In the News
By Kevin Breuninger and Dan Mangan
Bradley Smith, a Republican former chairman of the Federal Election Commission, said in an email that the payments to Daniels could not be considered campaign payments “any more than a candidate paying for trash pick-up at his house, lest the shabby appearance of his yard lead to unflattering news stories.”
As for the National Enquirer, Smith, who is the founder of the Virginia-based Institute for Free Speech, said that the outlet appears to be operating within an exemption for the media. He said the Enquirer’s role in shielding Trump from harmful stories may be a violation of journalistic ethics, but not of election law.
“Magazines, papers, and broadcast entities regularly confer with candidates about what stories to run or not to run, or the candidate’s desired take, and sometimes yield to the candidate’s arguments or pleas,” he said. “My purpose is not to say that is good, bad, justified, or unjustified, just that it is so.”
Washington Examiner: You might get harassed like Tucker Carlson for giving to a cause you believe in
By Eric Peterson
A group of 20 or so protesters showed up outside the home of Fox News host Tucker Carlson. They began pounding on the front door, yelling through a bullhorn, and chanting, “Tucker Carlson, we will fight! We know where you sleep at night!” …
It was only a few weeks ago when a deranged individual mailed pipe bombs to CNN, George Soros, and other prominent left-leaning targets…
This kind of harassment demonstrates the need to protect the privacy of Americans who support political causes. A targeted effort may make it possible to track down public figures like Carlson. Unfortunately, it is far easier to track down average Americans who donate to candidates, parties, and political committees. Many politicians want to also invade the privacy of those who give to advocacy groups or even charities.
These government officials are surprisingly comfortable exposing Americans’ private information and political beliefs and then letting the chips fall where they may. Senate Minority Leader Chuck Schumer, D-N.Y., suggested he likes the idea of silencing those who want to speak. As he put it, favorably, the deterrent effect of such laws “should not be underestimated.”
Legislation has been introduced at both the federal and state level to require those donating to certain nonprofit organizations to be listed in a government database along with their address, phone number, and a variety of other personal information. This information would be publicly available on a government website, where activist groups of all stripes (and temperaments) would have instant access to it…
Americans have good reason to want to protect their privacy. The government should not be exposing them to more danger.
New from the Institute for Free Speech
Money Doesn’t Buy Elections, “Dark Money” Keeps Falling, and Other Lessons from the 2018 Midterms
By Scott Blackburn
While fears about so-called “dark money” continue to rise, “dark money” spending itself has declined. The pejorative term “dark money” refers to campaign spending by organizations that aren’t forced to report all of their donors to the FEC, but that are required to publicly report a great deal about their spending information and activities.
So-called “dark money” accounted for just over $139.2 million in 2018 (as of November 8). That will account for somewhere between 2.6% and 2.9% of total campaign spending for the cycle. This is down in both nominal dollars and as a percentage of total spending from the last midterm election in 2014. That year, roughly $178 million, or 4.6% of total spending, was “dark money.” Despite higher spending overall, $40 million fewer dollars were spent by nonprofit groups in 2018. This decline follows a similar drop in “dark money” in the 2016 election cycle…
One of the key reasons Democrats were able to retake the House this year was their ability to compete in many districts with Republican incumbents. For some of the most expensive districts in the country, this was only possible because of super PACs…
Nearly all of the top twenty districts for outside spending were particularly expensive media markets, where more spending is needed to reach voters. Seven were in California, four were in the tri-state area around New York City, and seven more were in suburbs of Seattle, Houston, Dallas, Denver, Philadelphia, Miami, and Washington, D.C.
But while super PACs assisted in getting the message out in these races and increasing their competitiveness, the spending could not guarantee victory.
Congress
Washington Post: An aggressive agenda for a Democratic House
By Helaine Olen
In a newly released memo, the left-leaning think tank Center for American Progress (CAP) lays out an aggressive and ambitious agenda for how Democrats should legislate over the next two years…
Undergirding the memo is the issue of campaign finance reform. The reason is basic: The money swashing through Washington is at the heart of how the system gets corrupted, a point Elizabeth Warren made this summer, when she debuted her own ambitious plan to combat Washington and corporate corruption. It’s an issue that clearly resonates with voters – numerous candidates this past election cycle made it a central part of their platform to eschew corporate PAC donations. (And yet, as The Post reported this week, Democrats raised more than three times as much money from small-dollar donations as their Republican rivals.) “People are not wrong to be cynical or suspicious that Washington doesn’t work for people. The system in Washington has become one of legalized bribery,” said Tanden. “People are looking at a system in which the voices of donors and special interests are louder than their own.”
The CAP plan takes aim at lobbying, demanding that lobbyists choose between raising money or influencing policy, but not both. They should not be able to organize fundraisers designed to raise money for politicians, or raising money for other nonprofit organizations controlled by politicians. They would be limited to their own donations – that is, $2,700 per candidate. But perhaps even more important, members of Congress should be forbidden from accepting money from entities that do business with the committees they sit on. As the memo puts it, “if a member sits on the Financial Services Committee, he or she should be prohibited from receiving contributions from big banks.”
The Atlantic: Nancy Pelosi Keeps Baseball Bats in Her Office
By Steve Israel
In the 2018 cycle, the DCCC raised approximately $270 million. Pelosi personally raised nearly half of that total: $129 million. Much of that money came from donors who believe in Pelosi and in her ability to lead. Heading into 2020, when House Democrats will need to protect their gains, they’ll want a proven rainmaker. Conversely, Pelosi has the strategic and tactical legislative skills necessary to pass some version of campaign-finance reform, which would reduce the role of money in politics.
The question for Pelosi’s critics is: Does anyone else even have a shot at bringing money in and stanching the need for money at the same time?
The Hill: Voters are hungry for reform: Congress must deliver
By Wendy Weiser and Daniel Weiner
Before Tuesday, Democratic leadership in the House promised to take up a comprehensive democracy reform package “in the very first days” of the new Congress. As the midterm results make clear, voters will demand that they make good on their promise.
What should be in it? …
Campaign finance reforms to address the legacy of Citizens United must also be high on the next Congress’ agenda…
Super PACs and dark money groups spent almost $1 billion on federal races in this cycle, mostly raised from a tiny class of mega-donors. The best way to address this challenge is to lift up other voices through small-donor public financing – where public funds supplement and amplify private giving.
Stronger disclosure rules so that the public can at least know who is trying to influence them (and so that the government can detect illegal campaign spending by foreign governments and nationals) are also essential.
Fundraising
Wall Street Journal: The Democrats’ Cash Tsunami
By Editorial Board
Nancy Pelosi pledged Tuesday night that the new Democratic House will deliver campaign-finance reform to “drain the swamp of dark-interest money in our elections.” …
Democratic House candidates this cycle raised $951 million as of Oct. 17, the most recent reporting cutoff, according to figures from OpenSecrets.org. That’s nearly 50% more than Republicans. Forty-five percent of donations to these Democratic campaigns came from out of state, compared with 34% for the GOP…
What about outside spending? Republicans got trounced there, too…
Fundraising for Senate candidates tilted left as well. Democrats raised $513 million, 40% more than Republicans. Sixty percent of Democratic donations came from out of state, compared with 49% for the GOP. The cash deluge helped Democratic heartthrob Beto O’Rourke make even Texas competitive. He lost by only 2.6 points, after raising $69 million to Senator Ted Cruz’s $40 million. In Missouri and North Dakota the Democrats spent more but failed to sway GOP electorates…
Although liberals often decry “money in politics,” they don’t mind taking whatever donations are needed to win. Not that there’s anything wrong with that: Donald Trump’s Presidency has energized Democrats, and it figures that excitement translates into fundraising. This is how American democracy works, as candidates hustle for voters-and donors-while they try to get their messages across.
Creating more federal rules to govern political speech would increase the advantages of incumbents and the liberals who dominate national and local media. As Mrs. Pelosi’s party celebrates its defeat of two dozen Republican incumbents on Tuesday, Americans should ignore what she says about money and watch what Democrats raise and spend.
Independent Groups
The Hill: Setting caps on political spending strikes at the heart of free speech
By John York
Super PACs are simply associations of individuals who think alike and want to engage in political speech independent of candidates and political parties.
Those seeking to quash them ignore the clear connection between the freedom of speech and the freedom to reach an audience, which in the modern media world costs money. This also rests on the misguided assumption that political speech funded by one set of corporations and individuals (the ones who donate to super PACs) is perverse while political speech funded by another set of corporations and individuals (the ones who own television stations and newspapers) is fine…
When Congress banned labor union contributions in the 1940s, the AFLCIO found a clever workaround. It created an electioneering fund, which was the original political action committee, to which members could contribute. Since money from this fund was not coming directly from the union coffers, it could be freely donated to candidates.
Similarly, when Congress capped campaign contributions to political parties for the advocacy of its candidates, national committees began collecting millions in “soft money” not expressly earmarked for the advocacy of their candidates. When Congress closed the soft money loophole in 2002, national committees took a different route and now direct wealthy donors to give to local and state committees since there are no limits on the amount one committee can transfer to another.
If history is any guide, as wealthy individuals and corporations funnel money into news stations rather than super PACs, it will ignite another round of the arms race between regulators and regulated. The Federal Election Commission would surely take it upon itself to distinguish between legitimate and illegitimate news sources, and between real and fake news. In other words, it would essentially become a censor.
Harvard Law Review Blog: Super PACs and the Market for Data
By Michael D. Gilbert and Samir Sheth
The law allows super PACs to sell their information to campaigns, as long as campaigns pay the “usual and normal charge.” The “usual and normal charge” is the “price of those goods in the market from which they ordinarily would have been purchased.” …
Suppose a super PAC agrees to sell data to a candidate for $100,000. If a for-profit, politically neutral firm would sell the same data to the same candidate for the same amount, then we might reason that $100,000 is the market price, so the super PAC’s sale should be permissible. But not so fast. A for-profit firm would pocket the $100,000, but the super PAC will not. It will take that $100,000 and spend it to support the candidate. Supporting the candidate, after all, is the super PAC’s purpose. Suppose the super PAC has good information about the campaign’s needs and strategies. Consequently, the super PAC can spend the $100,000 just as effectively as the campaign. Suddenly the transaction doesn’t look like a market value exchange. The super PAC didn’t give data to get $100,000. It gave data, got $100,000-and then essentially gave the $100,000 back. The data sale that the law permits is indistinguishable from a contribution that the law forbids…
The rabbit hole continues to descend. Instead of selling data for money, super PACs and campaigns can trade data for data. The FEC allows candidates, parties, and super PACs to swap voter information so long as the databases are of “equal value.” The FEC has not provided clear guidance on how to ensure that this requirement is satisfied…
Without better regulation, data sales and exchanges erode the reasoning at the heart of Citizen’s United, that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.”
The Courts
Washington Post: What does an elected official in Virginia have to do with whether President Trump can block people on Twitter? A lot.
By Ann E. Marimow
[Phyllis J.] Randall, a Democrat and the first African American woman elected to lead a county board of supervisors in Virginia, has little in common with the president. She has criticized Trump as “the school bully we warn our children about” and “not fit for office.” But both elected officials have been sued for silencing critics on social media. In separate court filings, they contend their accounts on privately owned digital platforms are personal and that they can restrict who gets a chance to speak there…
The case against Trump is in early stages at the federal appeals court in New York, where he is represented by the Justice Department…
[F]ree-speech advocates behind the two lawsuits say blocking critical comments or followers is the equivalent of an elected official closing the door on constituents at a public meeting.
“You don’t want public officials picking and choosing who is allowed to speak,” said attorney Katherine Fallow of the Knight First Amendment Institute at Columbia University, who is handling the cases in Virginia and New York…
District Court judges in Virginia and New York ruled against Randall and the president, saying their actions violated the First Amendment…
[Randall] refers to the case at the U.S. Court of Appeals for the 4th Circuit as “an enormous nightmare” and is deeply conflicted about her role and its implications, not just for her legacy but because of what a decision could mean for Trump and what she sees as his more sweeping blocks…
No matter the outcome, the court recognized its significant role in taking the first crack at resolving the issue.
“You’ve got to me, wow, a blockbuster case right in front of you,” [Judge James A. Wynn Jr.] said during oral argument. “This thing reverberates.”
The panel could rule at any time. Oral argument in the president’s appeal in New York expected this winter.
The Media
Politico: Trump warns he could pull other reporters’ White House access
By Rebecca Morin
President Donald Trump said Friday he does not know whether CNN White House correspondent Jim Acosta’s press access will be reinstated and said other reporters could have their security badges revoked too.
“As far as I’m concerned, I haven’t made that decision,” Trump said of restoring Acosta’s press pass. “But there could be others also.”
The White House yanked Acosta’s “hard pass,” a security badge that allows reporters to freely enter and exit the White House complex, following a contentious exchange with Trump during a press conference Wednesday…
Sanders said Acosta’s press access was being revoked because of an interaction with a White House aide who tried to take his microphone when the reporter talked over the president…
Trump seemed to indicate, however, that the security badge was not pulled solely over that incident, which he said “wasn’t overly, you know, horrible.”
“I think Jim Acosta’s a very unprofessional man,” the president said. “Look, I don’t think he’s a smart person, but he’s got a loud voice.”
Candidates and Campaigns
Wall Street Journal: Donald Trump Played Central Role in Hush Payoffs to Stormy Daniels and Karen McDougal
By Joe Palazzolo, Nicole Hong, Michael Rothfeld, Rebecca Davis O’Brien and Rebecca Ballhaus
Mr. Trump’s involvement in the payments, by itself, wouldn’t mean he is guilty of federal crimes, according to Richard Hasen, a law professor at University of California, Irvine, who specializes in election law. A criminal conviction would require proof Mr. Trump willfully skirted legal prohibitions on contributions from companies or from individuals in excess of $2,700, he said…
Mr. Pecker researched campaign-finance laws before entering into the McDougal deal. The question was: Would American Media’s payment amount to an illegal campaign contribution to Mr. Trump? Corporations are barred under federal law from giving directly to candidates, either in cash or in-kind contributions.
After speaking with an election-law specialist, Mr. Pecker concluded the company’s payment to Ms. McDougal wouldn’t violate the law, because the magazine covers and health columns gave him a business justification for the deal…
Mr. Pecker called off the Trump-reimbursement deal in October 2016 on the advice of his lawyer. Accepting reimbursement from Mr. Trump, the executive worried, could undermine any argument that the McDougal payment was made for editorial and business reasons, rather than as an in-kind campaign contribution…
Mr. Cohen asked American Media to buy Ms. Clifford’s story. Mr. Pecker refused…
Out of options and time, Mr. Cohen decided to cover the payment himself…
Had he just paid the ex-adult film star himself, Mr. Trump would have been out of pocket $130,000. Instead, Mr. Weisselberg authorized a reimbursement of twice that much, characterized in Mr. Trump’s records as legal fees, to cover the income tax hit Mr. Cohen would take. He also added a $60,000 bonus. Mr. Cohen received the money in monthly installments of $35,000.
The States
Washington Times: The Latest: Pritzker promises campaign finance reform
By Associated Press
Gov.-elect J.B. Pritzker says voters trust him to clean up government, end conflicts of interest and reform campaign finance laws.
The Democrat spoke to The Associated Press Wednesday. He was fresh off a Tuesday victory over Republican Gov. Bruce Rauner. He says voters didn’t trust Rauner to rid government of corruption. Rauner routinely demonized Pritzker and powerful House Speaker Michael Madigan of Chicago as corrupt dealmakers.
Pritzker spent $171 million of his own money to get elected. He says he will take a comprehensive look at reforming campaign finance laws. That will include considering public financing – an idea floated by Sen. Daniel Biss in the Democratic primary for governor.
Portland Mercury: City Council Race Shows Impact-and Limits-Of City’s New Campaign Finance Rules
By Blair Stenvick
In the final days of her campaign for Portland city commissioner, Loretta Smith received two donations worth $20,000 each. One was from the Keep Portland Safe, the police union’s political action committee (PAC). The other was from the Equitable Housing PAC, a landlord lobbying group.
Smith lost to her opponent, Jo Ann Hardesty, despite out-fundraising her by an almost two-to-one margin. As Portland voters chose Hardesty, seen as the more independent, progressive candidate, they also voted to reform campaign finance law, passing Measure 26-200…
The folks behind Measure 26-200 say that if their $500 individual donation limits had been in place during this election cycle, the script in the Smith-Hardesty race would have been flipped. Because a large amount of Smith’s individual donations were in excess of $500, her fundraising would have been limited to about $100,000, rather than the $700,000 she did raise.
The measure’s rules would have had a much smaller impact on Hardesty, who relied more on small individual contributions. Her roughly $300,000 in campaign contributions would have been reduced to about $230,000…
The Measure 26-200 team also was behind a similar measure limiting campaign finance at the county level, passed by Multnomah County voters in 2016. The constitutionality of that measure is currently being debated in court, but Kafoury said he intends to continue to push campaign finance reform around the state.
