In the News
Washington Post: Trump’s fantasy claim that Michael Cohen’s hush-money payments were no crime
By Salvador Rizzo
Some conservatives argue that it was a big stretch for federal prosecutors in Manhattan to turn the hush-money payments into criminal charges for Cohen. Here’s Bradley A. Smith, a former Republican chairman of the Federal Election Commission, writing in the National Review:
The U.S. Attorney is placing all his chips on the language “for the purpose of influencing an election.” Intuitively, however, we all know that such language cannot be read literally – if it were, virtually every political candidate of the past 45 years has been in near-constant violation. The candidate who thinks “I need to brush my teeth, shower, and put on a nice suit today in order to campaign effectively” is surely not required to report as campaign expenditures his purchases of toothpaste, soap, and clothing. When he eats his Wheaties – breakfast of champions, and surely one cannot campaign on an empty stomach – his cereal and milk are not campaign expenses. When he drives to his office to start making phone calls to supporters, his gas is not a campaign expense.
Another Republican former FEC commissioner, Hans von Spakovsky, wrote that these hush-money payments shouldn’t count as campaign funding…
Cohen says he committed a crime, prosecutors say he committed a crime, a judge found that he committed a crime, and usually those are all the ingredients you need for a crime.
Trump says he never ordered Cohen to break the law and silence Daniels and McDougal. But when he says such payoffs are not criminal to begin with, his defense goes off the rails. Trump is presenting a legal theory as fact to minimize his fixer’s crimes. It’s a bizarre claim to make with Cohen heading to prison, and it merits Four Pinocchios.
Election Law Blog: Is WaPo Fact Checker Right to Give 4 Pinnochios to Trump’s Claim That Hush Money Payments to Former Mistresses Were Not a Campaign Finance Crime? I Would Give None.
By Rick Hasen
As ELB readers know, I think that the payments could well be a crime, but there is a non-frivolous argument put forward by Brad Smith and others that it is not. After further reflection, I wrote a post called John Edwards, Donald Trump and the Criminalization of Politics which discusses how complex the issue is. While I still believe Trump could face criminal liability, the claim he does not does not merit any Pinocchios, much less four. It is a legal question that would have to be tested in court.
ConservativeHQ: Democrats’ First Bill Attacks Free Speech Rights Of Conservatives
[O]ur friends at the Institute for Free Speech released an exhaustive analysis of three speech-chilling sections of HR 1. Those provisions would regulate political speech on the Internet, violate the privacy of advocacy groups and their supporters, and compel speakers to include lengthy government-mandated messages in their communications.
“By making it harder for Americans to speak about government, a better title for the bill would be the ‘For the Politicians Act,'” said Institute for Free Speech President David Keating.
The Institute’s analysis finds these sections of H.R. 1 would benefit politicians and campaign finance attorneys while harming the public. The legislation’s many restrictions and regulations on speakers would make it harder for Americans to promote ideas about government and to hold elected officials accountable. H.R. 1 would also subject speakers to increased costs from legal and administrative compliance, liability risk, and would harm donor and associational privacy for civic groups that speak about policy issues and politicians.
“H.R. 1 appears to be a slapdash effort to stitch together every unworkable and unconstitutional idea from the past decade about how to increase regulation of Americans’ free speech rights,” said Institute for Free Speech Senior Fellow Eric Wang. “While the bill may be dead on arrival, it is nonetheless a deeply troubling statement of Congress’s priorities and attitudes towards the First Amendment.”
The Courts
Just Security: Roger Stone Indictment Implicates Trump Campaign in Election Law Violations
By Paul Seamus Ryan
A federal grand jury has indicted Roger Stone for obstructing the federal investigation into Russian interference in the 2016 presidential election, making false statements to the federal government, and witness tampering. The details of Stone’s allegedly illegal activities laid out in the indictment implicate the Trump campaign, and perhaps President Trump himself, in illegally soliciting a campaign contribution from a foreign national-namely, hacked emails damaging to Hillary Clinton, in the possession of WikiLeaks founder Julian Assange and originating with Russian military intelligence hackers.
Congress
U.S. House Committee On The Judiciary: Tuesday at 10 A.M.: House Judiciary to Hold Hearing on H.R. 1, For The People Act
On Tuesday, January 29, 2019 at 10:00 a.m., House Judiciary Chairman Jerrold Nadler will hold a hearing on portions of H.R. 1, the For the People Act, a sweeping package that offers the most transformational and comprehensive pro-democracy reforms in more than four decades. The hearing will focus on ensuring election access, restoring voting rights, protecting the integrity of our elections, reforming our ethics laws and campaign finance reform.
Witnesses:
– Vanita Gupta, President and Chief Executive Officer, Leadership Conference on Civil and Human Rights
– Sherrilyn Ifill, President and Director-Counsel, NAACP Legal Defense and Educational Fund
– Sarah Turberville, Director, The Constitution Project, Project on Government Oversight
– Adav Noti, Senior Director of Trial Litigation and Chief of Staff, Campaign Legal Center
– J. Christian Adams, President and General Counsel, Public Interest Legal Foundation
– Hans von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation …
The issues that will be referred to the Judiciary Committee include: …
Campaign Finance Reform:
Expresses that Congress finds that the Citizens United decision is detrimental to democracy and that the Constitution should be amended to clarify Congress’ and the States’ authority to regulate campaign contributions and expenditures.
Bloomberg: Wall Fight Derails Democrats’ Plan to Focus on Campaign Themes
By Arit John
Democrats introduced H.R. 1. on Jan. 3. The House Judiciary Committee announced a Jan. 29 hearing for the legislation moments after the House passed a deal to end the shutdown Friday night…
[H.R. 1] would also expand requirements for independent groups to disclose donors and political expenditures and define banned coordination between super-political action committees and campaigns.
The legislation has been backed by a coalition of outside groups including End Citizens United, a political action committee advocating for an overhaul of campaign fiance laws. Tiffany Muller, the group’s president and executive director, said the bill still has good momentum, but the shutdown has “obviously complicated everything.”
“If there is one piece that the shutdown has really hampered it is the ability to go back to voters and have that really clear message of ‘I came here to fix Washington, we introduced H.R. 1, it’s one of the first things we’re gonna pass, here’s what it does,'” Muller said.
Norfolk Daily News: The wrong way forward
By Rep. Adrian Smith (R-NE-03)
On the first day of the new Congress and amidst a partial shutdown of the federal government, newly-minted House Speaker Nancy Pelosi heralded the introduction of H.R. 1, the For The People Act, which she claimed would “clean up elections and restore integrity to government.” Much to the contrary of what its name suggests, a more partisan bill could scarcely be imagined. At its core is a list of changes to everything from campaign finance laws to the Federal Elections Commission (FEC), which will do anything but clean up elections…
Another change would require advocacy groups to disclose the name of any donor giving more than $10,000 – even if the organization doesn’t support any political party or candidate in particular. This would allow the further naming and shaming of donors whose purpose is to educate on issues rather than elect candidates. As the 2013 scandal involving then-IRS Director of Exempt Organizations Lois Lerner and the targeting of conservative non-profit groups for additional scrutiny taught us, federal bureaucrats are not above betraying the public trust when dealing with organizations they don’t agree with.
The bill also borrows from the Honest Ads Act, which under the guise of stopping Russia-style election interference would subject online advertisements – even those local to Nebraska – to federal review and regulation…
To top it all off, the bill changes the six-member composition of the FEC, which by design results in a more deliberative approach to regulating campaigns and thereby free speech. Instead, its new 3-2 composition would allow the FEC to be weaponized against the political opposition of the party holding the White House.
Conservative Action Project: Conservatives Oppose H.R. 1, the Ultimate Fantasy of the Left
Conservatives are united in opposing H.R. 1, the attempt by House Democrats to fundamentally undermine the American electoral system.
While they cloak the bill in terms of “restoring democracy” and “preventing corruption,” the legislation has one goal: to protect incumbents, at the expense of the First Amendment, federalism, and individual voter integrity.
H.R. 1 undermines the First Amendment. H.R. 1 undoes key Supreme Court cases that protect elections as fundamental to free speech. It would allow the Federal Election Commission to track and catalogue more of what Americans are saying, register even very small political donations, and make public those who donate to different charitable and nonprofit organizations. The legislation will subject private citizens to intimidation and harassment for their private and political beliefs, far broader than what was done in the IRS targeting scandal in 2013…
H.R. 1 attacks individual voter integrity. America was founded on the principle of “one person, one vote.” H.R. 1 turns this on its head by weaponizing every aspect of the political regulatory system. The Federal Election Commission, which is currently a neutral body, would be given a 3-2 makeup, guaranteeing a partisan outcome with little accountability toward the actual votes which are cast. H.R. 1 also includes a 600 percent government match for political donations, and authorizes even more public dollars to campaigns…
H.R. 1 would cause sweeping and irrevocable damage to the free speech, privacy, and integrity that are central components to free and fair elections in America.
First Amendment
Washington Post: Johns Hopkins to buy Newseum building in D.C. as journalism museum plans to relocate
By Nick Anderson and Peggy McGlone
Johns Hopkins University is buying the landmark building that houses the Newseum for $372.5 million, a purchase that will enable the struggling cultural institution devoted to news and the First Amendment to seek a new home in the Washington area.
The Freedom Forum – the private foundation that created the Newseum and that is its primary funder – said the museum will remain open at 555 Pennsylvania Ave. NW for the rest of the year…
“This was a difficult decision, but it was the responsible one,” Jan Neuharth, chair and chief executive of the Freedom Forum, said in a statement. “We remain committed to continuing our programs – in a financially sustainable way – to champion the five freedoms of the First Amendment and to increase public awareness about the importance of a free and fair press. With today’s announcement, we can begin to explore all options to find a new home in the Washington D.C. area.” …
Museum officials have not identified potential locations, but the next version of the Newseum will most likely be smaller.
“Since we opened our doors on Pennsylvania Avenue, technology has advanced to such a degree that we can achieve a much broader reach than we ever thought possible 11 years ago,” Jan Neuharth said in a statement. “Our world-class exhibits can be displayed in a smaller and nimbler footprint, and we can continue to travel them across the country and around the world.”
The States
The Oklahoman: Oklahoma leaves grassroots lobbying alone
By Nolan Clay
The Oklahoma Ethics Commission will not be regulating grassroots lobbying after all.
The watchdog agency had been considering disclosure requirements for advocates who buy ads supporting or opposing legislation.
Commissioners Friday let the proposed indirect lobbying rule die without a vote after an outcry against it.
Most of those against the proposal called it an infringement on free speech. Leaders of nonprofits involved in politics complained the disclosure requirements would drive away donors who want to remain anonymous.
More than 3,200 people signed a petition against the proposal. The Oklahoma Council of Public Affairs collected the signatures, saying the Ethics Commission “plans to require warning labels on some political speech and punish you if you don’t comply.”
Speakers raised objections to the proposal during a series of public hearings before the Ethics Commission. One said Friday the rule would keep citizens in small communities from taking action like banding together to buy a Facebook ad about a bill.
“They may look at that and very well say, ‘The risk of being out of compliance is simply too great. The cost of compliance is simply too great,'” said Ryan Kiesel, a former state representative who is now executive director of the American Civil Liberties Union of Oklahoma.
“And they may throw their hands up and say we’re simply not going to engage in the democratic process. We’re not going to raise our collective voice to our elected representatives,” Kiesel said. “And we would never know about it.”
InsideSources: Should a Nonprofit Disclose Pro Bono Legal Services Under Campaign Finance Law?
By Kate Patrick
[T]he foundation announced it will appeal to the Supreme Court of the United States (SCOTUS) over the Washington State Supreme Court’s ruling that the foundation violated Washington’s Fair Campaign Practices Act (FCPA) by not disclosing the pro bono legal services…
[T]he Washington State Supreme Court ruled against the foundation, saying the spirit of the law calls for utmost transparency regarding donations and services rendered on behalf of a political campaign.
The majority opinion also pointed out that according to the local law, initiatives are considered “ballot propositions” and “campaigns” once filed with city clerks. So according to local law, the initiatives were in fact “ballot propositions,” and the foundation should have disclosed its involvement. But the local law also assumes that after a city clerk receives a ballot initiative, then the citizens sign the petition for the city council to either adopt the initiative or put it to a vote.
That’s not what happened in the cities of Chelan, Sequim, and Shelton: the citizen activists obtained signatures before submitting the ballot initiative to the city clerks.
“The majority said, yes this is vague but we’re going to interpret the law in the spirit of campaign law in Washington which favors disclosure,” Maxford Nelson, the foundation’s director of labor policy, told InsideSources. “So we’re going to come down on the side of increased transparency. The minority took the view that we think is correct, that when it comes to regulations of speech and political activity, you’re dealing with First Amendment issues and to enforce a vague law that burdens the exercise of free speech is long thought to be unconstitutional. So the minority took the view that the law is vague and the government should not be enforcing vague law in a burdensome way.”
Washington Post: Md. bill would loosen restrictions on donations for Prince George’s candidates
By Rachel Chason
Maryland lawmakers are considering removing strict campaign finance restrictions on Prince George’s county executives that they say hurt Rushern L. Baker III during his gubernatorial bid last year.
The bill being pushed in the General Assembly would repeal statutes prohibiting developers with pending projects in Prince George’s from donating to county executives or slates including them.
Nine years ago, Baker (D), who took office three weeks after his predecessor was arrested on public corruption charges, led efforts to substantially strengthen the ethics law as part of his effort to rehabilitate the county’s image.
But today, lawmakers say the county’s reputation is much improved, and rolling back the restrictions – which are unique to Prince George’s – is necessary for candidates from the county to compete statewide.
“The county executive position has been a launchpad for statewide office . . . but for Prince Georgians to have a shot, there needs to be an even playing field,” said Del. Dereck E. Davis (D-Prince George’s), a longtime friend of Baker’s who also works as deputy director of the county’s Office of Community Relations and wrote the bill.
The legislation would not lift the prohibition on developer donations for County Council members, who handle land-use decisions. The proposal was approved by the Prince George’s delegation in Annapolis on Friday and will be considered in a committee hearing next month.
By Rebecca Moll Freed and Avi Kelin
New Jersey Senate Bill S1500 would, if passed and signed into law, represent the greatest change to New Jersey’s campaign-finance law in many years.
The proposed legislation unanimously passed the Senate Budget and Appropriations Committee on January 17, 2019 and would, among other changes, create a new category of New Jersey political committee called an “independent expenditure committee.” Although independent expenditure committees may already be required to file regular reports with the New Jersey Election Law Enforcement Commission, under the proposed legislation, an independent expenditure committee would be defined to expressly include 501(c)(4) organizations. Thus, any person or group-specifically including 501(c)(4) social-welfare organizations and IRS 527 political committees-that raises or expends $3,000 or more per year for the purpose of attempting to influence any New Jersey election, public question, or legislation and regulation would be covered. Independent expenditure committees would be required to file regular reports with the New Jersey Election Law Enforcement Commission, disclosing in detail the committee’s contributions received and expenditures made. The bill, as currently drafted, would require retroactive disclosures back to January 1, 2018. Although it remains to be seen whether retroactive application would pass legal muster, 501(c)(4)s must now begin considering whether their activities have in the past or will in the future create coverage under New Jersey’s possible expanded campaign-finance definitions.
In addition, the bill would increase contribution limits for various New Jersey political recipients.
U.S. News & World Report: Bills Target Money in Politics, Influence of Lobbyists
By Marina Villeneuve, Associated Press
The bills, sponsored by Democratic Sen. Justin Chenette, are set for public hearings Wednesday and Feb. 6 at the Maine Statehouse. Similar bills have failed in the past under Democrats and Republicans amid concerns that current ethics rules are strong enough, but Chenette said several of his bills have buy-in from Democratic leaders wielding newfound control in the Senate and House…
Currently, lawmakers cannot accept contributions from lobbyists and their employers when the Legislature is in session. But that creates a situation where Maine lawmakers wait until the minute lawmakers are out of session to start such fundraising.
One of Chenette’s bills would prevent any contributions for lobbyists or their employers year-round. He says the Senate Democratic caucus has made the bill a “top legislative priority.”
Another bill sponsored by Chenette would prevent lawmakers from using their PACs for personal profit. That bill, which is co-sponsored by Senate President Troy Jackson, is in response to the 2017 revelation that a former Republican lawmaker failed to disclose that he lent his business money from his PAC.
Publicly funded candidates can’t run their own PACs in the first place. Chenette also wants to prevent privately funded candidates from running such groups.
Another of Chenette’s bills would prohibit former lawmakers from lobbying for four years, up from one year currently. That bill would also remove the “safe harbor” in current law that allows former lawmakers to immediately lobby up to eight hours a month.
