In the News
Election Law Blog: 8th Circuit Agrees to Rehear En Banc Case Involving Missouri Lobbying Registration
By Rick Hasen
Press release via email:
The Institute for Free Speech applauds the Eighth Circuit Court of Appeals’ significant and unusual decision to rehear Calzone v. Missouri Ethics Commission.
The case concerns a Missouri law that forces unpaid citizen activists to comply with the same registration, reporting, and disclosure requirements as professional lobbyists. In November, a three-judge panel of the Eighth Circuit upheld that law (over a dissent by Judge David Stras) against a challenge by Ron Calzone, a Missouri citizen, who regularly testifies before the Missouri General Assembly. As Judge Stras argued in his powerful dissent, “The [Missouri] law seemingly sweeps up all unpaid political advocacy by anyone who acts on behalf of someone else, no matter how often it occurs and regardless of its purpose.”
On Monday, the Eighth Circuit vacated the panel ruling and granted en banc review.
New from the Institute for Free Speech
Statement on North Dakota H.B. 1521
The Institute for Free Speech released the following statement today on North Dakota H.B. 1521:
The House Ethics committee is currently considering legislation (H.B. 1521) to implement Measure 1 as approved by voters. However, Measure 1 contains severe constitutional flaws. The measure imposes vague rules on individuals and groups that wish to speak about public matters and state government. Many of these rules are likely unconstitutional.
“H.B. 1521 does not and cannot fully resolve Measure 1’s constitutional problems. While the Legislative Assembly has an obligation to implement the measure, it cannot ignore our First Amendment rights to speak and publish. Ultimately, the courts as well as the legislature will likely play a role in determining how Measure 1 is adapted into law,” said Institute for Free Speech Legal Director Allen Dickerson.
The Institute for Free Speech previously released an analysis of Measure 1’s threats to free political speech. That analysis is available here.
Congress
Office of U.S. Senate Majority Leader Mitch McConnell: H.R. 1: A Democrat Political Power Grab
U.S. Senate Majority Leader Mitch McConnell (R-KY) made the following remarks on the Senate floor regarding House Democrats’ proposal to centralize electoral control in Washington, D.C. and to erode free speech: …
“Today, I’d like to focus on just one of the legislation’s major victims — the American taxpayer. H.R. 1 would victimize every American taxpayer by pouring their money into expensive new subsidies that don’t even pass the laugh test. In several new ways, it would put every taxpayer on the hook to line the pockets of candidates, campaigns, and outside consultants.
“Do you look forward to the bumper stickers, robocalls, attack ads, and campaign mail that descend on the country in seemingly-endless cycles? Speaker Pelosi must think you do, because she wants to you pay for these things with your tax dollars. This bill creates brand-new government subsidies both for political campaign donors and for the campaigns themselves. The federal government would start ‘matching’ political donations the same way some employers match gifts to charity. You would literally be funding attack ads for the candidates you disagree with!
“Maybe that’s why every Democrat opposed our tax cuts for middle-class families and small businesses. They were counting on that money to pull off this stimulus package for campaign consultants. And for what reason? To increase competition? Well, studies have shown that incumbents win just as often in taxpayer-funded elections as they do when campaigns are funded with private money. To reduce corruption? Hardly. Jurisdictions that have toyed with taxpayer-funded political systems have turned out to be replete with misappropriation, personal use, straw donors, and public corruption scandals.
“So I remain curious why, exactly, the Democrat Politician Protection Act wants to offer the American people’s money to thousands of candidates that run for the House of Representatives every two years, whether they support those candidates or not. They want citizens to bankroll political materials that they totally disagree with.”
Center for Responsive Politics: Democrats’ money-in-politics reform package draws praise – and strong objections
By Raymond Arke
On Tuesday, the House Judiciary Committee held its hearing on the For the People Act (HR 1), which promises numerous election reforms from voting rights to campaign finance. Six expert witnesses appeared before the committee testifying both in favor and against aspects of the proposed legislation.
One of the witnesses, Adav Noti, senior director of trial litigation and chief of staff for the nonpartisan Campaign Legal Center supported the efforts of the legislation which includes sections which add more “dark money” disclosure – the DISCLOSE Act – and introduce controls on digital spending – the Honest Ads Act – among other things.
“Limitless spending is a threat,” Noti said in his testimony. He argued that corporate spending is “drowning out” the voices of regular people in elections, something Noti believed the majority opinion in Citizens United may not have realized.
Noti also warned about “more and more” coordination between outside spending groups and candidates’ campaigns, specifically citing the case of the NRA coordinating with the Trump campaign in 2016. The For the People Act includes the Stop Super PAC-Candidate Coordination Act which defines coordinated spending and imposes penalties for those who violate those definitions.
The bill also would create small-donor powered public financing of campaigns. Hans von Spakovsky, manager of election law reform initiative and senior legal fellow for the right-wing Heritage Foundation, vigorously testified against the proposed steps toward public financing. He said the current optional system is fine, but the suggested changes would be “unconstitutional.” He asserted it “violates the basic associational rights” of American citizens.
Townhall: H.R. 1 is Dangerous for Democracy
By Ross Marchand
Introduced by Rep. John Sarbanes (D-Md.), this political “reform” legislation uses the boogeymen of “dark money” and foreign influence to curtail First Amendment protections and eviscerate donor privacy…
H.R. 1 requires online platforms such as Facebook and Twitter to maintain a public database of persons purchasing more than $500 worth of political advertisements per year. Additionally, all groups spending money on elections would have to disclose donors giving over $10,000. These two changes represent a broad firewall against anonymity, despite donor privacy being a fundamental bedrock of democratic politics. This is not just a philosophical argument; actual lives depend on continued anonymity.
The Supreme Court upheld the constitutional right to donor privacy in 1958 in NAACP v. Alabama. According to the Goldwater Institute, “The decision was essential to efforts by the National Association for the Advancement of Colored People to end segregation in the South because it allowed their supporters to keep giving without having to fear violent retaliation.” …
Rather than campaign finance red herrings, Rep. Sarbanes should focus on restrictions that hamper political parties that limit their ability to contribute to candidates and coordinate with candidates.
According to American Enterprise Institute scholars Peter Wallison and Joel Gora, strict limits on party contributions to House and Senate candidates have resulted in inefficient candidate-centered elections. Since candidates are more likely to have single (“pet”) issues than parties, they’re more vulnerable to special interests than parties. Therefore, removing restrictions on party fundraising would restore parties’ role as an arbiter of national factions and interest groups. This would surely make a bigger difference than harassing fairly minor donors and groups doing nothing wrong.
By Fred Wertheimer
H.R. 1 addresses the essential need for an alternative financing system by creating a small donor, public matching funds system for presidential and congressional candidates to use on a voluntary basis…
The Supreme Court in Buckley v Valeo made clear that a small donor, public matching funds system is constitutional. In upholding the presidential public financing system created following the Watergate scandals, the Court found that “Congress was legislating for the ‘general welfare.'”
The Supreme Court held that “Rather than abridging, restricting, or censoring speech, it represents an effort to use public money to facilitate and enlarge public discussion and participation in the electoral process.” …
Washington corruption today stems from the Supreme Court decision in Citizen United that opened the floodgates to allow massive amounts of unlimited, influence-seeking contributions back into federal elections. These are the same kind of contributions that led to the Watergate campaign finance scandals of the 1970s and the unlimited “soft money” contribution scandals of the 1990s…
As long as Citizens United remains the law of the land, we cannot stop unlimited contributions from flowing into federal elections through Super PACs and nonprofit groups.
What we can do, however, is provide federal candidates with an alternative way to finance their campaigns in order to run for office free from dependency on corrupting contributions and the policy demands that follow them. This system is provided in H.R. 1.
The States
ACLU of North Dakota: ACLU of North Dakota Concerned About Constitutionality of Amendment XIV
By Janna Farley
As North Dakota lawmakers consider House Bill 1521 and Senate Bill 2148, the ACLU of North Dakota has serious concerns about the implementation of Amendment XIV and its constitutionality under the U.S. Constitution…
The ACLU of North Dakota opposed the measure prior to the election out of concern that it would institute a host of new restrictions and regulations on political speech and advocacy that would violate the First Amendment rights of all residents…
Privacy in one’s associations is integral to the freedom of speech guaranteed by the Constitution – particularly when unpopular opinions are expressed.
This bill isn’t just about election-related speech. It could also apply to speech intended to “influence” state government actions. Citizens calling their legislators to advocate for changes in a particular law or advocacy groups campaigning in support of legislative and regulatory issues that matter most to them might find themselves caught up in trying to figure out these confusing new requirements, or, worse, may find themselves in violation of the law and subject to penalty.
“Requiring large or small advocacy groups and non-profit organizations to disclose their donors when they speak about controversial issues like gun rights, religious liberty or abortion would result in less speech about those issues,” said Heather Smith, executive director of the ACLU of North Dakota. “That is a clear harm to public discourse and a result directly opposed to the values embodied by the First Amendment. To protect the First Amendment speech and association rights of North Dakotans, the state should include precise definitions limiting the application of this law to ‘express advocacy’ of the election or defeat of a candidate for office or the adoption or rejection of a statewide referendum or ballot initiative.”
Press of Atlantic City: Our view: Dark money rules could be used to further entrench political parties
New Jersey may be on the verge of requiring more disclosure of who donates money to certain nonprofits that spend some of their money promoting political issues and indirectly candidates…
It could also stifle some legitimate constitutionally guaranteed political expression, and could even be used by the two main political parties to discourage challenges to their perpetual control of government…
This month the Senate Budget and Appropriations Committee unanimously advanced a new state requirement that independent advocacy groups disclose donors giving more than $10,000 a year…
The American Civil Liberties Union of New Jersey opposes the bill on First Amendment grounds and has a legitimate concern. It worries that donors would fear that they’d be targeted for their political views and stop giving…
The case against undisclosed donations to issue-advocacy groups doesn’t look strong enough yet to proceed with a bill that looks like it might create more problems than it solves.
WHYY: Issue advocacy groups say N.J. ‘dark money’ bill unfairly targets their private donors
By Joe Hernandez
“I believe it will have a chilling effect on some donors who want to keep their donations anonymous,” said Marie Tasy, executive director of New Jersey Right to Life, a Piscataway-based group that opposes abortion.
Contributors may fear blowback from employees or customers if their support for the organization became public, Tasy said. And others want to avoid being solicited for donations by other groups, she said.
“We work on what is sometimes a controversial issue,” said Kim Callinan, CEO of Compassion and Choices, which advocates laws guaranteeing access to medical aid for the dying.
“There is a minority of people who are very opposed to the legislation that we’re trying to pass. They can get hostile and confrontational, and harass and intimidate [supporters], and it’s not fair to put a donor through that,” she said.
The legislation would be retroactive and require organizations to disclose their donors back to Jan. 1, 2018. The idea of identifying contributors who may have been promised anonymity and donated before they were aware of this proposal is “unconscionable,” Callinan said…
“We advocate for transparency, but we also advocate for privacy,” said Amol Sinha, executive director of the ACLU-NJ.
“In the advocating for transparency that we do, we attribute that to those public entities that are going to govern us. And that’s incredibly important,” Sinha said. “But when we are talking about disclosing individuals who give to organizations that are protected by the First Amendment, I think we’re talking about a different thing.”
Sinha told legislators that the bill could prompt lawsuits from organizations such as his opposing the disclosure requirement.
Washington Post: Northam’s push to limit campaign contributions fails
By Associated Press
Virginia Gov. Ralph Northam’s proposal to put new limits on campaign contributions is finding little love in the General Assembly.
A Senate panel killed a Northam-backed bill Tuesday to limit contributions with the help of Northam’s fellow Democrats.
Northam said before the session started that lawmakers should put a $10,000 limit on campaign contributions and bar donations from corporations. The governor said the measures would help promote better government.
Republicans chided Northam for not leading by example. The governor is currently accepting large corporate donations for his political action committee.
Northam has said the donations have no effect on how he governs.
U.S. News & World Report: Small Donors Silenced by Big Money in Politics
By Peter Olsen-Phillips
A report released Monday by the Brennan Center for Justice at New York University Law School argues that a public matching system would not only have increased the amount of money candidates received from small donors but also expanded the racial and economic diversity of donors. The center, which advocates for public finance systems to amplify small donors’ influence, based its comparison of giving in statewide elections to contributions to New York City Council races, which offer a public financing program that multiplies the impact of small individual donations by $6 to $1.
Statewide finance reform has been a point of emphasis for Democratic Gov. Andrew Cuomo, who recently signed a bill closing the state’s so-called “LLC loophole,” that exempted limited liability corporations from regular corporate contribution limits and included public financing of elections in his 2019 budget proposal…
“In New York State, not only do we have a massive amount of money being raised by just a few people, but a very disengaged public,” says Lawrence Norden, deputy director of the Brennan Center’s Democracy Program. “New York ranks at the bottom of small donor participation because there’s so much big money in state politics.” A robust public finance system widens the pool of candidates and allows more women and people of color to for office, he adds.
If the Empire State does expand public funding candidates, it would join 14 other states in offering some form of public financing, according to research by the National Council of State Legislatures.
