In the News
Washington Examiner: We need to clean house at the Federal Election Commission
By Zachary Morgan
The Federal Election Commission may be the worst way to regulate political contributions and spending: except for all the alternatives, that is.
Certainly, there’s little reason to love the FEC. It’s the only federal agency for which its entire mission involves the regulation of core First Amendment activity, and our federal campaign finance laws, rules, and regulations are opaque and confusing…
But if we’re going to regulate political speech, the commission’s bipartisan structure and due process protections are essential to avoid turning campaign finance laws into mere tools of partisan politics. The law provides for six FEC commissioners, each of whom is supposed to serve a single six-year term. By law, no political party can hold more than three of the seats, and four votes are required for the commission to take any serious action. This bipartisan structure prevents the commission from being weaponized by partisan interests.
But the commission currently lacks enough members to act, and its remaining commissioners are all long past their terms and mired in professional animosity. It’s time for a clean slate…
Thus, the president should consult with the Senate leadership of both parties and nominate six new commissioners, three Democrats and three Republicans – a clean sweep. There is no need for this to be a partisan exercise: Both Majority Leader Mitch McConnell and Minority Leader Chuck Schumer surely know good campaign finance experts with unimpeachable credentials.
The country deserves a functioning campaign finance agency, especially as we head into the 2020 campaign season.
Washington Post: Stymied by a polarized agency, FEC Chairwoman Ellen Weintraub finds her voice as a Trump critic
By Reis Thebault
A key part of her job, Weintraub said, is to communicate with the public. But some of the harshest criticism toward her has come from her colleague, Republican commissioner Caroline C. Hunter…
“She has a First Amendment right to speak, but once she uses FEC letterhead and her title as chair to troll the president of the United States and to grandstand, it’s really outrageous,” said Hunter…
In June, after Trump told ABC News that he would accept information on a political opponent from a foreign government, Weintraub tweeted out a statement, reiterating that “Electoral intervention from foreign governments has been considered unacceptable since the beginnings of our nation.”
“I would not have thought that I needed to say this,” she added.
Then two weeks ago, Trump both defended his request that Ukraine investigate his potential 2020 campaign rival Joe Biden and his son Hunter and called on China to investigate the family, too.
Weintraub retweeted her June statement, writing “Is this thing on?” next to a microphone emoji.
Those tweets prompted more criticism from the right, including Brad Smith, chairman of the Institute for Free Speech and a former outspoken Republican FEC chair who worked with Weintraub on the commission in the early 2000s.
“It’s not her job to be tweeting that out,” said Smith, who has publicly called for Weintraub’s resignation.
Her timing suggests she’s accusing Trump of breaking the law, he said.
“That’s a dangerous thing for her to be doing in her position,” Smith said. “She’s supposed to be a relatively impartial quasi-judicial officer.”
Congress
The Hill: GOP lawmakers offer new election security measure
By Maggie Miller
A group of House Republicans introduced legislation Friday to reduce foreign interference in U.S. elections, including by making online political ads more transparent.
Rep. Rodney Davis (R-Ill.), the top Republican on the House Administration Committee and the primary sponsor of the bill, told The Hill in a statement that he was putting forward the legislation due to the “unacceptable” nature of Russian misinformation efforts in the lead-up to the 2016 elections…
The Honest Elections Act would expand the prohibition on foreign nationals contributing to campaigns to include state and local initiatives and referendums.
It would also codify existing Federal Election Commission guidance to require that all online political advertisements include a disclosure of who paid for them, such as with a “click-through” option, where the individual could click to a second page for information on who purchased the ad…
The bill’s introduction comes on the heels of a heated debate between Davis and Democratic members of the House Administration Committee over the SHIELD Act earlier this week…
Davis pushed back against the SHIELD Act during the committee markup, describing it as “unfixable in its current form.” Davis proposed numerous amendments, most of which were voted down by the Democratic majority, including one that would have taken out the language on new online political advertisement rules.
One of Davis’s primary concerns with the SHIELD Act was that it might violate free speech, particularly through the regulation of online political advertisements.
The House is expected to vote on the SHIELD Act next week, which will mark the third major election security bill to be pushed through the chamber this year.
ACLU: ACLU Letter Expressing Significant First Amendment Concerns Re: The SHIELD Act (H.R. 4617)
In this letter to Congress, the ACLU urged members of the House Administration Committee to address our significant First Amendment concerns with the SHIELD Act during the bill’s markup. While we applaud Congress’ attempts to limit the interference of foreign adversaries in our elections, the SHIELD Act strikes the wrong balance – sweeping too broadly and encompassing more speech than necessary to achieve its legitimate goals.
The ACLU urged the House Administration Committee to amend the SHIELD Act to address our concerns and protect the rights of everyone in this country to communicate in their chosen manner about important political issues.
Roll Call: Congress has long sought to bar foreign campaign contributions
By Todd Ruger
Democrats say they don’t plan to add language to clarify what counts as a “thing of value” under the ban, even as the House Administration Committee on Wednesday advanced a broad bill that seeks to close loopholes in the law that the 2016 election exposed…
[Chairwoman Zoe] Lofgren told CQ Roll Call on Wednesday that she wouldn’t add a provision to clarify a “thing of value” because opposition research, even just a tip from a foreign national, already counts.
“I don’t think there is a need to,” Lofgren said. “I don’t think in statutory language you’re going to list everything that could be a thing of value. Clearly that is a thing of value; people pay for it.”
Rep. Jamie Raskin, D-Md. … said Wednesday he would “resist the implication that this is something that we need to explicitly identify now because it wasn’t clear. I think it was always clear.”…
House Intelligence Chairman Adam B. Schiff … introduced a bill in June to address the issue directly. The bill would simply change “thing of value” in the law to “thing of value (including information sought or obtained for political advantage).”…
In 2017, legal experts lined up on both sides of whether trying to get that information from foreign governments was prosecutable even if counted as a “thing of value” for a campaign.
Such a crime could result in candidates being barred from asking questions of foreigners, just because the answers might be especially important to voters, Eugene Volokh, a professor at UCLA School of Law, wrote in the Washington Post at the time.
“And it seems to me that restrictions on providing information to the campaigns – or on campaigns seeking such information – can’t be constitutional,” Volokh wrote. “Can it really be that the Clinton campaign could be legally required to just ignore credible allegations of misconduct by Trump, just because those allegations were levied by foreigners?”
FEC
WGLT: FEC Chair: Davis Trying To ‘Intimidate’ Her Over Trump Criticism
By Ryan Denham
The chair of the Federal Election Commission said Tuesday that U.S. Rep. Rodney Davis was trying to “intimidate” her by asking for an ethics investigation into her public criticism of President Trump.
Last week Davis asked the FEC’s inspector general to investigate FEC chair Ellen Weintraub…
“He wants somebody to tell me to stop talking,” Weintraub told WGLT. “That is inappropriate for a member of Congress to be telling the head of an independent agency-particularly the one that regulates Congress-that she should just sit down and shut up.”…
Davis is the top Republican on the House Administration Committee, which has oversight over the FEC.
“I believe that this pattern of behavior is unbecoming of the FEC chair and may have possibly violated ethics regulations that we all as federal employees must abide by,” Davis said in his Oct. 10 letter to FEC inspector general Christopher L. Skinner.
Weintraub, a Democrat, said her conduct was already investigated after a very similar complaint was made in 2017. She said that investigation cleared her of wrongdoing.
“It seems to me the sole purpose for trying to resuscitate a complaint that’s already been resolved is to try and intimidate me from speaking out,” said Weintraub, who joined the FEC in 2002. “And I’m not that easy to intimidate.”
Davis said the 2017 inspector general report “lacked a clear legal basis.” He also noted that a permanent inspector general was not in place at that time.
“Impartial, nonpartisan leadership by the chair of the FEC is essential for the Commission to fairly enforce our nation’s campaign finance laws,” Davis said.
ProPublica: The Pro-Trump Super PAC at the Center of the Ukraine Scandal Has Faced Multiple Campaign Finance Complaints
By Mike Spies, Derek Willis and J. David McSwane
If you’ve been hearing about America First recently, it’s likely because two associates of presidential lawyer Rudy Giuliani were arrested on allegations that they illegally funneled money to the group.
But that case is not the only problem that has ensnared the PAC as its role in backing Republican candidates has grown.
In another instance, the American subsidiary of a Canadian company made three donations totaling $1.75 million to America First in 2018. In another complaint, the Campaign Legal Center questioned the source of the donation and alleged that Wheatland Tube LLC may have violated laws against foreign nationals contributing to federal campaigns. The company declined to comment on the matter.
Last year, Common Cause, the political reform group, asked the FEC to determine whether the Trump campaign had illegally coordinated with America First and America First Policies, a related group that can raise money without disclosing its donors. The complaint alleged that the president and his campaign were improperly soliciting contributions for the two entities.
The FEC has not acted on any of these complaints to date, and it currently lacks a quorum to vote on enforcement actions proposed by its staff…
America First communications director Kelly Sadler told ProPublica that the group takes its obligations seriously and goes to great lengths to comply with the law.
The PAC has denied any wrongdoing in the criminal case against the Giuliani associates. Sadler said the contribution at the heart of the indictment has been placed in a segregated account and will remain there “until these matters are resolved and a court determines the proper disposition of the funds.”
Candidates and Campaigns
PolitiFact: In phony Facebook ad, Warren said most TV networks will refuse ads with a ‘lie’ but that’s wrong
By Amy Sherman
Every election season, some candidates argue that they have been unfairly attacked and that broadcasters should take down ads, wrote David Oxenford, a lawyer who has represented broadcasters for decades and is a partner at Wilkinson Barker Knauer LLP.
However, “broadcasters can’t censor a candidate ad, so they can’t reject it (or remove it from the air) no matter what its content is,” Oxenford wrote…
Warren said, “If Trump tries to lie in a TV ad, most networks will refuse to air it. But Facebook just cashes Trump’s checks.”
This is a misreading of both federal and actual practice. Federal law requires broadcast networks to run political candidate ads without vetting them for lies or falsehoods. The same law does not apply to cable networks, but those networks also generally aim to run such ads, experts told us.
Warren does have a point that federal law does not apply to online social networks such as Facebook, so Facebook can take candidate ads regardless of whether they include falsehoods.
But overall, it’s inaccurate to say that “most networks” will refuse to air an ad by Trump with a lie in it. We could find no evidence that most networks reject false candidate ads.
We rate this statement Mostly False.
The Media
The Hill: Trump campaign threatens to sue CNN, citing Project Veritas videos
By Brett Samuels
An attorney representing President Trump’s reelection campaign sent a letter to CNN on Friday threatening to sue the network over purported allegations of bias against the president.
Trump attorney Charles Harder wrote to CNN President Jeff Zucker warning that the Trump campaign intends to seek damages from the network based on secretly recorded videos posted in recent days by the right-wing group Project Veritas.
“Never in the history of this country has a President been the subject of such a sustained barrage of unfair, unfounded, unethical and unlawful attacks by so-called ‘mainstream’ news, as the current situation,” Harder wrote.
Harder cited one CNN employee recorded by Project Veritas who alleged Zucker has a personal feud with Trump. Another employee captured on video complains that CNN does not live up to its “facts first” slogan, while a third lamented that the network wants to focus its coverage mainly on Trump and the ongoing House impeachment inquiry.
“The aforementioned examples are merely the tip of the iceberg of the evidence my clients have accumulated over recent years,” Harder wrote. “We also expect substantial additional information about CNN’s wrongful practices to become known in the coming days and weeks.”
Harder alleged that CNN’s actions constituted a violation of the Lanham Act, a law enacted in the 1940s that governs trademark use and false advertising.
CNN dismissed the lawsuit in a statement on Friday.
“This is nothing more than a desperate PR stunt and doesn’t merit a response,” Matt Dornic, a spokesman for CNN, said in a statement…
A case against CNN would likely face significant hurdles on First Amendment grounds.
The States
WAMC: NY GOP Chair Slams Scheduled Release Of Public Campaign Finance Plan
By Karen Dewitt
New York state’s Republican Party chair is angered over the news that a commission to create a public campaign finance system for the state plans to issue its report on Thanksgiving Eve – traditionally a time when politicians release items that they want to downplay.
The commission, which last held a meeting on a state holiday, is scheduled to release its final report the day before Thanksgiving on how to structure a public campaign finance system for statewide-elected offices…
State Republican Party Chair Nick Langworthy says it’s a deliberate attempt to hide the results of the report by releasing it when the vast majority of New Yorkers will be preparing for a major holiday.
“They are hoping to sneak this through in a news cycle while people are busy preparing for their holidays,” said Langworthy…
Under the rules of the commission, decided in the budget in late March, the Legislature has until December 22 to act to override the commissions’ recommendations, or they automatically become law.
The head of the state’s Democratic Party, Jay Jacobs, was appointed by Governor Andrew Cuomo to be on the commission, and has acted as its defacto chair. The Albany Times Union recently reported that Cuomo and the Legislature changed rules that prohibited party chairs from serving on policy-making commissions…
The Republicans are not alone in their concern about the Thanksgiving Eve release of the commission report. Government reform groups expressed dismay as well. Alex Camarda, with Reinvent Albany, says the planned release date “does not allow for adequate review.” Reinvent Albany and other reform groups have been pressing the commission to release a draft report for the public to see in early November.
