In the News
Social Science Research Network: The Academy, Campaign Finance, and Free Speech under Fire
By Bradley A. Smith
This short essay, part of a symposium on “Free Speech Under Fire” at Brooklyn Law School, argues that academic efforts to fit campaign finance restrictions within the rubric of the First Amendment have distorted First Amendment doctrine, and contributed to a decline in respect for free speech generally. The essay briefly reviews and critiques recent scholarship by Robert Post (“Citizens Divided”), Richard Hasen (“Plutocrats United”), Larry Lessig, and Zephyr Teachout.
Free Speech
The Federalist: Why Campaign Finance Rules Make Free Speech Expensive For The Little Guy
By Dan Backer
Unfortunately, an incoherent, oft-unconstitutional mish-mosh of laws have made engaging in political speech stunningly complex and burdensome. You cannot meaningfully engage in any political activity or speech without paying for legal and compliance services to navigate the regulatory forest artificially placed between you and the public. If this strikes you as entirely unfair to new speakers and hugely beneficial to entrenched incumbents with near-limitless access to money to hire the few attorneys who practice in this arcane, esoteric field, you’re right.
After paying to create a persuasive political message, the ability to communicate it through one or more means, access to the audiences you will deliver it to, and the lawyers to ensure you comply with the absurdity of ever-changing laws restraining free speech, you now have an interesting problem: All that free-speech suddenly costs a lot of money.
Supreme Court
Daily Caller: Justice Alito Warns Of Dire Future For Speech, Religious Liberty
By Kevin Daley
Alito delivered the opening address at a conference of judicial conservatives and libertarians Thursday. He made the remarks in Washington in connection with a memoriam address honoring the late Justice Antonin Scalia at the Federalist Society’s annual lawyers convention.
The justice began his parenthetical by noting the growing chasm on free speech issues, particularly on college campuses and in the campaign finance area. He singled out the “new orthodoxy” in the American academy, and wondered aloud how college students or faculty would react to a peer wearing a piece of apparel declaring America “a great and good nation,” in what appeared to be a veiled reference to President-elect Donald Trump’s campaign slogan, “Make America Great Again.”
He also called out a constitutional amendment supported by Senate Democrats which would allow Congress and state legislatures to place “reasonable” limits on campaign spending.
Washington Post: Alito’s guideline on issues of Americans’ liberties: ‘What would Scalia do?’
By Robert Barnes
Justice Samuel A. Alito Jr. on Thursday said free speech and religious liberty hang in the balance at the Supreme Court and warned of other issues along the “constitutional fault lines” that might confront the divided justices…
Likewise, Alito said he was alarmed that more than 40 senators were willing to amend the Constitution to overturn the court’s ruling inCitizens United v. FEC, which held that restrictions on corporate and union political spending violated free-speech rights.“What would that amendment do?” Alito said. “It would have the effect of granting greater free-speech rights to an elite group – those who control the media – than to everybody else.”
The Media
Reason: This Professor’s List of “Fake News” Sites Goes Predictably Wrong
By Scott Shackford
Zimdars, a communications professor at Merrimaack College in Massachusetts, put together a list of what she calls “False, Misleading, Clickbait-y, and/or Satirical ‘News’ Sources.'”
Only two of those modifiers suggest actual faked news-“false” and “satirical.” The other two words are judgment calls that we make ourselves as readers. Nevertheless, reporting is describing Zimdars’ work as a list of “fake news” sites…
It includes not just fake or parody sites; it includes sites with heavily ideological slants like Breitbart, LewRockwell.com, Liberty Unyielding, and Red State. These are not “fake news” sites. They are blogs that-much like Reason-have a mix of opinion and news content designed to advance a particular point of view…
So what happens if Facebook staff were to look at Zimdars’ list and accept it and decide to censor the sharing of headlines from these sites? It’s within Facebook’s power and right to do so, but it would be a terrible decision on their end. They wouldn’t just be preventing the spreading of factually incorrect, fabricated stories. They would be blocking a lot of opinionated analysis from sites on the basis of their ideologies.
Trump Administration
USA Today: Critics: Donald Trump’s tough lobbying rule could slow hiring
By Fredreka Schouten
President-elect Donald Trump’s decision to ban state and federal lobbyists from his administration drew criticism Thursday from ethics watchdogs and lobbyists alike.
Watchdogs argue the rule ignores the biggest ethics challenge his new administration faces: the towering financial conflicts of interest posed byTrump’s own far-flung business holdings. Lobbyists, meanwhile, say Trump’s post-employment lobbying ban could cripple his ability to fill thousands of open jobs in the federal government…
Paul Miller, a small-business lobbyist in Washington who is president of the National Institute for Lobbying & Ethics, said the ban unfairly tars his industry and will “have a chilling effect on somebody who wants to work for the government.”…
Miller predicted that Trump’s hires will get around the tough five-year ban by masking themselves as consultants once they leave the government. “You are just going to create a secret society of people not registering” as lobbyists, he said.
Washington Post: If Trump wants to close lobbying loopholes, ethics lawyers have written a proposal to do just that
By Catherine Ho
Officials with President-elect Donald Trump’s transition team met with ethics experts who presented them with a draft executive order that would expand on President Obama’s restrictions on lobbyists working in the executive branch…
“If Donald Trump is serious about closing the loopholes that allow unregistered lobbyists to have undue influence, he can do that with one stroke of the pen with this executive order,” said Norm Eisen, the former Obama White House “ethics czar” who helped draft the proposed executive order along with Richard Painter, an ethics lawyer who worked in the George W. Bush administration, and several people working for good government groups, such as the Project on Government Oversight (POGO) and Public Citizen.
Candidates and Campaigns
U.S. News & World Report: Underestimating the Unconventional
By Susan Milligan
Paradoxically for a Democratic Party wringing its hands over the Citizens United Supreme Court decision drastically loosening rules for big-money contributions, it was the lesser-funded candidate who won the presidential election.
Michael Malbin, executive director of the Campaign Finance Institute, warns that Trump’s financial underdog victory does not mean that money doesn’t matter in campaigns. Trump’s fame as a real estate developer and reality TV star gave him an unusual early advantage – and the fact that his rallies were covered start to finish on live TV didn’t hurt either, he adds.
“Money is useful for buying something. It will not get you votes directly,” Malbin says. For example, “you spend for ads; you spend for communication. [But] during the primaries, Trump got lots of free communication. He didn’t raise money for that,” Malbin notes. “I don’t know if any other candidate will ever be able to do that again.”
The Hill: Blue-collar voters launch hand grenade into Washington
By Former Reps. Tim Roemer (D-Ind.) and Zach Wamp (R-Tenn.)
This post-Citizens United election was the most expensive yet – costing upwards of $7 billion – and special interest groups spent hundreds of millions of dollars to affect the outcome of congressional races, often dwarfing the candidates’ own campaigns.
Americans heard throughout the campaign from Bernie Sanders that Wall Street had engaged in a pay-to-play process that has hijacked the legislative agenda at the expense of blue-collar workers. Trump claimed to have bought politicians running for office based on giving them contributions for their campaigns and concluded that the system is rigged…
America needs a new jurisprudence and a reversal of past Supreme Court decisions such as “Buckley” and “Citizens United.”
President-elect Trump has promised to “drain the swamp” in Washington. He has an opportunity to reward his voters with actual legislative action or he can leave the alligators in the swamp and wait for the next election.
The States
Argus Leader: Experts questioned constitutionality of ballot measure before it went to voters
By Jonathan Ellis
Initiated Measure 22 included a section that created a so-called Democracy Credit program, in which voters can dedicate two $50 vouchers to political candidates who choose to participate in the public funding program. The section specifically appropriates money – starting at $9 per registered voter and increasing by inflation each year – to fund the program.
But an analyst with the Legislative Research Council who reviewed the proposed language in 2015 made a handwritten note next to the section that the language appeared to violate the South Dakota Constitution. At issue is a requirement that all appropriations must be passed by the Legislature with a two-thirds majority in both the House and Senate.
Despite the warning, the language was not changed. The measure got enough signatures to qualify for the ballot and narrowly passed last week, surprising proponents and opponents alike, despite a warning from Attorney General Marty Jackley on his explanation that, “If approved, the measure may be challenged in court on constitutional grounds.”
Albuquerque Journal: More disclosure of spending in political campaigns needed
By Viki Harrison
For the past several years, Common Cause has supported a bill in the New Mexico Legislature to update our Campaign Reporting Act by restoring the enforceability of the act and adapting it to modern methods of campaigning. Since the act was enacted, the courts have developed an extensive body of restrictions on the authority of governments to regulate campaign speech.
Under these rules, several key provisions of the act have recently been invalidated by the courts, including most of its reporting requirement for PACs and other independent groups. The bill would amend the Campaign Reporting Act to conform to current constitutional rules…
Now is the time for a bill that will require disclosure of donors who contribute anonymously to some of these “independent” spenders and the targets of their expenditures. And these unleashed groups should be held accountable when they conspire with candidates to influence voters. We are hopeful that this year, the bill will finally pass.
Washington Times: D.C. Council eyes limits on PAC fundraising in nonelection years
By Ryan M. McDermott
Campaign finance reform crusaders on Wednesday lauded a D.C. Council measure that would forbid political action committees from raising unlimited funds in nonelection years and ban businesses from donating to candidates who could influence their contracts with the city.
The “Campaign Finance Transparency and Accountability Amendment Act of 2016” is part of a bevy of bills aimed at increasing the political distance between candidates and businesses in the District.
It was introduced at the behest of D.C. Attorney General Karl Racine and is making its way through the council’s Judiciary Committee…
The Judiciary Committee is considering five bills that address reforming how elections are financed. Issues include public financing and restricting big money donations. The Racine bill is the most comprehensive of the bunch, mirroring aspects of other bills to create an omnibus reform package.
Maine Sun Journal: Maine Ethics Commission proposes new campaign finance rules
By Christopher Cousins
The Maine Ethics Commission has introduced a slate of new campaign finance rules that future candidates would have to follow if they win legislative approval.
Some of the new rules, according to Jonathan Wayne, the ethics commission’s executive director, are the result of a 2015 referendum that was initiated by citizen petition. Other rules are being suggested by the commission in response to issues that have come up in the course of policing campaign finance laws…
The commission will hold a public hearing on these rules Dec. 8 at its headquarters in Augusta.
Buffalo News: Cuomo acts to reduce conflicts of interest in state contracts
By Tom Precious
Gov. Andrew Cuomo on Wednesday said he is taking a number of unilateral steps designed to reduce potential conflicts of interests and fraud in the annual awarding of billions of dollars in state contracts.
The governor’s actions come as indictments are due to be handed down any day now in an ongoing federal corruption case brought by U.S. Attorney Preet Bharara in a probe that spread across the state after commencing with allegations over the awarding of the largest Buffalo Billion project.
The governor said he will order his campaign and the Democratic Party to refuse contributions from companies once a request for proposal for a state contract has been announced “and for six months following the conclusion for the winner,” he said in a statement Wednesday afternoon…
He also again called for public financing of campaigns; the governor has amassed a campaign war chest topping $19 million as of the most recent public disclosure filing in July.
