In the News
CommonWealth Magazine: Question 2 is a bad idea
By Bradley A. Smith and Paul Craney
Question 2 deals with what is largely a phantom threat. Even before Citizens United, 26 states allowed for-profit corporations to make political expenditures in state races, yet those states, such as Oregon and Utah, had no more “corporate dominance” than those such as Massachusetts, which barred such spending. That’s still true.
In 2016, direct spending by for-profit corporations in federal elections was less than $1 million, out of more than $6 billion spent in total. Even including spending by trade associations and by incorporated membership organizations such as Citizens United, Planned Parenthood Action Fund, and NAACP Action Fund. spending by corporations was, under the most liberal counting, about 6 percent of total political spending on federal races…
An even bigger problem, though, is the proposal’s fixation on “artificial entities or aggregations of people.”
Contrary to what some believe, Citizens United neither created nor depended on the argument that “corporations are people.” Indeed, the Court was unanimous in recognizing that corporations have constitutional rights-a doctrine that goes back to our nation’s founding. The legal fiction of “corporate personhood” simply recognizes that we don’t lose our rights just because we join together to exercise them. We can exercise our free speech individually, but we’re much more effective if we join together with like-minded people in organizations such as the Sierra Club, NRA, or Planned Parenthood. Our First Amendment rights to protest, speak, and assemble would be hollow if, as soon as we got together with friends (thus forming an “aggregation of people”), we had to surrender those rights.
Americans for Tax Reform: A Tax on Everything, Tom Steyer’s Energy Takeover, & Blocking Grocery Taxes – Ballot Measures Part 1 (Podcast)
Free speech, energy, and plenty of taxes. With elections near, experts discuss key ballot measures…
Eric Peterson of the Institute for Free Speech deals with multiple measures to restrict first amendment liberties. (49:55)
First Amendment
Sacramento Bee: Hate speech is infecting America, but trying to ban it is not the answer
By Erwin Chemerinsky
Although the government may impose greater punishments on crimes motivated by hate, the law is clear that the expression of hate is protected by the First Amendment. The government cannot punish speech even if it is deeply offensive – and there is no reason to believe that censoring hate speech will make hate crimes less likely…
Every European country has a law banning hate speech, so why not the United States? In part, it is the difficulty of defining hate speech in a manner that is not unduly vague or broad. Decades of efforts – by states, municipalities and universities – have demonstrated that all such codes are impermissibly vague.
Typically, in both the United States and Europe, laws prohibiting hate speech outlaw expression that “stigmatizes,” “demeans,” or “insults” people on the basis of race, religion, gender or sexual orientation. In the early 1990s, more than 360 U.S. colleges and universities adopted hate speech codes using language like this. Every code taken to court was declared unconstitutional.
Moreover, hate speech is protected under the Constitution because it expresses an idea, albeit a vile idea. Protecting hate speech is necessary because the alternative – granting governments the power to punish speakers they don’t like – risks even greater harm…
History shows that punishing hate speech risks creating martyrs and rallying support. There is no evidence that banning hate speech does anything to lessen the presence in society of racist ideas or even racist crimes. The law is clear that hate-motivated crimes can be subject to enhanced punishments; it is just the speech that is protected by the First Amendment.
I do not minimize the harms of hate speech, and I am truly frightened by the hate crimes of recent days. It is imperative that we reflect as a society on what is causing this and what to do about it. But censorship is not the answer.
Congress
By Paul Blumenthal
The first bill Democrats plan to introduce and pass if they win control of the House of Representatives on Nov. 6 will be a comprehensive package of campaign finance, voting rights, redistricting and ethics reforms.
The presumptive H.R. 1 will be based on a House resolution introduced in 2018 by Rep. John Sarbanes (D-Md.) and co-sponsored by 165 Democratic House members, including the entire party leadership…
A coalition of 100 groups called the Declaration for American Democracy – including broad-based membership organizations like the NAACP, Planned Parenthood, Sierra Club, Indivisible, Public Citizen and Common Cause – endorsed this democracy reform package as the first priority for a Democratic House on Tuesday. The coalition will organize its members to support the passage of this legislation if Democrats win control of the House…
The planned legislation would create a public financing system for congressional elections and provide matching funds for small-dollar donations raised by participating candidates. This part of the proposal comes from the Sarbanes’ Government by the People Act. Additional reforms would include increasing disclosure for dark money and digital advertising, strengthening laws prohibiting coordination between candidates and super PACs and barring lobbyists from bundling campaign contributions.
Washington Post: Job No. 1 for a Democratic House? A sweeping good-government bill, groups say.
By Mike DeBonis
Democratic Party leaders are under pressure from a broad coalition of liberal groups to make a sweeping government-overhaul bill their first order of business in January if the party wins a House majority.
The effort has gotten at least tentative backing from top House Democratic leaders. Minority Leader Nancy Pelosi (Calif.) and Minority Whip Steny H. Hoyer (Md.) have called for early ethics legislation and specifically praised the work of Rep. John Sarbanes (Md.), who released a broad legislative blueprint earlier this year.
But the demand from outside groups – including influential organizations such as the Service Employees International Union, Planned Parenthood, and the Leadership Conference on Civil and Human Rights – who have signed a “Declaration for American Democracy” stands to make an overhaul bill a top priority, even as Democratic candidates campaign mainly on preserving affordable health care and Social Security…
“Only by winning foundational reforms to our process can we hope to move forward substantive reforms in other areas that are so important to the American people, from protecting our environment to improving the lives of consumers and working families to lowering prescription drug prices and so much more,” said Lisa Gilbert, vice president of legislative affairs for Public Citizen, who promised a “comprehensive inside-outside-D.C. campaign” following the election…
The changes they are seeking include national automatic voter registration, ending the ability of lobbyists to “bundle” campaign donations and sending a constitutional amendment to the states to overturn the Citizens United Supreme Court decision…
The Democratic resolution does not include further restrictions on corporate PAC money, and Sarbanes said it’s unlikely to be included for constitutional reasons.
Fundraising
CNN: The $5 billion election: How the 2018 midterms became the most expensive in history
By Fredreka Schouten
Democratic donors are fueling the dramatic increase, according to the analysis by the non-partisan Center for Responsive Politics. It predicts spending will surpass $5.2 billion by November 6 — a 35% jump over the 2014 midterms and the largest leap in at least two decades.
In all, Democratic House candidates have raised more than $951 million, far exceeding the $637 million that went to their Republican rivals, according to the center’s tally.
Money raised directly by candidates goes further than funds collected by outside groups because television stations must provide candidates the lowest available advertising rate in the weeks leading up to the election. Other groups active in the midterms, such as super PACs, do not qualify for the lower rates.
The Democratic candidates’ lopsided fundraising advantage also is playing out in the most competitive races.
Over the course of the election cycle, donors have sent $166.8 million to Democratic candidates in the 30 House contests CNN has identified as toss-ups. Republicans in those races collected just $90.7 million.
“You don’t need to be a political analyst to say that a lot of this is driven by rage,” Sarah Bryner, the center’s research director said of the surging donations to Democrats. “You have people in places like Boston and Chicago and San Francisco and New York who are making political giving part of the strategy to express their dissatisfaction with the President.”
Los Angeles Times: Republican campaign money stretched thin as the party battles on unexpected fronts
By Evan Halper and Maloy Moore
The energy of the left has given many Democratic challengers a crushing fundraising advantage, putting Republicans on the defensive in an unexpectedly large share of the political map…
[E]specially in races for the House, Democrats have eclipsed the GOP in small donations and have also gone toe to toe with them in big cash infusions from dark-money donors and political action committees…
Hidden big money “is not just the realm of the right anymore,” said Sarah Bryner, research director at the Center for Responsive Politics, a campaign finance watchdog.
The jump in overall giving since the last midterm election is the biggest the nation has seen in 20 years, according to the center. Donors to Democratic candidates so far have contributed 44% more than they did in the last midterm cycle. That’s more than double the increase among donors to Republican candidates.
Some groups of Democratic donors have accelerated their giving way beyond that. Women are giving to Democrats at more than triple the rate they did in the last midterm election, according to the center.
“Females have increased the amount they are giving this cycle dramatically,” Bryner said. “It is just staggering.”
Candidates and Campaigns
Kansas City Star: Anonymous ads attack Josh Hawley on guns and Greitens
By Jason Hancock
Voters around the state are receiving political mailers from an anonymous source attacking Republican U.S. Senate candidate Josh Hawley on a range of issues – from gun rights to his push to oust former Gov. Eric Greitens.
And they each imply voters should support a third-party or independent candidate.
The mailers fail to identify who paid for them, which is required by law. But they appear to be connected to a group called Coalition for a Safe Secure America, which has run Facebook ads against Hawley and other anonymous mailers attacking GOP senate candidates in Montana and Indiana…
McCaskill’s campaign denied any connection to the mailer.
“Claire condemns all dark money efforts, including these mailers,” said Meira Bernstein, McCaskill’s spokeswoman. “Josh Hawley supports anonymous political giving, and Claire will continue to work hard to end it.”
The mailers are similar to ones circulating in Montana and Indiana, two other states like Missouri where an incumbent Democrat is running in a tight Senate race. The ads appear to be the work of Coalition For a Safe Secure America, a group that is not registered with the Federal Elections Commission or the Internal Revenue Service.
The group has run 21 different Facebook video ads in Missouri, some with the same messaging and stock images as the mailers circulating Missouri.
Attempts to reach Coalition For a Safe Secure America were unsuccessful, and the group’s website is “under construction.”
The States
Governing: Should Candidates Running Against Millionaires Get More Money?
By Alan Greenblatt
Amendment W [in South Dakota] would create a seven-member ethics board, while also banning state and local officials from lobbying while in office and for two years after leaving office. It would ban gifts from lobbyists to governmental officials, except for relatives, while capping contributions to candidates. The limits for donations from any source range from $500 for state House and local candidates to $4,000 for candidates for governor.
The amendment is long — 3,300 words — and complicated. Its opponents, including business groups, argue that it’s too vague and gives too much power to the proposed ethics board. They also complain it’s being funded by an out-of-state group known as Represent.Us. (A separate South Dakota initiative would ban contributions from out-of-state sources to ballot measure campaigns.)…
The arguments in North Dakota are running along similar lines. A measure there would create a five-member ethics commission, while also banning gifts from lobbyists. Additionally, it would ban political contributions from foreign entities and individuals, while requiring easily accessible disclosures of contributions exceeding $200…
Opponents of the measure say that it’s too vaguely worded, leaving its budgetary impact unclear, while enshrining vague and ill-defined powers for the ethics commission in the state constitution. Groups including the ACLU’s North Dakota chapter have also warned that requiring individuals and groups to disclose anytime they spend more than $200 to influence the legislature could have a chilling effect on speech…
Aiming to level the playing field, Amendment 75 [in Colorado] would allow candidates whose opponents spend more than $1 million on their races to receive contributions five times as large as under normal limits.
Columbia Missourian: Clean Missouri’s campaign finance limits draw mixed reviews
By David Reynolds
Amendment 1 had received nearly 70 percent of its donation money from out-of-state sources since the beginning of July, according to data released by the Missouri Ethics Commission earlier this month. Some of the largest out-of-state donations came from Action Now Initiative, a nonprofit that is not required to disclose its donors.
The group, started by billionaires John and Laura Arnold, has donated more than $1 million to Clean Missouri. MU law professor Richard Reuben said this is somewhat ironic when the amendment is intended to limit the influence of lobbyists and campaign contributions.
“It is surprising that an initiative aimed at transparency in government would accept dark money for its funding, much less be its primary, or most substantial, contributor,” Reuben said.
Both Reuben and Cunningham said they could see Amendment 1 resulting in a greater number of PACs as individuals and organizations try to circumvent the campaign contribution limits by giving to multiple PACs.
But Clean Missouri communications director Benjamin Singer said that sort of giving is the result of a loophole left by a constitutional amendment approved by Missouri voters in 2016 that established the current $2,600 campaign contributions limit. Singer said it would not be possible if Amendment 1 passes.
In addition to lowering the campaign contributions limit, Amendment 1 would prohibit candidates from accepting contributions from organizations or committees primarily funded by a person or other committee that has already reached its contribution limit. This would make it more difficult to funnel money through multiple PACs.
Washington Post: D.C. officials dismiss campaign finance complaint against Bowser over rally
By Fenit Nirappil
D.C. officials on Wednesday dismissed a campaign finance complaint against Mayor Muriel E. Bowser (D) for an rally in which she promoted a candidate in a heated council race.
The government watchdog group Public Citizen alleged the mayor’s Oct. 14 rally was an illegal in-kind contribution to the candidates she endorsed and asked the D.C. Office of Campaign Finance to investigate.
But the agency said Public Citizen presented insufficient proof and dismissed the complaint in an order issued Wednesday.
Bowser’s get-out-the-vote rally featured council member Anita Bonds (D-At Large) and Dionne Reeder, who is seeking to unseat council member Elissa Silverman (I-At Large) in the most competitive contest of the election…
The mayor’s reelection campaign had dismissed the complaint as an attempt by Silverman to go negative late in the campaign.
Public Citizen acknowledged that Silverman brought the rally to its attention, but said the group’s complaint wasn’t politically motivated. The group previously filed a complaint against the mayor for accepting excess contributions in her 2014 run.
Bangor Daily News: Maine Democrats parlay public financing to big campaign cash advantage
By Michael Shepherd
Democrats are outspending Republicans by a historic margin in legislative races in 2018 as they seek to win control of both chambers for the first time in six years…
Republicans are used to being outspent in legislative races, but this year is different. In the last five legislative cycles from 2008 to 2016, Democrats have generally used an edge in outside money to outspend Republicans in legislative races. In 2018, the candidates are also spending more and management of the taxpayer-funded Clean Election program is a major reason why.
In both chambers, Democrats have spent just over 69 percent of the campaign money and outside money that has come into legislative races this year…
Those highest-spending Senate campaigns are being driven by taxpayer money. Some of those candidates will likely come up short. The 12 highest spenders are using the Clean Election system – which was disabled by Gov. Paul LePage for part of the campaign – and 10 of them are Democrats to just one Republican and one independent.
