Event
National Constitution Center: Should We Amend The Constitution To Authorize Political Spending Limits?
America continues to debate the Supreme Court’s jurisprudence on political campaign spending. Join Ciara Torres-Spelliscy, professor of law at Stetson University, as she moderates a conversation with Jeff Clements of American Promise, Elizabeth Doty of Leadership Momentum, Bradley Smith of the Institute of Free Speech, and Floyd Abrams, senior counsel at Cahill Gordon & Reindel, as they discuss whether the First Amendment was meant to prohibit limits on election spending, and whether or not a new constitutional amendment is necessary to ensure an equal voice for all Americans.
Date: Monday, November 19
Time: 6:30 PM
The Courts
Washington Post: Trump lawyers, CNN square off in federal court in Jim Acosta case
By Paul Farhi
The judge overseeing a lawsuit brought by CNN said he would decide by Thursday afternoon whether to grant CNN’s motion for a restraining order that would temporarily restore Acosta’s access to the White House.
Wednesday’s skirmish in U.S. District Court in Washington was the first since CNN filed its suit Tuesday…
“I don’t think anyone would dispute, if [Trump] wants to exclude all reporters from the White House grounds, he clearly has the authority to do that,” [Justice Department attorney James] Burnham argued at one point during the 110-minute hearing. “There’s no First Amendment right . . . for journalists to be there.”
He also argued that CNN’s and Acosta’s First Amendment rights weren’t injured by the decision to exclude Acosta – as CNN contends – because the network has dozens of other journalists with White House passes who could report in his place. He also said Acosta was free to keep reporting on Trump by watching television coverage of him outside the White House gates.
That brought a sharp reply from CNN lawyer Ted Boutrous, who said the government had “a warped view” of journalism and due process. CNN’s lawsuit contends that Trump’s actions violate both the First Amendment and the Fifth Amendment, which ensures that government actions are guided by clear procedure, not arbitrary action.
“The government’s now taking the position that [the president] can do anything he wants,” Boutrous said…
CNN and Acosta have gotten support from mainstream news organizations, which said Wednesday they would jointly file friend-of-the-court briefs on CNN’s behalf. The organizations included The Washington Post, the New York Times, Fox News, NBC News, the Associated Press, Bloomberg and others.
Wall Street Journal: The NRA Will Have Its Day in Court
By James Freeman
Last week the New York Law Journal reported:
The National Rifle Association’s lawsuit against New York Gov. Andrew Cuomo and a state agency will move forward after a federal judge rejected part of the state’s motion to dismiss the group’s First Amendment claims…
In May this column described how Mr. Cuomo was using the state’s financial regulatory agency to intimidate insurance companies, banks and other firms into turning down business with the NRA. The gun-rights group sued Mr. Cuomo after he ordered the state’s Department of Financial Services to tell the firms it oversees “to review any relationships they may have with the National Rifle Association and other similar organizations. Upon this review, the companies are encouraged to consider whether such ties harm their corporate reputations and jeopardize public safety.”
The same day as Mr. Cuomo’s announcement, New York’s chief financial regulator Ms. Vullo sent out a bulletin urging companies to manage their “reputational risks” related to organizations like the NRA. She claimed that “in this area society, as a whole, has a responsibility to act and is no longer willing to stand by and wait and witness more tragedies caused by gun violence, but instead is demanding change now.” Ms. Vullo and her agency have also been sued by the NRA.
According to Judge McAvoy’s opinion, “The allegations in the Amended Complaint are sufficient to create a plausible inference” that actions by the Cuomo administration “constituted implicit threats of adverse action against financial institutions and insurers that did not disassociate from the NRA.”
The Judge adds that regulatory actions against two insurers suggests that the State of New York was using its financial regulatory apparatus to punish people for their beliefs…
Disclosure
Politico: The growing prevalence of dark money
By Zach Montellaro
Advocates for transparency in political spending place the blame for the spread of dark money squarely on the FEC. “All you need is action by the Federal Election Commission,” said Adav Noti, a senior director at the Campaign Legal Center. “The bad news there is you need action by the Federal Election Commission. … The FEC isn’t going to fix it. The question then is who is?”
Advocates have proposed several different routes for changing dark money spending and disclosure – through the courts, agency action or Congress, where the new Democratic House majority wants to make campaign finance legislation a priority. And while a recent court decision closed one loophole that allow groups to avoid disclosure, plenty more remain. “Any moderately competent campaign finance lawyer in the current environment can drive a truck through the remaining loopholes,” Noti said.
Possibly the most politically palatable solution would be to expand disclosure. “If there’s going to be spending, disclose the donors behind the groups,” said Tyler Cole, Issue One’s legislative director. “We were in roughly 200 different congressional offices in the 115th Congress. Behind closed doors, we had a pretty common thread … that they really don’t like dark money. … They’re somewhat resigned that there’s going to be outside spending, but what they hate is that a group can come in and dump millions of dollars … and they don’t even know who it is. This is a thread we’re hoping to seize on and capitalize in the 116th and beyond.”
Free Speech
New York Times: U.K. Ad Highlighting Plight of Orangutans Is Deemed Too ‘Political’ to Air
By Iliana Magra
The prohibition of political advertising was first enacted in the 1950s, when there were only a few holders of broadcast licenses and it was feared they would use their power in the broadcasting world to promote their own agendas.
“The regulation stopped license holders from conveying their views, and denied parties the opportunity to advertise political messages,” Andrew Scott, an associate professor of law at London School of Economics and Political Science, said by telephone.
Political ads have been banned ever since, even during election campaigns, although political parties are each allotted a specified amount of time to present their platforms. The ban on political advertisements applies to nongovernmental organizations and other groups, unless the ad is for a charitable cause.
According to a judicial case heard in the House of Lords in 2008, the rationale behind the regulation is “to protect democracy from overpowerful voices,” Mr. Scott said.
“It’s almost the flip side to what you find in the United States, where there is more of a laissez-faire approach, if you want to spend your money on buying airtime, you can,” he said. “There is a more paternalistic, condescending view reflected in this law.”
The United States once had what was called the Fairness Doctrine, introduced in 1949, requiring broadcasters to give equal time to opposing viewpoints, but that was done away with in the Reagan administration.
Political spending, and by extension advertising, was unleashed in two Supreme Court decisions, Buckley v. Valeo in 1976 – which allowed unlimited campaign spending outside of direct donations – and Citizens United in 2010, which allowed unlimited spending as long as it was not “coordinated” with a political campaign.
SEC
Wall Street Journal: How the SEC Silences Criticism
By Peggy Little
One of the strongest rules in free-speech law is that the government may not engage in “prior restraint” of speech except in extreme circumstances. Yet the Securities and Exchange Commission does so routinely. Under a rule adopted in 1972, the SEC demands that parties entering into settlements with the commission be silenced about the prosecution forever. If they question the merits of the case against them, the SEC reserves the authority to reopen it.
“The result is a stew of confusion and hypocrisy,” Judge Jed Rakoff observed in a 2011 ruling. “The defendant is free to proclaim that he has never remotely admitted the terrible wrongs alleged by the S.E.C.; but, by gosh, he had better be careful not to deny them either. . . . An agency of the United States is saying, in effect, ‘Although we claim that these defendants have done terrible things, they refuse to admit it and we do not propose to prove it, but will simply resort to gagging their right to deny it.’ “
After the 2008 economic crisis, the rule faced blistering criticism from judges and scholars, who noted that it violates the First Amendment and permits potentially collusive settlements that bilk shareholders and taxpayers and shields a powerful agency’s practices from public scrutiny.
The gag rule violates a hornbook’s worth of legal doctrine: It is a prior restraint and a content-based restriction on speech. It serves no compelling government interest while employing the most restrictive means to accomplish its ends. It prohibits truthful speech, compels government-scripted speech, violates due process, impairs the First Amendment rights to petition government, and infringes the right of the public to hear criticisms of the government.
Internet Speech
ACLU: The Costs of Forcing an Online Haven for Racists Off the Internet
By Jay Stanley and Vera Eidelman
It may be tempting to say, “I don’t care if these racists can’t get on the internet.” But we don’t want a world in which a small number of gatekeeper companies get to decide who can and cannot speak online. The internet is the meaningful speech arena of today’s world, and anything that individuals may say in a park, they should be able to say somewhere online.
Let’s remember that at various times and places in the 20th century it was generally agreed that certain speech was regarded as “beyond the pale,” including speech advocating communism, homosexuality, racial equality, and birth control. Would the GoDaddys and Paypals of the era, if they had existed, have refused to do business with individuals and organizations taking those positions?
Today, private companies frequently make bad calls: Various iterations of Facebook’s and YouTube’s community standards have led to the silencing of activists of color speaking out against racism, human rights activists seeking to shine a light on ongoing abuses, and health organizations offering information about sexual health.
Companies that have only the bluntest tools at their disposal are even more likely to make mistakes or reach too far. For domain registrars, for example, the only choice is to leave a website up in its entirety or take the whole thing down.
Indeed, faced with controversies, companies often act in response to business and political pressures against customers who are deeply unpopular. When the major credit cards, PayPal, and Western Union blockaded Wikileaks in 2010 after that site posted government documents on the U.S. war in Iraq and other subjects, they did so under pressure from U.S. politicians, for example.
The fact is, such steps may only serve to worsen the problem as racists bolster their reprehensible views with a sense of persecution.
Fundraising
Politico: Money troubles: The GOP’s problem with cash
By Alex Isenstadt
With the next campaign already on the horizon, Republicans view their online donor deficit – particularly acute in House races, but significant in Senate contests, too – as a primary obstacle. Josh Holmes, a top McConnell political adviser, has begun making calls to senior Republicans, and a group of party figures is expected to convene after Thanksgiving. An ActBlue counterweight, he said, would require buy-in across the splintered Republican Party apparatus.
Republicans have long acknowledged the shortcoming and spoken out about the need to fix it, to no avail. But this year’s gaping money disparity between the two parties has snapped the GOP to attention…
The concern comes after a 2018 campaign in which the party was outraised by historic proportions. During the third quarter, 92 House GOP incumbents collected less money than their Democratic challengers, and 51 of those Republicans raised less than half the amount taken in by their rivals…
Among the lessons Republicans say they learned this year is that the party can no longer just rely on a few billionaire megadonors…
Republicans concede their advantage in billionaire giving has narrowed considerably. Former New York City Mayor Michael Bloomberg and San Francisco hedge-fund manager Tom Steyer each plowed more than $100 million into campaigns for Democrats, investments that stretched the 2018 map and put Republicans on defense in races once thought to be beyond reach for the opposing party.
Just as important, Republicans say they’ve come to fully recognize the limitations of billionaire-funded outside groups. Because super PACs must pay a higher rate to air TV commercials than individual candidates, those candidate-raised dollars go further.
The States
Olney Enterprise: Court Calls Ethics Commission’s Bluff In Suit
In 2014, THSC [Texas Home School Coalition Association] filed suit against TEC [Texas Ethics Commission] to prevent them from enforcing unconstitutional rules they had adopted to curtail the freedom of political speech by nonprofit corporations like THSC.
The original rules proposed by TEC required that any nonprofit that spent more than 25 percent of its annual budget on election-related work must report to the state as if it were a political action committee (PAC). To calculate this 25-percent threshold, TEC said the nonprofit must factor in everything from staff salaries to the cost of office rent and even the value of volunteer hours…
Under this expansive criterion, THSC’s actual percentage of election-related work would have ballooned from 20 percent to nearly 50 percent, subjecting THSC to burdensome regulations and requirements to disclose the names and addresses of THSC members…
At oral arguments before the 3rd Court of Appeals in November of 2017, TEC successfully avoided addressing how they had routinely threatened nonprofits, including THSC, with investigation and regulation. They argued instead that nonprofits like THSC could not be subject to the new rules at all…
In a contradiction that only a government agency could rationalize, this argument came after TEC had signed a preliminary injunction agreeing not to enforce regulations so long as THSC’s spending remained below 20 percent of our budget…
On Tuesday, November 6, the 3rd Court of Appeals dismissed the suit, conditioning their decision on TEC’s new position that THSC and similarly situated nonprofits could not be subject to this unconstitutional regulation…
However, because the suit was dismissed rather than decided on the merits, THSC is unable to recoup half a million dollars in attorneys fees that it cost to force the TEC back inside its constitution-sized box. Freedom is costly.
Seattle Times: Big Oil and Big Soda save the people from bad ideas
By Bruce Ramsey
Thank you, Big Oil. And thank you, Big Soda.
I have a number of friends who deeply resented all the money you spent to sway their votes on Initiative 1631 and Initiative 1634. Your propaganda, they say, made them want to vote against you. (They would have voted against you anyway.) I’ll have to admit that some of the junk you stuffed in my mailbox was pretty bad, but propaganda doesn’t bother me. I vote the way I want – and this year I lined up with Big Soda and Big Oil…
For years I have heard Seattle progressives denounce the U.S. Supreme Court for unleashing private industry’s political speech under the false doctrine that corporations are people. The decision to which they refer, Citizens United, also unleashed labor unions, environmental groups, Indian tribes and other not-for-profit groups under the doctrine that they are also people. And they are, in the same way corporations are, though I never hear the progressives complain about it.
The right of political speech includes the right of both sides to speak junk. And every two years that is what they do. We can be thankful that this year’s junkfest is over – but admit also that some of the junk was on your side.
Reason: Portland City Council Rejects Mayor’s Constitutionally Dubious ‘Emergency Ordinance’ on Protests
By Joe Setyon
The Portland City Council voted 3-2 yesterday to reject Mayor Ted Wheeler’s proposed “emergency ordinance” to crack down on violent protests.
The decision is a win for First Amendment advocates, who had expressed concern that the ordinance curtailed constitutional rights and gave Wheeler too much power…
Wheeler proposed the ordinance last month after a series of violent incidents between left- and right-wing demonstrators. The latest of these clashes involved the right-wing group Patriot Prayer and antifa counterprotesters. Some protesters exchanged blows, leading police to intervene with non-lethal ammunition, though no arrests were made.
Following that clash, Wheeler proposed his emergency ordinance, which would have permitted the police commissioner (a position Wheeler holds as mayor of the city) “to issue reasonable time, place, and manner regulations to govern demonstrations” when he “anticipates a high risk of danger and violence.”
Wheeler would have been allowed to issue such regulations if groups with a history of violence against each other plan to protest on the same day, if the safety of “participants and bystanders” is in jeopardy, or if he thinks a demonstration would lead to “interference with the ability to access public property, or the disruption of public services.” He also would have been able to restrict demonstrations based on “substantial likelihood of violence.”
Under the ordinance, a violation of Wheeler’s restrictions could lead to arrest and would be considered a misdemeanor.
The American Civil Liberties Union (ACLU) opposed the ordinance on the grounds that it “grants broad authority to the mayor’s office to regulate constitutionally-protected speech and assembly with no meaningful oversight for abuse,” according to ACLU of Oregon Legal Director Mat Dos Santos.
