New from the Institute for Free Speech
By David Keating
On August 15, 2021, Taliban fighters seized the presidential palace in Kabul, Afghanistan, marking the effective collapse of the U.S.-backed government. . . The speed of the collapse left thousands of people trapped and desperate to flee the country, including many Afghan citizens fearful of what would happen to them under Taliban rule. In their hour of desperation, many of them reached out to whatever friends they had in the United States, seeking help getting visas approved and getting on flights out of the country. Many of their friends answered the call without stopping to ask for permission: pleading with their congressman or other government officials, going on television, giving print interviews, doing whatever they could to get their government to help their friends. It was in many ways, a reflection of the best of the American can-do spirit in the midst of a terrible tragedy and policy failure.
It was also likely illegal, at least under the plain text of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611 et seq. (“FARA”). And that is the problem.
By its plain terms, FARA is an exceptionally broad and vague law that chills free speech and free association by American citizens and sets snares for the unwary, even capturing some of the most sophisticated of Washington players. The Department of Justice should use the opportunity presented by this ANPRM to draft and adopt regulations that set bright line standards and limit the scope of FARA-regulated activity to conform to the First Amendment.
The Courts
Atlanta Journal-Constitution: Judge says Kemp can’t use special fund in his GOP primary reelection bid
By James Salzer
A federal judge [last] Monday dealt a partial blow to Gov. Brian Kemp’s reelection fundraising plans, saying he can’t use a special leadership committee that lets him raise unlimited campaign contributions to help him win the Republican primary.
But it was a split decision, because the ruling also said Kemp can still use the new leadership committee to raise money — including during the General Assembly session — to spend in other races. That could include his expected rematch with Democrat Stacey Abrams if he wins the GOP primary.
And the ruling does not say the committee has to give back the money it previously spent or has committed to spend on things such as advertising to win the Republican race.
Wall Street Journal: Sarah Palin v. New York Times Goes to Jury
By Deanna Paul
Trial proceedings wrapped up Friday in former Republican vice-presidential candidate Sarah Palin’s defamation lawsuit against the New York Times, with a jury set to decide one of the biggest media-law battles in years.
In closing arguments, lawyers for Ms. Palin sought to portray the Times as a newspaper that used its power to disfavor conservatives, while the Times said the former Alaska governor was attempting to seize on a mistake it made in order to undermine important legal protections for a free press…
Palin lawyer Kenneth Turkel urged a federal jury in Manhattan to hold the Times accountable in a case that he said boiled down to a simple rule: “Don’t say false things.” …
“Freedom of the press and freedom of speech are fragile things,” and liability for honest mistakes would lead to an onslaught of litigation and create a chilling effect for newspapers like the Times, [Times lawyer David Axelrod] said.
FEC
Politico: Inside the totally legal, fairly macabre, classically political world of the true Zombie PACs
By Hailey Fuchs
There have been attempts to create guidance around a dead politician’s campaign cash…
Sens. Michael Bennet (D-Colo.) and Elizabeth Warren (D-Mass.) have introduced legislation that would require politicians to close their campaign accounts within six months in the event that the person did not file to run for a federal office in the next election. It would also prevent the candidate from giving that money to a charity where the politician or his or her family is employed…
As of now, the FEC does not appear to be doing much to police these lingering campaign accounts, nor does their mere existence seem to be breaking any of its rules. The agency considers the expenses incurred in the six months after a lawmaker leaves office to wind down that office to be “ordinary and necessary expenses.” But the half-year timeline is somewhat meaningless. A 2013 advisory opinion from the agency added that expenses beyond that six-month period could also be considered “ordinary and necessary winding down expenses.”
Candidates and Campaigns
Washington Post: Luria brings in nearly $200,000 from corporate PACs since dropping pledge to reject their money
By Meagan Flynn and John D. Harden
Rep. Elaine Luria (D-Va.) has accepted nearly $200,000 in contributions from corporate PACs this campaign cycle after abandoning a pledge not to accept money from corporations at the end of 2020, according to her latest year-end campaign finance filing.
The States
Atlanta Journal-Constitution: Georgia Senate bill would put limits on fundraising by challengers
By James Salzer
Georgia Senate leaders are trying to make sure the people challenging them for office can’t raise campaign money during the three months state lawmakers are in session.
Legislators have long griped that — while they and other state officials have been banned from taking checks during a session — challengers are allowed to raise money in that period, roughly from early January through March.
That was the crux of the legal argument state lawyers made for why a federal judge shouldn’t throw out a special committee the Republican majority approved last year that allows the governor to raise unlimited funds during a session.
So Senate Rules Chairman Jeff Mullis, R-Chickamauga, on Thursday proposed a rewritten ethics measure — House Bill 333 — that would include a ban on challengers raising money during a session.
The Oregonian: Attorney General Ellen Rosenblum gives new life to proposed ballot measures to limit campaign contributions
By Andrew Theen
Attorney General Ellen Rosenblum, a Democrat, quietly certified ballot titles for three proposed initiatives Thursday evening, one day after fellow Democrat Secretary of State Shemia Fagan disqualified them from the ballot on a technicality.
Rosenblum’s action means activists who favor the proposals and disagree with Fagan’s disqualification can make their case before the Oregon Supreme Court in an expedited fashion.
New York Post: H&R Block tax software made ‘voluntarily contributions’ to NY pols: source
By Conor Skelding
Doublecheck your New York state tax return, if you filed early with H&R Block.
The $4 billion firm’s tax-prep software made “voluntarily contributions” on behalf of unsuspecting taxpayers to a new state fund that donates to political campaigns, a tax expert told The Post…
New this year is the Campaign Finance Fund, which under new provisions in state law will make matching contributions to eligible candidates for office. Givers don’t get to direct their donation to a particular party or candidate.
Individual contributions must be $40; joint filers can give either $40 or $80…
Garrett Watson, a senior policy analyst at the Tax Foundation, said the practice of soliciting voluntary contributions “does lead to mistakes.”
