In the News
Law360: Avenatti Can’t Keep Free Speech Group Out Of Fox Suit
By Jeff Montgomery
The Third Circuit Court of Appeals rejected on Friday Michael Avenatti’s effort to bar a free speech group’s friend of the court brief opposing his jurisdiction-focused attempt to revive and remove to state court a dismissed federal defamation suit against Fox News in Delaware.
Circuit Judge Peter J. Phipps approved without elaboration the request from the Institute for Free Speech, filed in December, to proceed as an amicus curiae and file a brief in support of Fox News and 11 commentators and reporters accused by Avenatti of making defamatory statements about his arrest in California in 2018 for suspected domestic abuse.
[Ed. note: Read our amicus brief in Avenatti v. Fox News Network et al. here.]
Washington Examiner: Facebook strikes a blow against free speech
By Nathan Maxwell
Beginning Jan. 19, Facebook will no longer allow advertisers to identify users based on their interactions with content related to “health, race or ethnicity, political affiliation, religion, or sexual orientation.” This means that grassroots groups, nonprofit organizations, and political campaigns will have a harder time reaching the people who would want to hear from them.
Unsurprisingly, this action has received swift condemnation from major political interests, such as the four campaign arms of the Democratic Party. But political powerhouses have the least to fear. It’s the smaller groups that will hurt the most.
Large, established organizations can afford costly workarounds, such as storing and referencing their own data on voters to aid their messaging. If necessary, they also have the resources to build an online presence without precise ad targeting tools.
But new groups or those representing new causes must reach prospective supporters efficiently to survive…
The same is true of political campaigns. Powerful incumbents and celebrity candidates lose little from Facebook’s new policy, but political newcomers who lack their opponents’ name recognition and deep pockets will struggle to gain the momentum needed to build a competitive campaign.
ICYMI
12 Years Later, the FEC Finally Agrees to Acknowledge Super PACs
By Luke Wachob
Super PACs came into existence in 2010 – that’s twelve years ago. They have spent roughly $5 billion dollars since that time, leaving their mark on six different election cycles.
On Thursday morning, the Federal Election Commission finally decided to include them on its registration forms.
That may sound odd to those who are not familiar with the FEC. How could all that time and money pass without the government so much as creating a form for super PACs? The answer reveals much about the Federal Election Commission, what ails it, and hopes for a brighter future.
Supreme Court
Bloomberg Government: McConnell Renews Drive to Scrap Fundraising Curbs in Court Case
By Kenneth P. Doyle
[Senate Minority Leader Mitch] McConnell is urging the court to use its first campaign finance case since 2014 to get rid of a ban on unlimited “soft money” contributions to political parties, disclosure requirements for political ad sponsors, and other remaining restrictions of the landmark 2002 Bipartisan Campaign Reform Act, also called the McCain-Feingold law (Public Law 107-155).
The Kentucky Republican’s advice came in a brief filed in a narrower challenge brought by Sen. Ted Cruz (R-Texas) that legal experts say is likely to resume the court’s march toward deregulation of campaign financing…
For McConnell, the court case is an opportunity to energize the opposition to fundraising curbs and underscore that any effort to expand campaign finance laws would be dead on arrival if Republicans regain control of the Senate in 2022.
The most immediate effect could be to encourage more wealthy, self-funded candidates to run for office by striking restrictions on using contributors’ money to repay candidate loans.
Washington Post: In this case, the Constitution requires a city to display a religious flag
By David Cole
The ACLU has long fought to enforce the separation of church and state. We were the plaintiff in both Allegheny County v. ACLU and McCreary County v. ACLU, in which the Supreme Court held that the Constitution’s establishment clause barred the displays of a crèche and the Ten Commandments in county courthouses. So why are we supporting a Christian organization’s argument in the Supreme Court case Shurtleff v. Boston that it has a right to display a flag bearing the Latin cross in front of Boston’s City Hall? The short answer: The First Amendment requires it.
For more than a decade, Boston has made one of the flagpoles in front of City Hall available to the public for temporary displays, essentially on a first-come, first-served basis. It has flown political flags, national flags and the flags of private civic organizations — including the Chinese Progressive Association, the National Juneteenth Observance Foundation, Bunker Hill Association and Boston Pride. The city’s website and application materials refer to the flagpole as a “public forum,” and invite members of the public to apply to fly their flags there temporarily — usually for just a few hours on a given day. Over a 12-year period, the city displayed 284 such flags, and never denied a single request. In most instances, it did not even ask to see the flags before approving their display.
Until Camp Constitution came along.
Congress
New York Times: Senate Democrats Press Ahead With Debate on Voting Rights Bill
By Catie Edmondson
Senate Democrats plan to press ahead this week with an effort to push new voting rights protections through Congress, in an all but doomed attempt to enact a key piece of President Biden’s agenda that has been undercut by members of his own party.
Politico: What Democrats put in their voting rights megabill — and what got left out
By Zach Montellaro
The voting provisions have gotten the most attention in this bill, but the legislation also proposes dramatic changes to federal campaign finance laws in the United States. It includes the DISCLOSE Act, which would force a slew of politically active nonprofit organizations — which can keep their donors secret under current law — to publicly disclose their funders. It would also apply disclosure requirements to groups that spend supporting or opposing federal judicial nominations, and it lays out firmer bans on foreign campaign contributions. . . .
The bill would also create various public financing programs for House elections. One is titled the “optional democracy credit program,” allowing states to opt into a program that would provide voters a “democracy credit” of about $25 which they can give to a candidate. The bill, separately, creates a 6-to-1 public matching program for small-dollar donors to House candidates. Republicans have opposed these provisions particularly vocally.
FEC
Washington Post: FEC report shows how national party committees allegedly blow past contribution limits
By Isaac Stanley-Becker
A fundraising committee operated jointly by the Trump campaign and the Republican National Committee in 2016 served as a vehicle for state parties to pass more than $27 million to the national party in possible violation of contribution limits, the Federal Election Commission’s general counsel found almost three years ago.
The general counsel’s report, available since 2019, was newly released Friday in an updated and unredacted form because of a development in an associated case. It mirrors findings from the FEC general counsel’s office about similar activity by a joint fundraising committee benefiting Hillary Clinton in 2016. The alleged sum funneled through state party committees in that case was even larger: $112 million.
The inquiry into Trump Victory, which gained little attention at the time, brings new light to what some FEC commissioners and campaign finance experts see as a loophole made possible by the Supreme Court’s decision in the 2014 McCutcheon v. FEC case, which invalidated caps on how much individuals can contribute overall to federal candidates and committees.
PACs
Election Law Blog: “Corporate Political Spending is Bad Business: How to Minimize the Risks and Focus on What Counts”
By Nicholas Stephanopoulos
Leo Strine and Dorothy Lund have a new article on the problems created by corporate political spending:
In our article, Corporate Political Spending is Bad Business, we explore the deep problems that corporate political spending poses for corporations and their management. In particular, we highlight the lack of legitimacy underpinning management decisions to spend treasury dollars on political causes as well as the “hypocrisy trap” for companies that donate to causes that undermine their stated values.
