The Left has one problem with Trump’s FEC nominee: He’s a Republican
By Bradley A. Smith
In politics, you’re often damned if you do and damned if you don’t. The attacks at Tuesday’s confirmation hearing for President Trump’s FEC nominee, Trey Trainor, are a reminder that some people can never be satisfied.
Since September, campaign finance “reform” groups have been screaming that democracy is in peril…
With no FEC quorum, groups on the Left have stoked fears that the 2020 election will be a “Wild West.” …These fears range from overblown to ridiculous. No candidate stopped reporting donors or abiding by contribution limits when the FEC lost its quorum. Candidates know what the FEC’s critics try not to admit: Violations committed now can and will be prosecuted after a quorum is restored.
Even when the FEC is fully staffed, the civil enforcement process, like, we should note, the enforcement process in most government agencies and courts, can take years to deliver a final decision.
Supreme Court
Las Vegas Review-Journal: ‘No labor law exception to the First Amendment’
By Editorial Board
Two years ago, the U.S. Supreme Court ruled that government workers may not be mandated to pay union dues as a condition of employment. The ruling was a victory for free speech and free association.
Now, in a lawsuit out of Maine, the justices have another opportunity to rein in the power of labor organizations to force workers to accept their representation. The case could have major ramifications for many states, including Nevada.
The legal action – brought by Jonathan Reisman, an associate professor of economics in the University of Maine system – involves the common practice of governments granting public-sector unions exclusive workplace bargaining rights. Mr. Reisman argues that this runs afoul of the Constitution because it prevents him and other like-minded individuals from speaking for themselves in contract negotiations and forces him to associate with an organization that acts contrary to his beliefs…
Mr. Reisman, according to news accounts, was formerly a union officer, but came to object to many of the policy positions for which his labor group advocated. A federal appeals court rejected his arguments, but the Supreme Court is now considering whether to accept the case.
The Courts
NorthJersey.com: NJ ‘dark money’ law dead: Secret donors to remain secret from the public
By Ashley Balcerzak
New Jersey voters will likely not be able to see which secret special interests poured thousands into state and local elections anytime soon. A federal judge made permanent a ban on a “dark money” law in a court filing Wednesday, bringing to an end two out of three lawsuits that challenged the law as unconstitutional.
Gov. Phil Murphy signed a bill last June that would require social welfare 501(c)(4) nonprofits and so-called 527 political organizations to publicly report their donors that contribute more than $10,000, as well as spending of more than $3,000 on elections and political activity.
The liberal American Civil Liberties Union and the libertarian groups Americans for Prosperity and the Illinois Opportunity Project all sued weeks later. They took issue with the broadness of the law, which goes further than similar laws in other states and federal law. It required information published about ads that mention regulations, bills and ballot measures, and not just candidates and elections.
The state came to an agreement with the ACLU and the Illinois Opportunity Project not to enforce the statute, though noted in the consent agreement that the Legislature or the state ethics watchdog could still enact or enforce future legislation or rules along the same lines. Judge Brian Martinotti signed off on the deal Wednesday.
Atlantic: The True Danger of the Trump Campaign’s Defamation Lawsuits
By Joshua A. Geltzer and Neal K. Katyal
Donald Trump’s reelection campaign is launching a legal war against the free press. In the past two weeks, while Americans worried about the coronavirus, the Trump campaign has sued The New York Times, The Washington Post, and CNN. These suits are, legally speaking, frivolous. They pose no danger in court, where they’re all but certain to fizzle and fail. But don’t let that disguise their import. Outside of court, these lawsuits are a real danger to democracy. They abuse the American justice system to attack and intimidate America’s journalists.
Citizens United
Federalist: Mike Bloomberg’s Flameout Proves Billions Can’t Buy Elections
By Kyle Sammin
Citizens United has been a bugbear of the left for close to 10 years now, but we hear very little about what the case said or what its verdict meant. Senator Bernie Sanders has long been the loudest voice on the issue, but it is not terribly clear what he opposes about the decision. Consider this statement on his campaign website: “Overturn Citizens United, which allows corporations to spend unlimited money on elections.” Is that what’s going on? Are large corporations bankrolling the Trump campaign with “unlimited” spending?
Ignore for the moment the idea of “unlimited money,” something only communists and Washington politicians could think exists. The vagueness of the left’s attacks on Citizens United is intentional because they don’t want you to know that they’re calling for government censorship of political speech. Did that case involve a rich person or rich corporation trying to buy votes? It did not, but you wouldn’t know it from Sanders and Biden…
Yet the drumbeat for censorship goes on as the politicians whose ideas find favor with the mainstream media want to make sure theirs are the only ideas you ever get to hear. Today it will be about money, but only because money is the means to spread ideas. The attacks on the First Amendment will not stop with overturning Citizens United. If they are allowed to weaken the First Amendment, all “electioneering communications” will be restricted, and the free flow of ideas that disrupted the big spenders will end.
Independent Groups
The Hill: Michael Bloomberg is not our savior
By Clarissa Rile Hayward
One day after dropping out of the Democratic primary, Michael Bloomberg announced he would form a new independent expenditure campaign-essentially a one-man super PAC-to fight Trump in the general election…
The problem is that when billionaires like Bloomberg convert personal capital into political influence, they undermine what is arguably the most fundamental democratic principle: political equality.
In democracies, all citizens’ preferences are supposed to count, and they’re supposed to count equally. Super PACs (or, more formally, independent expenditure-only political action committees) are loopholes that enable the powerful and the privileged to count more. They enable powerful corporations or wealthy individuals to circumvent campaign contribution limits. Super PACs enhance the ability of the rich to influence elections, increasing their already disproportionate political influence…
Instead, we expect candidates to win popular support by making the better argument: by advancing platforms, developing policy proposals, and articulating goals that resonate with voters.
Online Speech Platforms
Politico: Trump-Biden fracas shows how social media gets mired in fact-check battles
By Steven Overly
Political speech often exists in the gray space between fact and fiction, and that remains true in the digital realm. Campaigns have long sought to spin the facts to favor their candidate. But social media allows that reality to happen on a broader scale and often with less accountability. The 2016 election brought that into sharp focus after it was revealed that Russian trolls had exploited social media to spread disinformation, as part of a Kremlin-directed effort that U.S. intelligence agencies have said was intended to help Trump win.
That experience has prompted some critics to assert that social media companies do not go far enough to combat political misinformation and should be subject to greater oversight.
“The platforms are largely lawless and will do anything that boosts their bottom line – democracy is a second concern at best,” said Jeff Chester, executive director of the Center for Digital Democracy. Chester argues the Federal Election Commission should impose rules requiring “fairness and honesty” online.
“If we continue to allow Facebook, Google and Twitter to permit political groups to falsely scream there’s a ‘fire’ online, we will set the stage for a dystopian democracy where nothing can ever be trusted,” he said.
Candidates and Campaigns
Reason: The Bloomberg and Steyer Fiascoes Should Give Pause to Speech Restrictionists
By Jacob Sullum
The spectacular failures [of Mike Bloomberg and Tom Steyer] should give pause to the politicians and activists who argue that money poses a grave threat to democracy-so grave that the Constitution must be amended to authorize limits on campaign spending. The Bloomberg and Steyer fiascoes show that no amount of money can buy victory for candidates who fail to persuade voters…
While “money isn’t speech,” as advocates of restrictions keep reminding us, money is necessary for speech to reach a wide audience, which is especially important for candidates who do not enjoy the manifold advantages of incumbency, including name recognition, constant visibility, good will earned through constituent service, and voters’ tendency to stick with the guy they know unless there is a compelling reason to take a chance on someone else. Restrictions on spending impair a candidate’s ability to get his message across, just as direct restrictions on the use of telephones, video equipment, computers, or the internet would, even though those technologies are not speech either.
Limiting access to the means of mass communication obviously would violate the First Amendment, and so does limiting their use by telling candidates how much money they can spend, as the Supreme Court has repeatedly held. Yet Democrats are so obsessed with the supposedly corrupting impact of money in politics that they are ready to authorize such restrictions by fundamentally rewriting the law of free speech, as a constitutional amendment backed by every Democrat in the Senate and more than nine out of 10 Democrats in the House would do.
Contrary to the fears underlying that illiberal initiative, voters are perfectly capable of rejecting even the most powerfully amplified messages. Just ask Bloomberg and Steyer.
Roll Call: Business money flows through gaps in anti-corporate PAC pledge
By Kate Ackley and George LeVines
In raising more than $2 million last year, Rep. Cindy Axne didn’t take a dime from any PAC designated as linked to a “corporation” by the Federal Election Commission. Yet her campaign is still stocked with contributions from groups that represent corporate and business interests on Capitol Hill.
And she’s not alone. The freshman Democrat…is one of more than 50 sitting lawmakers who have taken a pledge not to accept direct donations from the political action committees of corporations.
The pledge has led to growing concerns among corporate PAC leaders about what it means for their future.
Yet a review of contribution records by CQ Roll Call found the political money of business interests – to the tune of $2.6 million last year alone – continued to find a way to most of the lawmakers who have taken the pledge…
“To be blunt, it’s nonsensical,” said Michael Toner, a Republican former FEC chairman, who leads the election law and government ethics practice at Wiley LLP. “It’s political atmospherics over substance.”
New York Times: Intelligence Officials Temper Russia Warnings, Prompting Accusations of Political Influence
By Julian E. Barnes, Nicholas Fandos and Adam Goldman
Intelligence officials told lawmakers behind closed doors on Tuesday that Russia was not directly supporting any candidates as it tried to interfere in the presidential race, an assertion that contradicted an earlier briefing and prompted accusations from Democrats that the Trump administration was politicizing intelligence.
“The I.C. has not concluded that the Kremlin is directly aiding any candidate’s re-election or any other candidates’ election,” an unclassified summary given to lawmakers said, using shorthand for the intelligence community. “Nor have we concluded that the Russians will definitely choose to try to do so in 2020.”
New York Times: Russia Trying to Stoke U.S. Racial Tensions Before Election, Officials Say
By Julian E. Barnes and Adam Goldman
The Russian government has stepped up efforts to inflame racial tensions in the United States as part of its bid to influence November’s presidential election, including trying to incite violence by white supremacist groups and to stoke anger among African-Americans, according to seven American officials briefed on recent intelligence…
Rather than disseminate messages as widely as possible, as in 2016, Russian operatives are using private Facebook groups, posts on the online message board 4chan and closed chat rooms that are more difficult to monitor…
Because Russia is trying to amplify the messaging of existing groups, its interference is difficult for American officials to combat given First Amendment protections for speech. The government does have the legal authority to stop hate speech that explicitly advocates violence, and social media companies continue to take down accounts linked to Russian intelligence or disinformation groups…
Some American officials believe that Russia is trying to undermine American democracy and the nation’s standing in the world by driving debate to the extremes.
The States
Seven Days: House Panel Seeks to Weaken Corporate Campaign Contribution Bill
By Paul Heintz
Campaign finance reformers have spent years seeking to limit the flow of corporate cash into Vermont elections. Now a bill that would do just that is being watered down by a House committee.
The bill in question, S.47, was originally drafted to prohibit corporations from making direct donations to Vermont candidates and political parties. It passed the Senate last March by a vote of 21 to 5 but languished in the House thereafter.
A year later, the House Committee on Government Operations is poised to approve the bill later this week – with one major change: It would continue to allow political parties to accept corporate contributions…
The House committee planned to approve the bill Tuesday, but Rep. Jim Harrison (R-Chittenden) introduced a last-minute amendment intended to increase penalties for political action committees and other groups that fail to disclose their donors. The committee appeared generally receptive to the idea but wanted to see the language of the amendment refined.
Copeland Hanzas said she now expects a vote on Thursday, after which the entire House would have to approve it. The Senate and House would then have to resolve their differences before sending the bill to Scott.
Bangor Daily News: Bill to ban foreign money in Maine elections would chill free speech, opponents say
By Steve Mistler, Maine Public
Maine lawmakers are considering a bill that would bar foreign nationals and certain foreign corporations from spending to influence ballot campaigns. It is designed to close a loophole in Maine election law, but it could also have an immediate impact on Hydro-Quebec, the electricity supplier for a controversial $1 billion transmission line through western Maine…
The proposal to prohibit foreign spending on Maine ballot campaigns is sponsored by independent state Rep. Kent Ackley of Monmouth. He told members of the Legislature’s Veterans and Legal Affairs Committee that his bill isn’t just about Central Maine Power’s transmission project…
But opponents of the bill said it could have a chilling effect on free speech. Central Maine Power lobbyist Jim Mitchell said the measure would effectively silence Hydro-Quebec’s views on the project.
“To repress information, a portion of the argument if you will, is to disavow the central ideal of our country – freedom of expression,” Mitchell said. “Our very liberty depends on the free exchange of ideas. If this bill becomes law, what’s next?” …
A similar measure in the City of Seattle was recently backed by the Democratic chair of the Federal Elections Commission and Laurence Tribe, a constitutional law scholar at Harvard Law School.
The Veterans and Legal Affairs Committee will review the Maine bill over the next several days.
Gotham Gazette: A State Budget Necessity: Start-Up Funds for New Campaign Finance Program
By Monifa Bandele
After years of grassroots activism, New York State is a big step closer to shifting the balance of power in Albany through a new public campaign financing program, moving away from big-monied interests and toward regular New Yorkers.
A new state campaign finance system with lower contribution limits and public matching of small donations became law in December, designed by a commission appointed by Governor Cuomo and legislative leaders after years of Democratic officials like the governor talking about support for reform. But Cuomo has omitted necessary implementation funds from his proposed budget for next fiscal year, which begins April 1. Without sufficient resources to scale up, the new system of public campaign financing can’t have the impact we need for change.
The ideal reform would amplify the voices of black and other historically marginalized people by using public matching funds in electoral campaigns throughout the state. Yet Governor Cuomo’s failure to fund implementation, coupled with his support of new ballot access restrictions the commission created to hinder smaller political parties, casts serious doubt on his claims of wanting a better democracy…
Public financing of elections is a matter of racial justice…The new state program would increase the campaign finance influence of constituents even more than in the city’s program…
The governor and legislative leaders must commit to deliver the public financing program that they promised just a few months ago. If we ever want to have real democracy in New York, political voice and representation must finally become open and equally accessible to black and brown communities in our state.
Reason (The Volokh Conspiracy): Can Law Ban False Reporting About Coronavirus?
By Eugene Volokh
The Newark Department of Public Safety writes:
Newark Public Safety Director Anthony F. Ambrose strongly urges the public against posting false information on social media regarding the presence of the coronavirus in the City of Newark.
“Any false reporting of the coronavirus in our city will result in criminal prosecution,” Director Ambrose said. “We are putting forth every investigative effort to identify anyone making false allegations on social media to ensure that any posted misinformation is immediately addressed.”
Director Ambrose adds that misleading information on social media may cause an unnecessary public alarm.
“The State of New Jersey has laws regarding causing a false public alarm and we will enforce those laws,” Ambrose said. “Individuals who make any false or baseless reports about the coronavirus in Newark can set off a domino effect that can result in injury to residents and visitors and affect schools, houses of worship, businesses and entire neighborhoods,” he added.
New Jersey law doesn’t threaten to punish people for honest (even unreasonable) mistakes in what they say about epidemics or other immediate threats, but it does forbid certain knowing lies, see N.J. Stats. 2C § 33-3…
Such bans on these sorts of knowing lies are likely constitutional (and might even be constitutional if applied to “reckless” falsehoods, which is to say statements that the speaker knows are probably though not certainly false).
