In the News
Beacon Hill Patch: Massachusets Ballot Questions November 2018: What To Know
By Jenna Fisher
QUESTION 2. Election spending
This proposal would create a commission to consider amendments to the U.S. Constitution “to establish that corporations do not have the same Constitutional rights as human beings and that campaign contributions and expenditures may be regulated,” according to a summary from Galvin’s office…
The argument against: It could send a dangerous message to the rest of the country, argues Bradley Smith founder of the Institute for Free Speech. Smith said it would be the same as saying a labor union has no right to speak on behalf of its members, or a corporation has no right ask for a warrant before police search its premises. “We protect corporate rights because that protects the rights of the individuals,” he told WBUR News.
The Courts
Courthouse News Service: Republican Super PAC Loses Fight Over Illinois Law
By Lorraine Bailey
In 2009, the Illinois General Assembly made an exception to campaign contribution limits allowing candidates to accept unlimited donations if they either hit a self-funding threshold or an independent expenditure committee spent a certain amount on the race – $250,000 in a statewide office race and $100,000 in any other race.
However, this exception does not apply to independent expenditure committees, which still may not donate or coordinate with a candidate under any circumstances.
Earlier this year, Liberty Principles PAC chairman Dan Proft filed suit against Illinois Attorney General Lisa Madigan and various Illinois Board of Election members seeking a declaration that the state election code unconstitutionally places restrictions on campaign contributions made by independent committees “even in a race in which the limits have been eliminated for everyone else.” …
But U.S. District Judge Virginia Kendall denied his request for an injunction and dismissed the case on Wednesday.
“Proft would have this court abolish the Supreme Court’s carefully crafted contribution-or-expenditure litmus test so he can ‘raise unlimited funds,’ ‘spend unlimited amounts,’ ‘make unlimited contributions to the candidates he supports,’ and ‘communicate and coordinate freely with those candidates,’” Kendall said. “It appears, then, that what Proft would really like is to have his cake and eat it too.”…
“Illinois’ suppression of independent expenditure committee’s contributions to candidates is a closely drawn means of preventing corruption or its appearance,” the 20-page opinion states. “Consequently, it is constitutional under the First Amendment.”
Wall Street Journal: Trump Has Named a Lot of Judges, But Courts’ Ideological Balance Is Slow to Shift
By Brent Kendall
President Trump has enjoyed a banner two years of judicial nominations, illustrating how Republicans are making a quick imprint on the federal courts. But his tenure also shows that many of the nation’s courts don’t lend themselves easily to far-reaching transformation.
So far, most Trump nominees have made already conservative appeals courts more so, rather than tipping the ideological balance in courthouses where conservative jurists have been outnumbered.
More than half of Mr. Trump’s appeals picks have gone to four of the 12 regional appeals courts, and those already had mostly Republican appointees. Of the remaining courts, six have a majority of Democratic appointees and two are even or nearly so.
“Trump has appointed in fairly quick order a large number of judges, but they’re largely replacing Republican appointees,” said Russell Wheeler, a Brookings Institution fellow who tracks judicial nominations…
While judges’ individual rulings cannot always be predicted by the president who appointed them, a preponderance of conservative or liberal appointees on a court can determine the direction of its jurisprudence.
The president has installed 29 judges on appeals courts, which have the final word in most federal litigation, since the Supreme Court reviews only a fraction of their decisions.
Free Speech
Electronic Frontier Foundation: Corporate Speech Police Are Not the Answer to Online Hate
By Corynne McSherry
A coalition of civil rights and public interest groups issued recommendations today on policies they believe Internet intermediaries should adopt to try to address hate online. While there’s much of value in these recommendations, EFF does not and cannot support the full document…
Our key concern with the model policy is this: It seeks to deputize a nearly unlimited range of intermediaries-from social media platforms to payment processors to domain name registrars to chat services-to police a huge range of speech. According to these recommendations, if a company helps in any way to make online speech happen, it should monitor that speech and shut it down if it crosses a line.
This is a profoundly dangerous idea, for several reasons.
First, enlisting such a broad array of services to start actively monitoring and intervening in any speech for which they provide infrastructure represents a dramatic departure from the expectations of most users. For example, users will have to worry about satisfying not only their host’s terms and conditions but also those of every service in the chain from speaker to audience-even though the actual speaker may not even be aware of all of those services or where they draw the line between hateful and non-hateful speech. Given the potential consequences of violations, many users will simply avoid sharing controversial opinions altogether…
Finally, and most broadly, this document calls on companies to abandon any commitment they might have to the free and open Internet, and instead embrace a thoroughly locked-down, highly monitored web, from which a speaker can be effectively ejected at any time, without any path to address concerns prior to takedown.
ACLU: What Companies Can Do to Protect Privacy and Free Speech: The ACLU Guide
By Jacob Snow
Users, policymakers, and investors are demanding to know how companies are protecting privacy and free speech, and companies that fail to do so are being held accountable, by the government, by their users, and by their employees…
The ACLU of California has a guide to help: Privacy and Free Speech: It’s Good for Business, which offers advice for companies wrestling with today’s most pressing challenges.
The industry can do better. It must do better. Right now, governments are seeking massive volumes of information from tech companies. Democracy is under threat by people exploiting poor privacy practices to suppress speech and weaponize personal information. The Trump administration is trying to exploit online services to monitor immigrants, activists, and entire neighborhoods…
We illustrate how companies can support diverse voices, encourage free expression, and only remove content when it is illegal or specifically harmful. By following this advice, PayPal could have avoided a barrage of public criticism for threatening to kick book publishers off its platform unless they removed “offending literature” from their catalogs.
And we provide concrete examples of how companies can effectively partner with users by putting them in control of their data and standing up for their civil and human rights. Twitter, for example, was hailed for protecting its users when it sued U.S. Customs and Border Protection over a request to unconstitutionally identify and share the personal information of an online critic.
Fundraising
FiveThirtyEight: How ActBlue Is Trying To Turn Small Donations Into A Blue Wave
By Carrie Levine and Chris Zubak-Skees
Of course, candidates with the biggest fundraising haul don’t always win, though cash can still make or break campaigns and strong grassroots fundraising can indicate voter enthusiasm. Democrats are hoping the cash haul and donor growth reflect real momentum heading into next month’s midterm elections. The money could also allow Democratic candidates to outspend their Republican rivals, even those with support from cash-flush GOP super PACs, and force Republicans to actively defend more seats than they would have otherwise.
The surge in individual donations also sets the scene for the 2020 presidential campaign. “The pool of small-dollar donors keeps growing,” said Hill. How big that pool will get is still an open question…
If ActBlue disappeared tomorrow, it would be “an absolute disaster for Democratic party fundraising,” said Tim Tagaris, a digital fundraising consultant who worked on Sen. Bernie Sanders’s presidential campaign and who said he’s been using ActBlue since 2004.
But ActBlue isn’t going away – it’s just getting bigger…
The fact that any Democrat can use ActBlue’s infrastructure also makes it easier for outsider candidates to generate money without support from party gatekeepers, said Michael Malbin, a political science professor and executive director of the nonpartisan Campaign Finance Institute. “As long as you’re a Democrat, they’re not running ideological litmus tests,” he said of ActBlue.
The lure of online fundraising forces candidates to pay close attention to the policy priorities of the base, said Tim Lim, a consultant who has worked on digital advertising for Democratic presidential and congressional campaigns.
The downside: Some candidates catch fire, some don’t, and there is no real way to ensure that resources go to the most competitive races.
“It’s a mixed bag. We’ll see how we do this cycle,” Lim said.
Independent Groups
Bloomberg Government: Shadow Parties’ Dominate Campaign Spending in Midterms
By Ken Doyle
“Shadow parties,” outside groups allied with Democratic and Republican leaders, are eclipsing traditional political parties, according to two new studies of campaign spending in the 2018 midterm elections.
The reason is simple: groups not formally tied to candidates can raise more money under current campaign finance rules…
Super political action committees and other groups aligned with top Democratic and Republican leaders in the House and Senate have become the predominant campaign money source in the current midterms, outraising the traditional party committees they’re assisting in three of four instances, the Brennan Center found…
Independent expenditures are divided almost exactly evenly between Democrats and Republicans, the CFI study found. Republican candidates have benefited from 51 percent of this spending, while 49 percent has favored Democrats.
Democratic and Republican leadership-allied entities have almost doubled the spending total of the traditional party committees, which must abide by contribution limits. A study by the nonprofit Campaign Finance Institute noted that, in the last midterms in 2014, those outside groups spent only about half as much as the traditional parties.
The States
Wall Street Journal: Judge Questions Trump Foundation Over Campaign Ties
By Corinne Ramey
A Manhattan judge Thursday indicated she was sympathetic to claims President Trump used his family charity to benefit his campaign, but said she wouldn’t decide whether a lawsuit on the matter would proceed until a higher court ruled if a sitting president could be sued in state court…
During Thursday’s hearing, many of the arguments focused on a 2016 fundraiser that Mr. Trump held in Iowa. In a filing submitted to the attorney general’s charities bureau, the Foundation said it held the fundraiser to raise funds for veterans charities. The attorney general’s office claimed the fundraiser was planned, organized and directed by Mr. Trump’s campaign, and that more than $2.8 million donated to the foundation amounted to an improper in-kind contribution to the campaign.
Mr. Trump’s lawyers have argued that because all the money raised during the foundation went to charities, there was no tangible benefit to the campaign. “Every dime, every penny went there, to these charities,” said foundation lawyer Alan Futerfas, pointing to icons representing organizations on a large screen in the courtroom.
“During that fundraiser, did [Mr. Trump] speak about his campaign?” asked Justice Scarpulla, in front of the packed courtroom, where some members of the audience perched in the windowsills.
“Yes,” Mr. Futerfas replied.
“So it wasn’t a fundraiser,” said the judge. “It was a fundraiser and a political event.”
AL.com: Lawyers want probe of Marshall contributions; Marshall calls that ‘stunt’
By Mike Cason
The issue is $735,000 in contributions the Marshall campaign has received from the Republican Attorneys General Action Fund. McPhillips and Isaak said it was illegal for Marshall to accept the money because the RAGA received money from other political action committees.
It’s illegal in Alabama for political action committees, PACs, to accept or give money to other PACs, a practice known as PAC-to-PAC transfers that obscures the identity of the original donor.
McPhillips and Isaak asserted, as Joe Siegelman and Troy King had before, that it’s also illegal for candidates to accept money from PACs that engaged in PAC-to-PAC transfers…
King filed a lawsuit against Marshall and a complaint with the Alabama Ethics Commission in July. A Montgomery County Circuit judge dismissed the lawsuit. The Ethics Commission has not taken any public action on the complaint and does not comment on the status of pending cases…
The dismissal came after lawyers for Marshall argued in a brief that RAGA was a federal PAC in full compliance with federal law and not regulated by Alabama’s Fair Campaign Practices Act. Marshall’s lawyers also argued that the Alabama’s ban on PAC-to-PAC transfers does not prohibit candidates from receiving money from PACs that have violated the ban. They said the Legislature could have included that in the law but did not.
McPhillips and Isaak pointed to another section of the Alabama law that says it’s illegal for a candidate to receive a contribution that the candidate “knows or reasonably should know was made in violation of this chapter.” They said Marshall was obligated to return the RAGA contributions within 10 days to avoid violating the law.
