In the News

National Constitution Center: Podcast: The First Amendment and the freedom of expression

By NCC Staff

Clinton and Trump have offered thoughts and proposals on a range of First Amendment issues, from the publication of private tax returns in The New York Times and the future of Citizens United to the prosecution of terrorism-related speech and beyond.

Joining We the People to discuss the First Amendment and the 2016 presidential campaign are two leading constitutional scholars.

Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law, with a joint appointment in Political Science.

Bradley Smith is the Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School in Columbus, Ohio.

CCP

Heritage Foundation Event Highlights Donor Privacy, CCP Cases

By Luke Wachob

Attacks on donor privacy are increasingly seen as one of the foremost threats to free speech in America, if a Thursday event at the Heritage Foundation is any indication. The conservative think tank brought in four speakers to address assaults on the First Amendment ranging from infringements on religious liberty to university speech codes to everything in between. Two of the four speakers devoted the majority of their remarks to problems the Center for Competitive Politics is all too familiar with – intimidation tactics and bureaucratic bullying aimed at silencing the speech of advocacy organizations by exposing their supporters to retaliation and harassment…

The work of educating and mobilizing support for donor privacy continues. CCP is on the front lines of that battle, sounding the alarm bell and working with groups who find themselves under assault… While disclosure laws often seem too in-the-weeds to impact our lives, they strike at the heart of the First Amendment: specifically, the right of Americans to privately support the causes they believe in without fear of intimidation and harassment. 

The Hidden Admissions of the “Unilateral Disarmament” Defense

By Alex Baiocco

Candidates who wish to further regulate political speech that decide to practice what they preach would have a tough time competing against candidates that are not limiting their sources of financial support by arbitrarily picking and choosing whose support to accept from those who agree with their message.

More important, however, is the fact that by using this justification, these politicians are admitting the essential truth about political spending: that it is absolutely necessary for effectively speaking to the electorate. In other words, they are accepting the fact that the “big money” that they decry is being spent on nothing more than speech and that further limiting the amount of money citizens are permitted to contribute would achieve nothing more than reducing the overall amount of speech that occurs in the campaign process.

Furthermore, they are also acknowledging that money in politics is not inherently corrupting. Politicians would never attempt to make the argument that they must embrace outright corruption because their opponents are. If these “reform” touting politicians really believed that “big money” necessitates corruption, they would stop accepting it.  

Free Speech

Washington Examiner: Judge says Democratic AG’s Exxon probe in ‘bad faith’

By John Siciliano

A federal judge in Texas is questioning the motivations behind a Democratic state attorney general’s investigation into oil giant Exxon Mobil over climate change.

Judge Ed Kinkeade of the federal district court of Texas issued a preliminary discovery order Thursday in which he said he suspected Massachusetts Attorney General Maura Healey acted in “bad faith” by subpoenaing the company for decades of records and emails on the issue of climate change…

Exxon is asking the court to bar Healey from continuing her investigation, saying it is an imposition on its right to free speech under the Constitution. The company also refutes the claims that it tried to cover up its own studies, and said it currently advocates for actions to combat the threat of climate change. 

FEC

Bloomberg BNA: FEC Deadlocks on Increased Contributions for GOP Candidate

By Kenneth P. Doyle

The Federal Election Commission deadlocked on whether to allow an increased campaign contributions limit for Jack Martins, a Republican running for an open U.S. House seat in New York.

Last month, the FEC granted the Martins campaign’s request to raise extra money for a court-ordered primary set for Oct. 6.

The primary subsequently was canceled by an appeals court, and the campaign then asked the FEC if it could continue raising additional money to retire debts incurred due to the cancellation.

This second advisory opinion request led to the deadlock among the FEC commissioners, announced Oct. 12. 

IRS

Detroit Free Press: Nonprofit acknowledges $500K in political activity to IRS

By Todd Spangler

In a news release Thursday, CREW acknowledged that the group’s political spending – now that it has been reported to the IRS – was “technically legal.” The IRS has never finalized rules for what constitutes political activity for nonprofit groups and what qualifies as a nonprofit group’s main focus.

“Michigan Citizens for Fiscal Responsibility admitting to having spent hundreds of thousands on political activity is a good start, but that does not excuse them for attempting to hide it in the first place,” CREW Executive Director Noah Bookbinder said. “They shouldn’t have to wait until they get caught to come clean.”

Congress

Financial Times: Elizabeth Warren urges Barack Obama to fire SEC chief Mary Jo White

By Barney Jopson

In a blistering letter on Friday, Senator Elizabeth Warren called on Mr Obama to use exceptional powers to eject Ms White, accusing her of standing in the way of greater corporate transparency…

She said Ms White had an “anti-disclosure” agenda and zeroed in on her alleged failure to develop a rule mandating the disclosure of political spending by companies – a hot issue since a loosening of restrictions on US campaign finance in 2010.

“Chair White’s refusal to move forward on a political spending disclosure rule serves the narrow interests of powerful executives who would prefer to hide their expenditures of company money to advance their own personal ideologies,” she wrote. 

Candidates and Campaigns

Politico: Hacked emails show Clinton team debated Steyer role in supporting campaign

By Andrew Restuccia

Aides to Hillary Clinton’s campaign privately debated how billionaire environmentalist Tom Steyer could best help the Democratic candidate without violating campaign finance laws, according to hacked emails released by WikiLeaks Thursday.

The aides attempted to figure out a way that Steyer could host an event with Clinton even though his super PAC, NextGen Climate, was planning independent expenditures. Campaign finance rules bar coordination between campaigns and outside groups that do independent expenditures…

The Clinton campaign has not confirmed the authenticity of individual emails, and it has called WikiLeaks “nothing but a propaganda arm of the Kremlin with a political agenda doing Putin’s dirty work to help elect Donald Trump.”  

NBC Los Angeles: Clinton to Hold Final Los Angeles Area Fundraising Dinner Before Election

By City News Service

Political fundraisers with a $100,000 (or more) ticket price are the result of a series of court decisions, “which have made it increasingly easy for candidates of both parties to raise larger and larger amounts of money — not necessarily for their own campaigns, but for their respective political parties and related activities,” said Dan Schnur, the director of the Jesse M. Unruh Institute of Politics at USC…

“One of the most important contributing forces to the decline in voting participation among young people is the immense amount of money that is given to campaigns by wealthy donors on both sides,” Schnur said.

“My students know that they get one vote. But they also understand that a CEO or a union head or a wealthy individual in either party gets hundreds of thousands if not millions of votes. It’s no wonder they’d rather clean up a park” than get involved in politics, he said.

CRP: Liberal big money is pouring into elections

By Soo Rin Kim

If you think campaign finance is just a right-wing billionaires’ spending spree, take another look. Liberal money has been pouring into federal elections in recent years.

In 2012, when post-Citizen United money started flowing in earnest, wealthy Republicans took the leading roles. The number of individuals making contributions of $1 million or more grew from 16 in 2010 to 108 in 2012. That year, 69 percent of the $380 million coming from the top 100 individual donors was conservative money.

This election, liberal benefactors have worked to close the gap. So far this cycle, about 40 percent of the $558 million provided by the top 100 donors has come from Democrats.

The States

CPI: National groups spar over South Dakota ballot measure

By Liz Essley Whyte

Come Nov. 8, South Dakotans will be asked to vote on a measure that would reshape all things political by initiating public financing of campaigns, expanding disclosure of political donors and creating an ethics commission to police legislators’ behavior.

Both sides in the debate – the one pushing the initiative and one fighting against it – are planning to spend hundreds of thousands of dollars to get what they want. But neither side hails from South Dakota.

In this corner: a nonpartisan group focused on political transparency out of Massachusetts, Represent.Us, which steered Measure 22 onto the ballot. Its top funders are mostly wealthy individuals who struck it rich with West Coast tech companies.

And in the other corner: Americans for Prosperity, a Virginia-based group bankrolled by wealthy industrialist brothers Charles and David Koch and other conservative heavyweights.

San Antonio Express-News: Texas Ethics Commission dismisses long-running ‘dark money’ investigation

By David Saleh Rauf

The Texas Ethics Commission on Monday dismissed a high-profile investigation into the state’s most powerful politically active nonprofit, capping a more than four-year saga that highlighted an ongoing policy debate in the state over disclosure of so-called “dark money.”

With a 7-0 vote, the commission rejected two complaints filed in 2012 against Empower Texans and its President Michael Quinn Sullivan.

Empower Texans is a 501(c)(4) tax-exempt corporation that is allowed to make independent expenditures to influence state elections without having to disclose its donors. The group is the biggest spending politically active nonprofit in Texas, according to state data.

State regulators were investigating the conservative group to determine if it was coordinating with donors to accept or spend money to influence a state election and if it should register as a political action committee, which is required to release donor names.