In the News
NonProfit Times: First Amendment Landscape
By Bradley A. Smith
The Supreme Court of the United States ruled in July that California could not require charities and other nonprofit organizations to submit an annual list of donors to state officials as a pre-condition for soliciting contributions in the state. The case, known as Americans for Prosperity Foundation v. Bonta (AFPF), should have a substantial, positive impact on charities and the Americans who support them…
The ruling strikes down the policy in California and three other states – Hawaii, New Jersey, and New York. Equally important, however, is that outside of political campaigns, any law or policy broadly requiring the publication of donors, either to the public or to the government, is now highly suspect…
Some specific types of compulsory disclosure laws and proposals that may be more vulnerable to constitutional challenge after AFPF include:
[Ed. note: Click on headline to zoom in on text.]
Reason (Volokh Conspiracy): May Beauty Pageants Limit Themselves to “Natural Born Women”?
By Eugene Volokh
My UCLA Amicus Brief Clinic students and I just filed a brief on this subject on behalf of the Libertarian Law Council and the Institute for Free Speech in Green v. Miss United States of America, LLC. (you can also see other briefs here, including from Oregon, Lambda, and the American Association for Justice on Green’s side, and 12 States, the Women’s Liberation Front, Past Pageant Participants, and Pinnacle Peak Pictures on Miss USoA’s).
Supreme Court
SCOTUSblog: A community-college spat leads to a First Amendment retaliation claim
By Amy Howe
From the time he was elected to the board of trustees of the Houston Community College System in 2013, David Wilson contends, he was unwilling to go along to get along. Wilson’s repeated criticism of what he describes as the board’s “pay to play” culture led the board to censure him in 2018. On Tuesday, the Supreme Court will hear oral argument on whether the First Amendment restricted the board’s authority to do so…
Defending the censure at the Supreme Court, the college stresses that the First Amendment prohibits the government from using its power to regulate, compel, or prohibit speech. But the college didn’t do any of those things in this case, it emphasizes. Instead, it says, the censure was merely “peer criticism”: “a pointed expression of the body’s official disapproval and its desire that, as a fellow member of the Board,” Wilson “should speak and act differently in the future.” …
Wilson pushes back against the suggestion that the board’s censure of him was merely “peer criticism.” Houston Community College could have expressed its disapproval of Wilson’s speech by having board members speak out individually, or by adopting a statement indicating that Wilson’s criticisms did not reflect the board’s values, but without censuring him. Instead, he emphasizes, the board relied on its disciplinary power to censure Wilson.
In any event, Wilson writes, the board’s censure of him was “plainly punitive”: Not only did the board express disapproval of his speech, but there were direct consequences…
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the respondent, Mr. Wilson, with the ACLU and The Rutherford Institute. Read it here.]
The Courts
Courthouse News: Anti-abortion group gets green light to protest outside California vaccination sites
By Nick Cahill
Delivering a partial win for an anti-abortion group seeking to picket outside vaccination centers, a federal judge has temporarily barred California from enforcing portions of a new law meant to stem anti-vaccination protests.
U.S District Judge Dale Drozd took issue with the law’s broad definition of harassment and found it chills the free speech of groups attempting to hand out pamphlets or talk with people on sidewalks outside of vaccination clinics. Drozd said he was swayed by Fresno-based Right to Life of Central California’s opening argument that the law, Senate Bill 742, is a content-based restriction on speech and overly broad.
“Even assuming that the state’s interest in ensuring Californians ‘can obtain and access vaccinations’ is a compelling interest — an assumption this court would readily make with regard to access to Covid-19 vaccinations given this ongoing public health crisis and global pandemic — plaintiff has shown that it is likely to succeed in proving that SB 742 is not narrowly tailored to serve that interest,” Drozd wrote in a ruling issued Saturday.
Congress
Washington Free Beacon: GOP Senator Probes Virginia Utility’s Shady Push To Boost McAuliffe
By Matthew Foldi
A Republican senator is probing Virginia’s public utility Dominion Energy for more information on its massive spending aimed at suppressing the vote for Republican gubernatorial candidate Glenn Youngkin.
Sen. Tom Cotton (R., Ark.), in a letter to Dominion chief executive officer Robert Blue, asked the company to disclose whether Democratic gubernatorial candidate Terry McAuliffe was aware of the $250,000 it spent on his behalf, and whether anything was promised in return for the spending blitz. The cash from Dominion, which is the only option for most Virginia residents, was used on an ad campaign to convince likely Republican voters to stay home because Youngkin wasn’t strong enough on the Second Amendment, according to a report from Axios…
Dominion apologized after the spending effort was revealed by Axios and said it asked Accountability Virginia PAC, the liberal group that sent the mailers for Dominion, for a refund.
The public utility has received harsh criticism from Virginians for its monopoly over energy in the commonwealth. McAuliffe, in fact, has disavowed the energy giant and said his campaign won’t accept its donations. Dominion’s political team worked around the ban by funding Accountability Virginia PAC’s voter suppression project instead.
FEC
Axios: Scoop: FEC lets foreigners finance U.S. ballot fights
By Lachlan Markay
The Federal Election Commission has ruled foreign donors can finance U.S. referendum campaigns, opening the door to foreign spending on fights over high-profile policy issues, Axios has learned.
Foreign nationals are barred from donating to U.S. political candidates or committees. But the FEC’s decision — allowing them to support ballot committees — provides another avenue for foreigners to directly influence U.S. voters and domestic policy.
A major question stemming from the decision is whether foreign nationals are now permitted to spend money to influence the actual mechanisms of the U.S. democratic process…
The decision only concerns federal law; states remain free to outlaw foreign funding for state-registered ballot committees…
In a 4-2 vote in July, the FEC ruled ballot initiatives are not “elections” under existing federal law, and therefore the foreign donation prohibition doesn’t apply.
Two sources familiar with the decision told Axios that FEC chair Shana Broussard, a Democrat, voted with the panel’s three Republicans to dismiss the underlying complaint. It alleged illicit foreign funding for a ballot committee in Montana…
“This FEC decision reflects a big loophole in the federal ban on foreign money in U.S. elections,” said Brendan Fischer, the director of federal and FEC reforms at the Campaign Legal Center.
The Trace: Federal judge greenlights private suit against the NRA over allegations it violated election law.
Last month, Judge Emmet Sullivan of the U.S. District Court for D.C. ruled that the Federal Election Commission must determine within 30 days whether the gun group illegally used a network of shell companies to coordinate spending with the campaigns of former President Donald Trump and other Republican candidates. The ruling stems from a suit that the Campaign Legal Center and Giffords Law Center to Prevent Gun Violence brought against the FEC for failing to take action on four complaints Giffords submitted alleging that the NRA violated the Federal Election Campaign Act. The FEC complaints were spurred by our reporting laying out evidence that the NRA and its vendors used apparent shell companies to evade rules prohibiting coordination between outside groups and the campaigns they support. Yesterday, Sullivan ruled that as a result of the FEC’s failure to act on his order, the plaintiffs’ could launch a civil campaign finance suit directly against the NRA “to remedy the violations involved in the original complaints.”
[Ed. note: Read the Statement of Vice Chair Allen Dickerson Concerning Giffords v. FEC, No. 19-1192 (D.D.C.) here.]
Independent Groups
Roll Call: A year out, political groups prepare for what could be the most expensive midterms ever
By Kate Ackley
Next year’s midterm elections, which will determine control of the House and Senate for the second half of President Joe Biden’s first term, are on pace to shatter previous records, thanks largely to big-money outside groups.
Super PACs — more than a decade old, with an infrastructure and stream of donors to rival the political parties — and other outside organizations already have begun to invest heavily to influence the outcome of the 2022 elections.
“Outside groups are enormously important vehicles, especially in competitive races,” said Sheila Krumholz, executive director of OpenSecrets, which tracks political spending. “They can afford to drop huge sums of money.” …
They pay higher rates for advertising than candidates do and are prohibited from directly coordinating with a candidate, but they don’t face any such restrictions in operating jointly with other outside groups — and many do.
“There’s no prohibition on outside groups consulting with one another on their political plans and advertising strategy. You could have one, five, 10 super PACs, split up the country, split up the races, and they can decide amongst themselves who’s going to take the lead, what types of political messaging they’ll do,” said Michael Toner, a former chairman of the Federal Election Commission, who runs the political law practice at the Wiley firm. “They’re trying to maximize the effectiveness of their aggregate spend.”
Fundraising
Washington Post: Trump looks to 2024, commanding a fundraising juggernaut, as he skirts social media bans
By Michael Scherer and Josh Dawsey
Facebook has banned former president Donald Trump from posting on its platform, and he is barred by law from using his current fundraising to finance another campaign for the White House.
But Trump has found a way around both barriers as he rebuilds his political operation to clear the way for a potential 2024 presidential campaign.
His primary political action committee, Save America, has been spending more than $100,000 a week this month on Facebook ads, according to the company, many of which seek donations with deceptive claims about corruption in the last election and public support for the belief that “Trump is the true president.”
Facebook allows the ads because Trump is not posting them personally through his suspended account and the ads do not speak in Trump’s “voice,” according to a company spokeswoman. The money raised can be used to finance his current political operation — his staff, his rallies, his travel — until he announces another campaign. At that point, he would have to start fresh with a new account, but with a significant advantage: Advisers may rent back the updated list of donors that Save America has collected to give him a head start. And advisers say he could transfer the money to another outside group that buttresses his bid.
The States
CommonWealth Magazine: With union loophole closed, super PACs on rise
By Paul D. Craney
The union loophole had its origins in a footnote to an advisory opinion written by a bureaucrat at the Massachusetts Office of Campaign and Political Finance. The footnote had as much legal standing as a gentleman’s agreement, but it permitted unions to donate up to $15,000 to candidates, while individuals were limited to $1,000 and PACs to $500. Corporations were prohibited from donating anything at all.
The unfair campaign finance limits no longer exist because Massachusetts Fiscal Alliance applied legal, political, and public pressure on the previous director of the Office of Campaign and Political Finance to eliminate the union loophole in May 2019. MassFiscal challenged the union loophole in court and even petitioned the Supreme Court of the United States to right this wrong. In May 2019, while the petition was before the Supreme Court of the United States, the former director at OCPF eventually eliminated this unfair advantage.
On Election Day, [Boston mayoral candidates] can rest assured that out-of-state unions are not tipping the scale through the union loophole. Super PACs treat unions, individuals, and corporations the same, which means Wu and George have the same advantages.
Indianapolis Star: Why Attorney General Todd Rokita blocked a political writer from a press conference
By Kaitlin Lange
Attorney General Todd Rokita isn’t backing down from his office’s decision to prohibit Abdul-Hakim Shabazz, an Indiana political writer and commentator, from attending a press conference last month, even as Shabazz has begun talking to an attorney.
A spokesman for Rokita’s office said the Oct. 14 press conference was meant for “actual journalists.”
In a post on his political news blog IndyPolitics.Org, Shabazz said he was told by a spokesperson that he could not enter the attorney general’s office for the press conference on a robocall lawsuit because he was not “credentialed media.”
