In the News
Say Anything Blog: Free Speech Groups, Including the ACLU, Oppose Legislative Efforts to Implement Measure 1
By Rob Port
[F]ree speech groups which opposed Measure 1 during the election continue to oppose its implementation by the Legislature. The ACLU just sent out a press release expressing their continued concerns…
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…
The Institute for Free Speech also sent out a press release…
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.
New from the Institute for Free Speech
Analysis: H.R. 1 Would Create a Speech Czar and Enable Partisan Enforcement of Campaign Finance Laws
The Institute for Free Speech today released an analysis of H.R. 1’s proposed changes to the Federal Election Commission (FEC)…
“H.R. 1 threatens to take us back to the days of Watergate when campaign finance laws were weaponized against the president’s opponents. The bill transforms the bipartisan FEC into a partisan tool of the president, removes checks and balances at the Commission, and biases judicial proceedings against speakers. This is one more reason H.R. 1 should be known as the ‘For the Politicians Act,'” said Institute for Free Speech Chairman and former Federal Election Commission Chair Bradley A. Smith…
Among other outcomes, H.R. 1’s changes to the FEC would:
- Transform the Federal Election Commission from a bipartisan, 6-member agency to a partisan, 5-member agency under the control of the president.
- Empower the Chair of the Commission, who will be hand-picked by the president, to serve as a de facto “Speech Czar,” with the sole power to, among other things, appoint (and remove) the Commission’s Staff Director, prepare its budget, require any person to submit, under oath, written reports and answers to questions, issue subpoenas, and compel testimony.
- Time the enactment of this provision to allow the president elected in 2020 to ensure continued one-party control of the Commission through at least 2027.
- Expand the General Counsel’s power while eroding accountability among the Commissioners. Intrusive investigations could begin without any approval from the Commissioners.
- Create new standards of judicial review that weaken the rights of respondents in Commission matters.
- Dispose of the requirement in existing law that the Commission’s Vice Chair come from a different party than the Chair, further allowing power at the agency to be consolidated within one party.
The Institute for Free Speech previously analyzed three other speech-chilling provisions of H.R. 1. Those sections of the legislation 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. That analysis is available here.
By Bradley A. Smith
While most of the attention on H.R. 1 has focused on “hot” issues, such as earmarking government subsidies for political campaigns, gerrymandering, and new restrictions on grassroots organizations that engage in public affairs, twenty pages of the bill are devoted to the unsexy, yet vitally important, issue of the Federal Election Commission’s (FEC) composition and operating procedures…
As the late Sen. Alan Cranston (D-Ca.) warned during debate on legislation creating the agency, “We must not allow the FEC to become a tool for harassment by future imperial Presidents who may seek to repeat the abuses of Watergate. I understand and share the great concern expressed by some of our colleagues that the FEC has such a potential for abuse in our democratic society that the President should not be given power over the Commission.”[4] That concern led to Congressional adoption of the present method of selecting Commission members.
Those concerns also caused Congress to structure the Federal Election Commission so that a president could not install a partisan majority that could abuse campaign regulations to bludgeon their opponents.
Bipartisanship is not easy. It requires both sides to recognize they will not always get their way. But for over 40 years, Republicans and Democrats were able to do it. Throwing that away and simply hoping a new agency will side with your preferred party is reckless and an enormous threat to the First Amendment.
In a nutshell, H.R. 1 does away with the FEC’s existing bipartisan structure to allow for partisan control of the regulation of campaigns and enables partisan control of enforcement. It also proposes changes to the law to bias enforcement actions against speakers and in favor of complainants.
Congress
Roll Call: Sheldon Whitehouse takes aim at funding disclosure for court briefs
By Todd Ruger
Sen. Sheldon Whitehouse told the Supreme Court that he intends to introduce legislation this year meant to shed light on the funding behind groups that frequently file briefs aimed at influencing the outcome of high-profile cases.
The Rhode Island Democrat often decries how high-dollar, dark money donations can be funneled through advocacy groups to anonymously press political agendas through the Supreme Court and lower appeals courts – what he dubs “judicial lobbying efforts.”
This month, Whitehouse sent draft legislation to Chief Justice John G. Roberts Jr…
The revelation Tuesday of the bill and a private Jan. 4 letter to Roberts and Scott Harris, the Supreme Court clerk, gives a rare glimpse into interactions between Congress and the high court on the legislative process. Whitehouse has not publicly spoken about his draft bill, a spokesman said…
The bill, as written, would require the disclosure of contributions to any person or their affiliates that files three or more amicus briefs in a year at the Supreme Court and federal appeals courts.
Whitehouse wrote that he intends to introduce the “Assessing Monetary Influence in the Courts of the United States Act of 2019,” and asked for the chief justice’s feedback…
Whitehouse filed the letter to Roberts in a federal appeals court in California as part of his own amicus brief in an environmental lawsuit, in which he contests how the Chamber described its approach to global climate change policies.
Washington Examiner: The HR 1 ‘Incumbent Protection Act’ destroys free elections
By Adam Brandon
Rep. John Sarbanes, D-Md., represents arguably the most gerrymandered congressional district in the country, and he wants to keep it that way. His latest piece of legislation, H.R. 1 “For the People Act,” would force taxpayers to fund congressional campaigns.
Congress has a knack for naming legislation after its opposite intended effect. If you’ve spent more than a weekend in Washington, you know that a bill named “For the People” is likely a far cry from actually benefiting the public. The “Incumbent Protection Act” would be a more fitting name for this piece of legislation.
Forcing citizens to fund political campaigns would be an appalling violation of the First Amendment. The right to vote and the right to campaign for other people’s votes are both considered protected acts of free speech. Allowing the federal government to control the purse strings of political communication would rig the system to protect those in power.
H.R. 1 would force 501(c)(4) charity organizations to publicly release their donor lists. Americans have a reasonable right to privacy, and a violation of this magnitude would have a chilling effect on political speech. The conservative groups targeted and persecuted by Lois Lerner and the IRS would be the tip of the iceberg compared to what would come next…
Under the guise of a more open electoral process, H.R. 1 rigs the game in favor of elected officials already in office and strives to censor the political speech of individuals and associations. Those who cherish the First Amendment should oppose this bill at every turn.
KTVZ Oregon: Wyden reintroduces bill targeting ‘dark money’ in politics
Sens. Ron Wyden and Jon Tester on Thursday reintroduced the Spotlight Act, a bill they said would shine a light on dark money political donors and hold the Trump Administration accountable to enforce our nation’s campaign finance laws.
“The Trump Administration’s pro-dark money rule allows foreign powers and special interests to spread their influence even deeper into our democracy, so it’s got to go before the next election,” said Wyden, Ranking Member of the Senate Finance Committee.
“In the closing days of the last Congress, the Senate passed a resolution on a bipartisan basis to overturn this corrupt dark money rule, but it came to a screeching halt in the Republican-controlled House,” Wyden said. “This time around, I hope more Senate Republicans will support this pro-sunshine legislation tossing out the dark money rule and dare Donald Trump to side with powerful insiders and foreign meddlers over American voters.”
Wyden and Tester first introduced the Spotlight Act last July after the Treasury Department announced it would no longer require non-profit organizations engaged in political activity to disclose basic information about their donors.
Under current law, 501(c)(3) organizations must provide donor information to the IRS, but the Treasury Secretary has discretion over whether to require this information from other types of tax-exempt organizations.
The Spotlight Act would eliminate this discretion and legally require 501(c)(4), 501(c)(5), and 501(c)(6) organizations to provide the IRS with the names and basic information of donors who contribute more than $5,000.
Free Speech
Washington Post: Fine against right-wing media outlet illustrates Canada’s illiberal campaign laws
By J.J. McCullough
Over the last decade, the Alberta legislature has repeatedly, and often unanimously, amended the province’s Election Finances and Contributions Disclosure Act in order to make it more and more difficult for politically-minded Albertans to share their opinions free of government supervision…
Laws of this sort have no place in a free society. If private entities choose to spend their money on political activism, it is hardly the government’s business. The notion of a government registry of citizens engaged in political activity is deeply illiberal, if not creepy.
Most Canadians would probably agree with such sentiments in the abstract, but the widespread proliferation of Alberta-style laws regulating and restraining political speech across Canada are a testament to how easy it is for politicians to exploit shallow fear and cynicism in the service of discouraging the exercise of fundamental liberties.
Whether they are from the left, right or center, basically all partisans believe their opponents win elections only because they have some unfair advantage in the propaganda department. It is thus never terribly difficult to muster all-party support for some fresh round of strengthening campaign finance laws, which increasingly seek to make logistically burdensome ambitious political speech and activity in periods far beyond election time…
It is impossible for the government to enforce limits on the cost of political speech without identifying it, and identification begets registration, which begets monitoring. It is similarly impossible for the government to set a coherent time frame for when political advertising officially becomes a “danger” to voters, which begets an endlessly expanding periods of monitoring, which begets fines for unregistered billboards in the middle of nowhere half a year before an election.
Independent Groups
Center for Responsive Politics: Liberal ‘dark money’ group gets an early start targeting GOP Senators ahead of 2020
By Anna Massoglia and Karl Evers-Hillstrom
A series of ads purchased by Majority Forward – a non-disclosing 501(c)(4) nonprofit linked to Democratic leadership in the Senate – gives an early peek at which Senate seats are in the sights of Democrats eager to take over the upper chamber…
Majority Forward has spent at least $234,387 in television ads against the vulnerable Republicans in January, documented in FCC records compiled using the Center for Responsive Politics’ political ad database.
Claiming the honor of top dark money spender during the 2018 cycle, Majority Forward shelled out roughly $46 million in outside spending reported to the FEC. However, the group’s newest wave of ad spending is not required to be disclosed with the FEC as they are so-called “issue ads” – which technically do not explicitly support or oppose a candidate – and are not being run within 30 days of a primary election or 60 days of a general election…
Majority Forward is closely linked with Senate Majority PAC (SMP) and former Senate Democratic leader Harry Reid…
Although recent FEC guidance requires outside spending groups to disclose spending more than $250 on independent expenditures to disclose donors giving over $200 for “political purposes” in the past year, it is unlikely Majority Forward’s donors will be revealed anytime soon since its FEC disclosures include a notation claiming it “does not accept contributions earmarked for a specific political purpose” – effectively giving the group a green light to funnel millions more into 2020 elections without ever disclosing the financiers behind it.
The States
New Jersey Globe: ‘Dark money’ bill to include a ban on participating by elected officials
By David Wildstein
Legislation that would require “dark money” independent groups to disclose their major donors will be amended on the Senate floor today to include a ban that would prohibit elected officials from being involved – directly or indirectly – in any independent expenditure committee.
The amendment appears to directly target Brendan Gill, an Essex County freeholder who runs a non-profit group allied with Gov. Phil Murphy.
The bill sponsored by State Sen. Troy Singleton (D-Palmyra) would require independent organizations that spend more than $3,000 on a political campaign or advocating a position on a bill or regulation to disclose all donors who contribute more than $10,000. The bill would also require disclosure of how the money was spent.
The Senate will vote on the amendment. The original bill had been scheduled for a vote at today’s session.
Opposition to Singleton’s proposal has united some strange bedfellows: the American Civil Liberties Union has teamed up with Prosperity New Jersey on this one.
U.S. News & World Report: ‘Dark Money’ a Thorny Issue for Colorado’s Incoming Secretary of State
By Peter Olsen-Phillips
The complaint involving two of the state’s most prominent progressive groups and a powerful tech billionaire is emerging as one of the first major challenges for Democratic Secretary of State Jenna Griswold, who ran a campaign partly on getting so-called “dark money” out of the political process. Conservatives have long accused tech companies, Google among them, of harboring a bias toward conservatives. Heatherly has asked that Griswold “recuse herself and retain an independent investigator to look into the matter.”
The issue highlights the tension that some liberal politicians across the nation face in trying to rein in unaccountable political spending as it becomes more ubiquitous in campaigns. In their first bill since retaking a majority, House Democrats in Washington targeted dark money with provisions that would force certain politically active “social welfare groups” to disclose major donors. The legislation is likely dead on arrival in the Republican-controlled Senate.
The effort comes on the heels of an election cycle where Democrats were the largest beneficiaries of dark money spending, according a recent analysis of campaign finance data from the Center for Responsive Politics by Issue One. The analysis found that 54 percent of the approximately $150 million spent by these groups favored Democrats, a sharp reversal of recent cycles.
“Members of Congress are the ones being mugged in the dark alleys. Regardless of their party affiliation, they should have a strong personal incentive to get rid of dark money,” Issue One CEO Nick Penniman said in the report.
