In the News
National Review: PACs Represent People, Too
By Bradley A. Smith
[E]ach part of Ocasio-Cortez’s scenario misstates either the law or the facts of campaign finance. Let’s unpack it, point by point.
In theory, it is true that a candidate could fund a campaign entirely with corporate PAC money. But PACs have existed for 75 years. To my knowledge, no campaign has ever been funded entirely with PAC money…
But what if a candidate were funded solely by them?
Such funding is, by definition, not “dark money.” By law, candidates and PACs alike must publicly disclose all donors whose aggregate contributions exceed $200…
As authority for her next point, that a candidate could use campaign funds for “hush money” and to “pay people off,” Ocasio-Cortez cited a column I published last year in the Washington Post. Unfortunately, she got the column backwards – I argued that campaign funds may not be used for such purposes. As I wrote then, “hush-money payments to mistresses are not really campaign expenditures. . . . These may not be paid with campaign funds, even though the candidate might benefit from the expenditure.”
That takes us to the last point – Ocasio-Cortez’s claim that her hypothetical bad guy could use his power in Congress to reward “special interests.” In particular, she singled out “fossil fuels,” “health care,” and “pharma.”
It’s no revelation that bad guys who win elections can use their power to do bad things. But where does Ocasio-Cortez’s approach leave the “good guys”? To prevent members of Congress from rewarding special interests, we would have to prohibit them from writing or voting on any legislation that affects their donors. Candidates supported by unions would be prevented from voting on labor laws. Candidates supported by environmental groups would be prevented from voting for Ocasio-Cortez’s “Green New Deal.” What kind of democracy is that?
The Chad Adams Show: Monday, February 11th, 2019
Guest hosted by Donald Bryson, President of the Civitas Institute
This show aired on Monday, February 11th, 2019 across the state of North Carolina.
[Ed. Note: IFS Senior Policy Analyst Eric Peterson joins the show to discuss H.R. 1 (beginning at 01:12:40)]
New from the Institute for Free Speech
H.R. 1 Would Undo Watergate-Era Protections Against Government Interference in Election Campaigns
By David Keating
Ed. Note: This is the fourth in a series of posts examining the speech-limiting effects and record of failure of taxpayer-financed campaign programs, specific to provisions included in H.R. 1. Part I is available here, part II is available here, and part III is available here.
Tax-financing will increase the risk that partisan bias or outright favoritism from those in power will determine electoral results.
Under the status quo, there are already concerns about how investigative agencies influence the vote. For example, Hillary Clinton blamed then-FBI Director James Comey for her 2016 loss to President Trump because of his release of a letter re-opening the FBI’s probe into her e-mails in the lead-up to the election. The passage of H.R. 1 would allow federal agencies to inflict more than just a bad news cycle on candidates; it might also have the power to single-handedly grant a candidate a massive cash advantage.
Those on the left and right have accused opponents of politicizing law enforcement when they were in power. Imagine what would happen if some future president politicized a tax-financing system. By appointing partisan allies or exerting pressure on the agency administering the program, a president could spur nationwide investigations of opponents, fishing for an excuse to punish them. Campaigns receive thousands of donations, so minor errors are commonplace. If a hostile agency found one, it could justify fines or perhaps delay releasing the tax-financing funds while a lengthy audit and investigation is completed. Such a delay could cripple a campaign. Keep in mind that the tax-financing subsidy would represent over 83% of the total fundraising for a campaign run on contributions of $200 or less. Losing so much funding would be a fatal blow to nearly any campaign, not to mention the bad publicity from the FEC’s investigation.
Congress
Committee on House Administration: Hearing: For the People: Our American Democracy
On Thursday, February 14, 2019 the Committee on House Administration will hold a hearing entitled “For the People: Our American Democracy.” The Committee will meet at 8:30 AM in Room 1310 of the Longworth House Office Building.
Witnesses:
Panel 1:
Chiraag Bains, Director of Legal Strategies, Demos
Wendy Weiser, Director, Democracy Program, Brennan Center for Justice at NYU School of Law
Fred Wertheimer, President, Democracy 21
The Honorable Kim Wyman, Secretary of State, State of Washington
Panel 2:
Alejandro Rangel-Lopez, Senior at Dodge City High School, Dodge City Kansas, and plaintiff in LULAC & Rangel-Lopez v. Cox
Peter Earle, Wisconsin Civil Rights Trial Lawyer
Brandon A. Jessup, Data Science and Information Systems Professional; Executive Director, Michigan Forward
David Keating, President, Institute for Free Speech
Office of U.S. Senate Majority Leader Mitch McConnell: Democrat Politician Protection Act Would Turn Bipartisan FEC Into a Partisan Weapon
“The newly-partisan FEC would be handed the ability to determine what kind of speech is, quote, ‘campaign-related’ — growing its jurisdiction and widening its bureaucratic wingspan over more of the public discourse, including issues of the day and not just elections.
“So, private citizens, for example would be required to make the government aware of times they spend even small amounts of money to engage in First Amendment activities. Private citizens have to notify the government if they’re going to engage by spending small amounts of money on First Amendment activities expressing themselves, or else face penalties. More speech would fall into this category where Americans have to dutifully notify federal bureaucrats that they’re speaking their mind or else pay a fine. To put it another way: Free speech, as long as you fill out government forms and mail a couple of carbon-copies to Washington D.C. In other cases, Democrats want to impose stunningly vague, broad, and potentially unconstitutional restrictions on the abilities of all kinds of advocacy groups — on all sides of the political spectrum — from exercising their constitutional right to speak out about elected politicians and their positions on substantive issues.
“So, let’s go over that again because I know this is a technical subject. Under the guise of cracking down on ‘super PAC coordination,’ Democrats want to give a partisan FEC new powers to prohibit advocacy groups from weighing in on politicians’ job performance and the issues of the day under a broad set of new conditions. Washington Democrats want individual American citizens, civic groups, trade associations, labor unions, and nonprofits to face more restrictions, more hurdles, and more potential penalties for daring to have an opinion about the political races that decide who gets to Washington in the first place.”
Rolling Stone: Does Washington Know the Difference Between Dissent and Disinformation?
By Matt Taibbi
Page 268 of [H.R. 1], which was sponsored by Maryland Democrat John Sarbanes, features “Section 3201: National Strategy to Protect Democratic Institutions.”
The section mandates that the president work with the secretaries of Defense, State, and Education, along with the director of national intelligence, the chair of the Federal Election Commission and the “heads of any other appropriate federal agencies” to develop a “national strategy” against “cyber attacks, influence operations, disinformation campaigns” …
[T]his provision also specifically describes a strategy to combat domestic actors, and its mandate is couched in language that raises questions about its true purpose…
To recap: A bill that’s ostensibly about promoting democracy would mandate the creation of a new, potentially classified Executive Branch directive targeting both foreign and domestic “disinformation” and “influence.” The president, the Defense Department and the security agencies would have a mandate to combat a broad range of activities deemed resultant in an “erosion of public trust” and/or a threat to “democracy.”
The issue this little legislative nugget raises is the same one that’s been hovering around the edges of the national security debate since 2016 – the possibility of leveraging legitimate fears over foreign cyber-attacks into more direct intervention by the government in domestic discourse…
We’ve already seen in the past few years evidence of an increased interest in Washington in regulating the media and the internet, with tech companies asked in a Senate hearing to draw up plans to prevent the “foment of discord.” The only way a secret government strategy to prevent “an erosion of trust” wouldn’t be at least a little scary is if you have complete confidence the government knows the difference between legitimate dissent and improper “influence.”
Wall Street Journal: For the ACLU, Antipathy to Israel Trumps Antidiscrimination
By Eugene Kontorovich
The ACLU’s latest target is the Combatting BDS Act, which passed the Senate last week 77-23. The bill is quite modest compared with the anti-BDS measures enacted in 26 states in recent years, which the ACLU is also challenging. Those laws prohibit state contracts with, and investment in, companies that boycott Israel-connected firms. The federal Combating BDS Act would simply declare that the state laws don’t violate U.S. foreign policy.
Despite the bipartisan support the bill enjoyed in the Senate and overwhelming approval of the underlying state legislation, it faces a difficult road in the House, where radical Democrats are united against it.
The ACLU is providing political cover to Democrats who oppose the laws by claiming they raise constitutional problems. It has brought lawsuits in three states, arguing that the First Amendment protects firms’ right to boycott certain clients. In the litigation, the ACLU claims that “the state cannot condition government contracts” on a company’s refusals to do business with private parties for “political” motives. The Council on American-Islamic Relations has also brought two such lawsuits.
Yet state anti-BDS laws do not infringe on speech. They don’t regulate speech at all. That’s exactly what the ACLU has said when states passed similar antiboycott laws that weren’t about Israel.
The First Amendment protects speech, not conduct. In the 2006 case Rumsfeld v. FAIR, the Supreme Court held unanimously that the government can deny federal funding to universities that boycott military recruiters. Even though that boycott was based on political motives, that did not make it protected speech.
Free Speech
FIRE: 10 Worst Colleges for Free Speech: 2019
Every January, FIRE staffers convene to compile our list of the previous year’s worst colleges for free speech. Reviewing the lowlights of the year reminds each of us that campus censors can be pretty creative. Just when you think you’ve seen everything – and over FIRE’s 20-year history, we’ve seen a lot – some enterprising college trots out a new way to clamp down on unwanted, unpopular, or simply dissenting speech.
And this year’s 10 Worst Colleges for Free Speech list has a little something for everyone. No matter your political allegiances or partisan commitments, we’re willing to bet that some of you might find yourself uncomfortably sympathetic to the censors at some point reading the list.
As you’ll discover, targets of this year’s censors include an altered American flag, a sex educator, a fraternity skit, a couple of student newspapers, and two professors who testified on behalf of a former student accused of sexually assaulting a minor. So we fully anticipate that at least a few rage-tweets will soon be headed our way, as some outraged readers ask us how we can possibly stand up for that kind of expression.
But hey, that’s part of the job when you work for a principled and proudly nonpartisan organization like FIRE. Defending students and faculty whose speech is protected by the First Amendment – regardless of the viewpoint expressed or the speaker’s identity – means just about everyone gets mad at you sooner or later.
Just like years prior, this year’s “worst-of-the-worst” list is presented in no particular order, and both public and private colleges are featured. Public colleges and universities are bound by the First Amendment. Private colleges on this list are not required by the Constitution to respect student and faculty speech rights, but explicitly promise to do so.
Online Speech Platforms
Wall Street Journal: Writer Sues Twitter Over Ban for Criticizing Transgender People
By Georgia Wells
A Canadian writer filed a lawsuit against Twitter Inc. on Monday, saying the social-media platform unfairly banned her because her criticism of transgender rights doesn’t line up with the company’s politics.
Meghan Murphy, a gender-politics blogger, alleges that Twitter violated unfair-competition law when it changed its hateful-conduct policy late last year. Under Twitter’s new policy, users can be banned for calling a transgender individual by their pre-transition names or referring to them with the wrong pronouns. The suit alleges that change conflicts with Twitter’s previous commitment to free speech.
The lawsuit, filed in state Superior Court in San Francisco, combines two hot-button issues: how Silicon Valley companies should moderate content on their sites, and what protections should be provided for transgender individuals…
Ms. Murphy says that Twitter locked her account on Nov. 15, telling her that to regain control of her account, she would need to remove two tweets she posted the prior month. One tweet stated: “How are transwomen not men? What is the difference between a man and a transwoman?” The other said: “Men aren’t women.”
Ms. Murphy deleted the tweets, and posted a response to Twitter, saying, “I’m not allowed to say that men aren’t women or ask questions about the notion of transgenderism at all anymore?” The post went viral, according to her suit, receiving 20,000 likes. Days later, Twitter informed Ms. Murphy that she needed to delete this tweet as well, the suit says.
Twitter then banned Ms. Murphy permanently. According to the suit, Twitter sent an email to Ms. Murphy on Nov. 23, informing her that an item she had posted previously on Nov. 8 violated the company’s hateful conduct policy because she referred to a transgender woman as “him,” according to the suit.
The States
Idaho Press-Tribune: Campaign finance reform bills introduced, full hearing set
By Betsy Z. Russell
Two bills to beef up Idaho’s campaign finance reporting laws were introduced without dissent in a Senate committee on Wednesday, and Sen. Patti Anne Lodge said the changes are needed.
Both were recommended by a joint interim committee of lawmakers from both houses and both parties that Lodge co-chaired; the panel unanimously endorsed the changes in October. Lodge said the bills will get a full committee hearing on Monday in the Senate State Affairs Committee, which she chairs…
Among the proposed changes:
* Reporting requirements would expand to all levels of state and local government in Idaho, once $500 or more is raised or spent.
* All reports would go into a single, searchable database to be operated by the Secretary of State’s office.
* Reporting would be required monthly for the four months prior to each election, including primary and general elections.
* Fines of $50 a day would start immediately for those who fail to file disclosure reports on time, rather than first allowing a grace period.
Lodge said the main bill has a starting date for the changes of Jan. 1, 2020, to allow cities to complete their elections next fall before they transition to the new rules. The second bill addresses reporting requirements for independent expenditures and electioneering communications.
Tennessean: How Tennessee lawmakers want to change campaign finance laws this year
By Joel Ebert
State lawmakers and local officeholders are able to accept $1,600 in campaign contributions per election from individuals.
But under a proposal from House Speaker Glen Casada, R-Franklin, and Sen. Bo Watson, R-Hixson, candidates for state and local office would be allowed to receive $2,500 per election from individuals.
The bill, HB 1225 and SB 344, also would increase contribution limits for political action committees.
Candidates for statewide office would be able to raise $20,000 per election from a single PAC, up from the current $12,300 limit. Candidates for state and local offices would be able to receive $10,000 per election from each PAC. Such candidates are currently limited to $8,100 per election from a PAC.
The legislation, however, would not change the contribution limit for individual donations to those running for statewide office, which is $4,200.
The bill also would place limits on the total percentage of contributions candidates could receive from PACs. Statewide candidates could not have more than 50 percent of their overall contributions from PACs. Those running for state and local office could not receive more than $200,000 from PACs…
Another, HB 1485 and SB 873, would limit the registry’s ability to fine candidates to $1,000. The current maximum penalty a candidate can face is the greater of $10,000 or 115 percent of the amount of the violation.
Atlanta Journal-Constitution: Complaints say Georgia ethics chief watched porn at work, sat on cases
By James Salzer
[B]oth chief lawyers in the office said the commission staff found that during campaign report audits, possible violations were found against multiple mayoral candidates in the 2017 race. Instead of filing complaints, they said, Ritter told them to let the candidates correct the errors.
A similar outcome happened when audits found problems with Democratic gubernatorial candidate Stacey Abrams’ filings, according to the complaints.
“Mr. Lane and I met with Mr. Ritter and informed him that we had found evidence of several violations by the Abrams campaign,” wrote Bethany Whetzel, another deputy executive secretary of the commission. “Mr. Ritter was visibly disappointed that the violations we uncovered related to the Abrams campaign and directed us not to discuss their campaign filings.
“Mr. Ritter never met with the candidates; thus no subpoenas have been issued.”…
He had previously been the commission’s counsel and was known as an expert on Georgia’s sunshine laws.
Ritter took control of the commission at a tumultuous time. The agency had been without an executive director for months after the firing of Holly LaBerge, who was sanctioned and fined for her role in a whistleblower lawsuit filed by her predecessor.
In 2015, a Fulton County jury found her predecessor, Stacey Kalberman, had been forced from her job for investigating the campaign of Gov. Nathan Deal, and it awarded her and her attorneys $1.15 million.
