New from the Institute for Free Speech
When You Have to Dine and Dash
By Eric Peterson
Senator Ted Cruz was the latest victim of this trend when he and his wife were forced to leave a D.C. restaurant after protesters showed up and chanted their opposition to Supreme Court nominee Brett Kavanaugh at the couple…
Harassment of senators on the Judiciary Committee hasn’t stopped at rowdy restaurant patrons either. During last Thursday’s hearing with Judge Kavanaugh and Dr. Christine Blasey Ford, three members of the Committee had their home address and phone numbers posted to their Wikipedia pages…
Many were quick to condemn these attempts to harass and intimidate senators in public and at their homes. Yet, everyday citizens who lack the protections that come with being a U.S. Senator routinely lose their privacy for their own political beliefs and associations, and rarely receive the same sympathy.
Under current federal law, any American who gives anything more than just $200 to a candidate, political party, or political committee must have their name, home address, employer, and occupation published in a government database hosted by the Federal Election Commission. Americans who help fund ads that name candidates in the course of discussing issues – such as Kavanaugh’s confirmation – during specific time periods must also be publicly disclosed. And every day, politicians and activist groups are working to radically expand these laws to force even more types of groups to expose the identities of their supporters. This information would then be accessible to anyone at any time, courtesy of the United States government.
If giving out the personal information of a U.S. Senator is beyond the pale, why isn’t the same standard applied to everyday Americans?
Free Speech
Washington Post: The bipartisan war against speech
By Max Boot
A Cato Institute-YouGov survey last year found that 52 percent of Democrats favor a ban on hate speech, while 72 percent of Republicans oppose it. So does that mean that Republicans are pro-speech? Hardly. A more accurate interpretation would be to say that most members of the overwhelmingly white Republican Party aren’t bothered by defamation of minorities, i.e., people unlike them.
Yet Republicans are happy to crack down on speech that offends their own sensibilities. In that same survey, 63 percent of Republicans agreed with Trump that journalists are the “enemy of the American people.” An Ipsos poll in August found that 44 percent of Republicans think that the president should be able to shut down news outlets for “bad behavior” – which, according to Trump, amounts to accurately reporting what he says and does.
As these figures would indicate, a disturbing number of Republicans applaud Trump’s assault on the First Amendment – the likes of which we haven’t seen since the Red Scares of the 1920s and 1950s. The Cato-YouGov survey found that 65 percent of Republicans favor firing NFL players for refusing to stand for the national anthem, a faux issue that Trump has used to rally his white nationalist base against highly paid African American athletes. How can conservatives with straight faces oppose policing “micro-aggressions” against minorities but support policing micro-aggressions by minorities?
Their hypocrisy reveals that many conservatives are no friends of the First Amendment. But then neither are those progressives who would fire an editor or shut down a campus speaker for voicing sentiments they find objectionable. The war on speech is a more bipartisan phenomenon than either side would care to admit. All too many ideologues of left and right are divided not on the principle of suppressing speech but on the details of which speech should be suppressed.
Supreme Court
Wall Street Journal: McConnell Presses Kavanaugh Vote as FBI Probe Nears an End
By Kristina Peterson, Natalie Andrews and Siobhan Hughes
Senate Majority Leader Mitch McConnell pressed Tuesday to hold a vote as soon as possible on Judge Brett Kavanaugh, with the FBI expected to wrap up its probe into allegations of sexual assault and misconduct by the Supreme Court nominee as soon as Wednesday.
Mr. McConnell was vague on the timing of his next steps. While he made clear the FBI’s findings wouldn’t derail plans for a vote, he retained flexibility to address the concerns of three undecided GOP senators-Jeff Flake of Arizona, Susan Collins of Maine and Lisa Murkowski of Alaska.
Given the GOP’s thin Senate majority, Mr. McConnell would need support of two of those three lawmakers if all Democrats vote against the judge.
“What I can tell you with certainty-we’ll have an FBI report this week, and we’ll have a vote this week,” Mr. McConnell, a Kentucky Republican, told reporters.
The Courts
Bloomberg Government: Lawsuit to Reveal Conservative Group Donors Can Proceed
By Ken Doyle
A campaign finance watchdog group can proceed with a lawsuit seeking disclosure of donors to the conservative nonprofit American Action Network, which has spent almost $65 million aiding Republican candidates.
A federal judge in Washington gave the go-ahead Monday to the case filed by Citizens for Responsibility and Ethics in Washington. It is among the first “citizen suits” allowed to enforce federal campaign finance laws, according to the group.
The group filed suit against the conservative organization earlier this year after the Federal Election Commission failed to take enforcement action to force the disclosure. The FEC didn’t act because of a deadlocked vote of Democratic and Republican commissioners.
Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia set a schedule for the case calling for briefing to be completed by the end to the year. Cooper’s order followed a denial last month by the federal appeals court in Washington of American Action Network’s motion to delay the case…
Developments in the AAN case followed court rulings in a separate disclosure suit involving another conservative nonprofit, Crossroads GPS.
The Supreme Court last month let stand a federal district court order striking down an FEC rule cited by Crossroads and other nonprofits to keep their donors secret.
Courthouse News Service: Transit Authority’s Politics Ban Puts General Counsel in Hot Seat
By Alexandra Jones
[The Southeastern Pennsylvania Transportation Authority] adopted the ban on politics in 2015 after its prior policy against “public issue advertising” invited a successful lawsuit…
This year, SEPTA is back in court to fight of First Amendment claims from a nonprofit news organization that uncovered racial disparities in the mortgage market after a year-long study.
The Center for Investigative Reporting initially promoted its findings in a 10-panel comic strip, and it filed suit in May when SEPTA refused to let it run an infographic derived from that series on Philadelphia-area buses.
U.S. District Judge Michael Baylson held a trial on the challenge Monday after refusing just a week earlier to grant an injunction…
[Gino] Benedetti [the general counsel at SEPTA] explained that the team did additional research after the center submitted its proposed ad, and that the message the center was pushing conflicted with one paper put out by the American Bankers Association, a New York Times editorial, and numerous lawsuits and settlements about discriminatory lending practices.
Because the advertisement was found to express an opinion on matters of public debate about economic, political and social issues, Benedetti said the agency was justified in refusing it…
The Center for Investigative Reporting is represented in the challenge by Molly Tack-Hooper with the American Civil Liberties Union.
Accusing SEPTA of unconstitutional censorship, Tack-Hooper noted Monday that the agency has showed inconsistency by previously accepting ads for government services like the Safe Sleep campaign by the Philadelphia Department of Health, as well as the Anti-Human Trafficking campaign by the Department of Homeland Security.
Federalist Society: Pennsylvania Ruling Affirms that Campaign Finance Prohibitions Must be Justified
By Stephen R. Klein
Last year, Pasquale Deon and Maggie Magerko filed a federal suit against the members and certain employees of the Pennsylvania Gaming Control Board as well as state attorney general John Shapiro, all in their official capacities. Deon and Magerko challenged a provision of the Pennsylvania Gaming Act…
As principals of different gaming companies under the Act, the plaintiffs were entirely foreclosed from giving money to state candidates or political committees. On September 19, Judge Sylvia Rambo enjoined this provision as unconstitutional under the First Amendment…
It should be self-evident that the government may not simply say that an industry (particularly one that is legal and otherwise highly regulated) is corrupt and then enact a wholesale ban on campaign contributions from those associated with it…
The ruling discusses an Illinois case in which I was co-counsel, Ball v. Madigan. That case struck down a wholesale ban on campaign contributions from medical marijuana dispensaries and grow operations, which was nothing more than a throwaway line in the law that authorized the state’s cannabis pilot program. Like in the Ball case, rather than present evidence, in Deon the state largely sat on its laurels. If either the legislature or state attorneys general make some effort beyond citing cases that have upheld industry-focused bans, their arguments may pass muster. Moreover, the breadth of the Pennsylvania law was, even by campaign finance standards, unusually broad.
However low the bar may be, it is important to affirm that it exists. Allowing the government to prohibit campaign contributions-which are both fundamental expressions of support for candidates and fundamental tools for political participation-with nothing more than righteous indignation invites abuse and discrimination.
Independent Groups
Missoulian: Money from outside groups floods Montana’s Senate race
By Eve Byron
The money trail is a little murkier looking into the Senate Majority PAC, which has spent $1 million supporting Tester. The largest contributor is Working for Working Americans, which partially discloses the source of its funds as being from the carpenters’ union. But unions don’t have to report their donors to the Federal Election Commission as a means to protect union members, although they do report them to the federal Department of Labor. Mayersohn [a researcher at the Center for Responsive Politics] said his group considers this to be an organization that discloses its funding…
The Senate Reform Fund (SRF), a single-candidate super PAC set up only to support Rosendale, hasn’t reported any donors of more than $200 to the FEC, and its only expenditure is $1.1 million in advertising opposing Tester, so that could be considered a “dark money” super PAC.
“This is a tricky case,” Mayersohn noted. “There are more and more groups like the SRF, which incorporate just in time to spend money on a race without having to disclose their donors before Election Day.”
The three largest independent expenditures made on behalf of Tester include $1.7 million from End Citizens United, and $1 million each from the Senate Majority PAC and National Education Association Advocacy Fund.
Candidates and Campaigns
Washington Post: The Trailer: Democrats are breaking fundraising records. Republicans blame ‘outsiders.’
By David Weigel
Chip Roy, the Republican nominee in Texas’s 21st Congressional District, had bad news for the conservatives. Democrats had money, and they knew how to spend it.
“Every time you see one of those trendy little hipster black-and-white Beto [O’Rourke] signs around this district – that’s from the $10 million he raised in the second quarter, from 221,000 donors came from all over the country, trying to attack Texas values,” said Roy at a meet-and-greet for Republican candidates in a San Antonio gated community. “That’s what those signs represent.”
The third fundraising quarter concluded a few hours later, and so far, the numbers have emphasized just what Roy was warning about – a donor surge to Democrats, with candidates in competitive seats raising anywhere from the high six figures to millions of dollars. Joe Kopser, Roy’s opponent, ended up raising $930,000 in the quarter – pushing his total raised to $2.4 million. That’s not just more than Roy raised. It’s more than 10 times as much as every previous Democratic candidate there had raised, combined, since 2008.
This sort of windfall is happening across the country, helped by small or infrequent donors. The biggest House Democratic earner is Kentucky’s Amy McGrath, a first-time candidate in Kentucky’s 6th District, who achieved viral fame last year; she raised $3.65 million from July through September…
Several Republicans, including Rep. Duncan Hunter (R-Calif.) and West Virginia’s 3rd District nominee, Carol Miller, have cited ActBlue, a Boston-based organization that creates a simple fundraising portal for campaigns, as evidence that liberal elites are meddling in their elections…
Meanwhile, the attacks on any kind of Democratic fundraising, whatsoever, as being the work of out-of-state elitists may be lowering the risk of taking actual elite money.
Dallas News: ActBlue donors alone sent $25 million to Beto O’Rourke in costliest Senate race of 2018
By Todd J. Gillman
O’Rourke pulled in more than $11 million in July and August alone, just through ActBlue, the Democratic fund-raising platform. Last week, the three-term El Paso congressman also set — and exceeded — an aggressive one-week $5 million online goal.
That’s $16 million that hasn’t yet shown up on his campaign finance reports. It doesn’t count whatever he pulled in through ActBlue in September, nor all the other donations that came his way since July 1.
That puts O’Rourke’s tally at nearly $40 million — an astonishing sum not just for a challenger but for any Senate candidate anywhere, ever.
Donations flowing through ActBlue alone account for $25.4 million of that — another eye-popping sum that shows the power of harvesting donations from hundreds of thousands of low-dollar supporters, rather than having to rely on the relative few who are willing to cut a check for $2,700, the current legal cap.
“I don’t know the last Democrat who’s raised that much money,” said Jennifer Duffy, managing editor at the Cook Political Report and a top Senate campaign handicapper…
When Cruz won his seat in 2012, the tally hit nearly $70 million, but Democrats accounted for hardly any of that. More than $28 million came from then-Lt. Gov. David Dewhurst, who outspent Cruz 2-1 and still lost the GOP nomination – proving that money isn’t everything in politics…
Republicans have nothing equivalent to ActBlue, Duffy noted, making it harder for them to raise massive sums online from fans around the country, as O’Rourke has done.
The States
Capital Press: Washington court upholds fine against anti-GMO group
By Don Jenkins
A Washington appeals court in Tacoma affirmed Tuesday that an anti-GMO group must pay a $319,281 fine for not reporting the names of more than 7,000 donors who supported a labeling initiative in 2013.
In a 2-1 ruling, the court rejected Food Democracy Now’s argument that it shouldn’t have been convicted because it didn’t intentionally hide the donations…
The Iowa-based Food Democracy Now reported itself as the source of more than $200,000 for the “yes” campaign. It didn’t disclose individual names of contributors until after the election. The group was fined in Thurston County Superior Court…
In a dissenting opinion, Judge Thomas Bjorgen said that although Food Democracy Now failed to file timely reports, it did not hide that it was making contributions and therefore was not concealing contributions.
Food Democracy Now also claimed the fine levied against it was unconstitutionally excessive. The majority ruled there was too little evidence in the trial court record to support that claim…
In a similar case, the appeals court in September overturned an $18 million fine against the Grocery Manufacturers Association. The court ruled that another Thurston County Superior Court judge erred by finding the trade association intentionally broke the law by shielding from public disclosure the food and beverage companies that contributed to the “no” on I-522 campaign. The finding allowed the judge to triple the underlying $6 million penalty.
The court upheld the conviction, but sent the penalty back to Thurston County to reconsider. Attorney General Bob Ferguson said he will seek to restore the $18 million penalty. Even at $6 million, the fine would be the largest ever in the U.S. for a campaign finance violation.
Arizona Republic: Prop. 306 is the wrong way to reform Arizona’s Clean Elections system
By Robert Robb
In 2016, several publicly financed candidates made payments to the Democratic Party. Republicans and conservatives believe that this was, at least in part, a scheme. Money was pooled within the party and then diverted from safe districts to more competitive ones.
Prop. 306 would prohibit publicly financed candidates from making any payment to a political party for any purpose. Or to a politically active nonprofit, such as a labor union…
In 2011, the U.S. Supreme Court declared the matching funds feature unconstitutional. The commission nevertheless asserts the right to regulate and take enforcement action against privately funded candidates and independent expenditure campaigns…
State law also gives general enforcement authority over campaign law violations to the secretary of state and the attorney general.
So, Arizona currently has a dual enforcement system. There can be conflicts over requirements and differing judgments about enforcement.
This is obviously unfair to those who participate in politics and needs to be corrected…
The clean way to do that would be to amend its jurisdiction to clarify that it only includes publicly financed candidates. Instead, Prop. 306 attempts to do so indirectly by stripping the commission of its exemption from the state’s Administrative Procedures Act. That makes its rules subject to the oversight of the Governor’s Regulatory Review Commission, which takes a dim view of the commission’s attempts to regulate privately funded candidates and independent expenditure campaigns.
