In the News
FIRE: So to Speak podcast: Former FEC Chairman Bradley Smith
By Nico Perrino
Former Federal Election Commission Chairman Bradley A. Smith is perhaps best known for opposing many campaign finance regulations on First Amendment grounds. On today’s episode of So to Speak: The Free Speech Podcast, we talk with the former chairman about how political campaign activity is regulated in America and how this regulation implicates the First Amendment. We also explore some of today’s hot-button campaign finance controversies.
Smith is a professor of law at Capital University Law School in Columbus, Ohio. From 2000 until 2005, he served as an FEC commissioner. He was FEC chairman in 2004 and vice chairman in 2003. In 2005, Smith founded the Center for Competitive Politics, now known as the Institute for Free Speech.
Boise State Public Radio: Senate Committee Signs Off On Part Of Idaho Campaign Finance Overhaul
By James Dawson
[A] second bill that would make nonprofits or other groups release the names of their bigger donors if they spend more than $1,000 in independent expenditures is getting pushback.
“I think that Idaho will be worse off, your citizenry will be worse off, if voices that would like to participate in the political process are chilled because the price of doing so is disclosing their donors,” says Sean Parnell, vice president of public policy for the Philanthropy Roundtable…
Under the bill, even mentioning a candidate’s name would trigger a disclosure for those who donate more than $250.
“This bill is just too extreme for what Idaho needs right now,” says Tyler Martinez with the Institute for Free Speech.
“This isn’t really about transparency. This bill ends up requiring citizens to register and report to the government in order to speak on legislative issues,” Martinez says.
Both men were the only ones who spoke on the bill, which was taken up with only a few minutes left in the hearing.
The Senate State Affairs Committee adjourned Wednesday morning, but will continue the hearing on the bill again Friday.
New from the Institute for Free Speech
D.C. Circuit Should Hear First Amendment Challenge to FOSTA
A friend-of-the-court brief filed last night by the Institute for Free Speech (IFS) argued that a federal judge erred in slamming the door to a First Amendment challenge to a 2018 law passed by Congress to fight sex trafficking.
“When faced with a credible threat of prosecution under a vague law, Americans should get their day in court,” said Institute for Free Speech Legal Director Allen Dickerson. “When speakers face lawsuits not only from government but from private parties, the risk that many will choose silence soars. It is vital that the courthouse doors remain open for cases like this.”
The Woodhull Freedom Foundation is challenging the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) because it “chills sexual speech and harms sex workers.” After a federal district court judge ruled the group didn’t have standing to challenge the law in court, the Foundation appealed the ruling. The IFS brief supports the Foundation’s appeal.
Courts have long recognized “the danger that citizens will not risk speaking in the face of ambiguous or merely possible governmental action,” the brief explains. As a result, they have historically relaxed the traditional rules of standing in order to allow Americans to challenge such laws in court…
If the lower court’s reasoning is upheld on appeal, other First Amendment challenges to political speech regulations may also be denied their day in court.
FOSTA creates new criminal and civil liability for online platforms and speakers that allegedly assist or facilitate prostitution or sex trafficking. The law also significantly weakens the protections afforded to online platforms against liability for the speech of their users. Plaintiffs in the case include the Woodhull Freedom Foundation, Human Rights Watch, and the Internet Archive.
The case, Woodhull Freedom Foundation v. United States, is before the United States Court of Appeals for the District of Columbia Circuit.
To read the Institute’s brief, click here.
Amicus: Woodhull Freedom Foundation, et al. v. U.S., et al.
The Supreme Court has long recognized that statutes which present an intrinsic “danger…of self-censorship; a harm that can be realized even without an actual prosecution,” require immediate judicial review. Va. v. Am. Booksellers Ass’n, USCA Case #18-5298 Document #1774110 Filed: 02/20/2019 Page 10 of 23 484 U.S. 383, 393 (1988). The Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA” or “Act”) is such a statute.
Appellants credibly explained the ways in which FOSTA’s vague provisions have harmed their business and advocacy interests. See, generally, JA 20-36, Complaint (“Impact on Plaintiffs”). For example, the Woodhull Freedom Foundation not only pointed to a specific, annual event threatened by FOSTA, JA 30, ¶ 70-71, but also described how FOSTA had already chilled particular modifications to the 2018 event. JA 32-33, ¶ 82 …
Nevertheless, the district court accepted the Government’s interpretation of FOSTA at face value, and accordingly dismissed all of Appellants’ claims.
But the standard is not whether the United States, only one of many potential enforcers, makes a nonbinding statement that it will not enforce against particular plaintiffs with the “civic courage” to bring a lawsuit. Doe v. Reed, 561 U.S. 186, 228 (2010) (Scalia, J., concurring in the judgment). Nor should parties be required to plead their likely future activity with the exactness of a criminal indictment, lest the Government’s nonbinding representations be conveniently distinguished in some future prosecution. Rather, “where, as here, First Amendment rights are implicated and arguably chilled by a ‘credible threat of prosecution'” a court’s “reluctan[ce] to require parties to subject themselves to enforcement proceedings” is “at its peak.” Unity08 v. Fed. Election Comm’n, 596 F.3d 861, 865 (D.C. Cir. 2010) (quoting Chamber of Commerce, 69 F.3d at 603, emphasis supplied).
Congress
Wall Street Journal: Ex-Trump Lawyer Michael Cohen to Testify at Open House Hearing Feb. 27
By Rebecca Ballhaus
Michael Cohen, a former lawyer for President Trump, has agreed to testify publicly before the House Oversight Committee on Feb. 27, in what is expected to be an explosive hearing focused on his decade of working for the president.
In his testimony before the House Oversight Committee-his first and only planned public hearing-Mr. Cohen is expected to criticize his onetime boss, a man for whom he once said he would “take a bullet.” The panel is expected to focus on his life story, examining how he broke with Mr. Trump and implicated him in federal crimes after spending more than 10 years as one of his most loyal aides.
In a memo released Wednesday, Rep. Elijah Cummings (D., Md.), the chairman of the House Oversight Committee, said Mr. Cohen’s testimony would focus on the hush-money payments he arranged to women during the 2016 campaign who alleged sexual encounters with Mr. Trump, as well as on the president’s compliance with tax laws, his “potential and actual conflicts of interest,” his business practices and “the accuracy of the President’s public statements,” among other matters…
Mr. Cohen won’t answer questions that touch on special counsel Robert Mueller’s investigation into whether Trump associates colluded with Russia’s interference in the 2016 U.S. election, according to a person close to Mr. Cohen…
Democratic-led congressional committees have eagerly sought Mr. Cohen’s testimony since he pleaded guilty to federal crimes including lying to Congress and campaign-finance violations related to hush-money payments to women who said they had affairs with Mr. Trump…
The Oversight Committee hearing, announced on Wednesday, will come a day before he speaks privately to the House Intelligence Committee.
Politico: Michael Cohen to testify before Senate Intel panel Tuesday
By Andrew Desiderio and Darren Samuelsohn
Michael Cohen is set to testify before the Senate Intelligence Committee behind closed doors on Tuesday, a source close to Cohen said, in what will kick off a three-day marathon of Capitol Hill testimony for President Donald Trump’s former attorney and fixer.
Cohen was due to testify before the committee last week, but asked to delay his appearance while he recovers from shoulder surgery. The panel had issued a subpoena to compel Cohen’s highly anticipated testimony as part of its investigation into Russian interference in the 2016 election…
Cohen’s Tuesday interview with Senate investigators will be his first of three appearances on Capitol Hill next week. On Wednesday, Cohen is set to appear before the House Oversight Committee in a public hearing that is expected to focus on his work for the president, including the payments made during the 2016 campaign to women who alleged that they had had affairs with Trump. The next day, he is scheduled to attend a closed-door interview with the House Intelligence Committee.
Washington Examiner: Alexandria Ocasio-Cortez’s campaign finance hypocrisy
By Dan Backer
In what has become the most viewed Twitter video of any politician, Ocasio-Cortez recently played a “Corruption Game” during a House Oversight Committee hearing to call for “campaign finance reform.” …
Ocasio-Cortez crusades against “special interests,” but every interest is “special” to those who care about it. That’s as true for the pro-abortion groups publicly endorsing Ocasio-Cortez as it is for the labor unions funding her campaign committee. They just happen to be “special interests” she likes…
Ironically, Ocasio-Cortez’ own story contradicts her narrative that the “little guy” can’t win. A former bartender from a working-class background, Ocasio-Cortez defeated former Rep. Joe Crowley after being outspent by an 18-to-1 margin. A longtime incumbent who hadn’t faced a primary opponent since 2004, Crowley was the epitome of an entrenched D.C. insider with deep pockets…
Ocasio-Cortez is now one of the Democratic Party’s brightest stars, gracing the cover of Vanity Fair and attracting a $10 million Netflix documentary, only months after serving drinks in New York City. Her story proves that money doesn’t win elections, charismatic politicians and popular ideas do. If you really want to support a socialist candidate, no billionaire boogeyman can stop you. If you don’t, then you choose someone else. There is no amount of money that’s going to make voters vote for someone they don’t want to vote for…
Money is simply a tool used to disseminate ideas to the public. Ocasio-Cortez knows it, having raised well over $2 million and spending nearly $1.7 million of it in her general election without facing any real competition. She spent those funds to spread her socialist ideas to the American people, through advertising, grassroots outreach, and other forms of political speech – the same speech Ocasio-Cortez would deny others in the name of “campaign finance reform.”
IRS
Axios: IRS analyst charged with leaking Cohen bank records to Michael Avenatti
By Zachary Basu
John Fry, an analyst with the Internal Revenue Service, was charged Thursday with leaking Michael Cohen’s confidential bank records to Stormy Daniels’ attorney Michael Avenatti.
Why it matters: Avenatti posted a report on Twitter last May detailing payments that various firms made to a shell company Cohen set up called Essential Consultants – the same company Cohen used to pay off Daniels – for “insights into understanding the new administration.”
Candidates and Campaigns
Washington Times: Bernie Sanders jumps into ‘most expensive primary race in history’ with $6 million first-day haul
By Seth McLaughlin
Sen. Bernard Sanders pulled in almost $6 million in cash on his first day in the 2020 campaign, in the latest sign that, while Democrats complain about money in politics, they’re poised to raise and spend a whole lot of it over the next two years.
Political observers predict that the Democratic primary will set new records for fundraising, particularly with the size of the field of candidates and the primary calendar that front-loads big states with expensive media markets such as California.
“If each of those candidates earnestly enter the money race, I think it would almost be impossible not to be the most expensive primary race in history – especially with candidates like Sanders raising $6 million in a day,” said Sarah Bryner, research director at OpenSecrets.org, which tracks money in politics…
Chasing money means flooding supporters’ inboxes with email solicitations – with Ms. Warren particularly prolific, averaging more than an appeal a day…
Blasting Mr. Trump and disavowing corporate interests are also frequent themes of money-raising missives…
Analysts said the attacks on big money can be effective, but largely ring hollow because corporate PACs and lobbyist are not usually major players in Democratic primaries – and the promises about rejecting super PAC support will likely get tossed out the window in the general election campaign.
“I would be very surprised in the general election that we didn’t see super PAC spending by liberal groups supporting the candidate from the Democratic Party and opposing the president and the Republican Party,” Ms. Bryner said.
Washington Examiner: Alexandria Ocasio-Cortez’s office sure looks swampy
By Becket Adams
During the 2018 election, her campaign made several payments to Brand New Congress LLC for “strategic consulting,” and then Brand New Congress PAC made payouts to her boyfriend, Riley Roberts, who is billed as a “marketing consultant,” according to Federal Election Commission filings compiled this week by GOP operative Luke Thompson. As if that weren’t ethically dubious enough already, both the LLC and the PAC, which carried Ocasio-Cortez’s fledgling campaign to victory, were co-founded by her campaign chairman and current chief of staff, Saikat Chakrabarti.
Thompson documented the details Wednesday in a Medium post. The most relevant parts read:
“AOC paid Brand New Congress LLC for strategic consulting, in her case totaling $18,880.14. Unlike in the other cases, Brand New Congress PAC turned around and paid her boyfriend as a ‘marketing consultant’.
Indeed, while Brand New Congress PAC’s ten largest expenditures were paid to Brand New Congress LLC for ‘strategic consulting,’ a sum that totaled $261,165.20 over the course of the campaign, its eleventh and twelfth largest expenditures were paid to Riley Roberts.
Brand New Congress PAC paid Roberts $3,000 on August 9th.
Eighteen days later, AOC’s campaign paid Brand New Congress LLC $6,191.32.
A month later Brand New Congress PAC then turned around and paid Riley Roberts another $3,000…” …
The finer details are convoluted, but the toplines are this: There are two separate “Brand New Congress” entities. First, there’s the PAC, which raises money it can contribute to candidates’ committees. Then there’s the LLC, which “provides campaign services to candidates to help lower the barriers to entry,” Thompson explains, adding, “LLCs do not have to disclose or itemize their spending.”
The States
NJ Spotlight: Is New Jersey Ready To Train The Spotlight On Dark Money?
By Colleen O’Dea
The Senate is scheduled to vote today on legislation to expand New Jersey’s election-reporting laws to require independent groups whose funders are now largely unknown to disclose those who make big contributions…
[A]fter an organization with ties to Gov. Phil Murphy reversed course earlier this year and said it would not voluntarily disclose its donors, Sen. President Steve Sweeney (D-Gloucester), who has been feuding openly with Murphy, announced his support for S-1500…
The bill had been poised for passage last month, but instead was amended on the floor of the Senate to prevent elected officials from establishing or managing dark-money groups. The amendment, which passed 31-0 with bipartisan support, is largely seen as a swipe at Brendan Gill, current president of both the Essex County Freeholder Board and the New Jersey Association of Counties…
Originally, the bill had sought for dark-money groups a lower contribution threshold for disclosure – the same $300 as for candidates. But numerous nonprofit organizations that do genuine advocacy in addition to some political activities, including the American Civil Liberties Union and New Jersey Right to Life committee, complained that some of their donors might balk at making contributions if their identities are going to be disclosed. The $10,000 contribution threshold would capture the identities of only large donors.
Also troubling to those groups is the provision in the bill that would make it retroactive to January 1, 2018. The use of that date would mean New Direction, which was established last year, would have to disclose its funders as promised. But it also means individuals who may have made a large contribution to any grassroots group would have their identities and contributions made public, too, even if they may not have given money had they known their donations would become public.
Asbury Park Press: NJ must protect identity of political donors
By David Sukoff
[S]tate legislators held a hearing Jan. 28 on how to “out” people who support any social or political cause. This is a direct threat to our freedom of speech and our right to privacy, and bill S-1500 must be stopped…
Legislators are claiming the bill is about transparency and will empower voters. Yet California learned disclosure – combined with the internet – is having the opposite effect. As reported by the New York Times “information collected through disclosure laws intended to increase the transparency of the political process, magnified by the powerful lens of the Web, may be undermining the same democratic values that the regulations were to promote.”
The article went on to report of ugly intimidation. Donors received death threats, envelopes containing white powder, and their businesses were boycotted. This targeting of donors scares many from engaging in the political and policy process…
Sen. Troy Singleton, D-Burlington, claims the purpose of the bill is to provide “more information about the interests working to influence the political process so they can make informed decisions.” In reality, it will result in the opposite. Public advocacy groups spend millions informing the public about how their legislators voted and of their possible motives. What Singleton fails to recognize or acknowledge is that identifying the group itself is disclosure enough. There is no logical rationale in outing individual donors, other than to encourage retribution and harassment, from both public officials and the general public. Thus, the result will be that donors and organizations will fear exposing the truth about what is happening in Trenton…
You do not have freedom of speech without privacy. New Jersey legislators, by pushing Bill 1500, seek to strip away your right to privacy, and along with it your freedom of speech.
