In the News
ABC News: Porn star who alleged Trump affair: I can now tell my story
By Jake Pearson and Jeff Horwitz, Associated Press
Stormy Daniels, the porn star whom Donald Trump’s attorney acknowledges paying $130,000 just before Election Day, believes she is now free to discuss an alleged sexual encounter with the man who is now president, her manager told The Associated Press Wednesday.
At the same time, developments in the bizarre case are fueling questions about whether such a payment could violate federal campaign finance laws…
[T]he payment by Trump’s lawyer was not reported as a campaign expenditure nor an in-kind contribution, and the origin of the money is still unclear, said Paul Ryan, a vice president at Common Cause, the group that filed the complaint.
But Bradley Smith, the Republican chairman of the Federal Election Commission from 2000 to 2005, was skeptical that the payment by Cohen could pose a campaign finance issue.
“You’d have to prove that it was a coordinated expenditure, and that the reason it was done was for the benefit of the campaign,” he said. If the payment was made to protect Trump’s brand or avoid personal embarrassment, he said, that would likely not be a campaign problem.
Billboard Insider: Industry Files Brief in Tennessee Case
By Dave Westburg
A federal court ruling that invalidated Tennessee’s billboard law – If allowed to stand – could jeopardize billboard regulations nationwide, said a legal brief filed by the out of home advertising industry.
In 2017, US District Court Judge Jon P. McCalla struck Tennessee’s billboard law as unconstitutional, citing a 2015 Supreme Court ruling against sign regulation based on content (Reed v. Town of Gilbert, AZ).
The State of Tennessee appealed to the US Sixth Circuit Court of Appeals, a four-state territory that includes Tennessee.
On February 2, the Outdoor Advertising Association of America (OAAA) filed an amicus brief supporting the State’s position that its billboard controls do not violate the First Amendment. State outdoor advertising associations for Kentucky, Michigan, Ohio, and Tennessee joined the industry’s brief…
In the Tennessee case, plaintiff William H. Thomas is represented by the Institute for Free Speech, a non-profit advocacy group based in Alexandria, VA.
“A law that permits a sign that says ‘Fireworks for sale here,’ but prohibits an identical sign that reads ‘Support our troops,’ imposes a content-based restriction on speech,” said Institute Director Allen Dickerson in a January 26 press release.
New from the Institute for Free Speech
Institute for Free Speech Statement on Indictments of 13 Russians for Interfering in 2016 Election
“As an organization dedicated to defending and advancing Americans’ First Amendment political speech rights, we applaud and support the investigation and prosecution of foreign nationals who impersonate Americans to interfere in U.S. elections. The Mueller indictments paint the picture of a wide-ranging conspiracy to steal American identities and commit fraud in order to sow distrust in American politics. These illegal actions are best policed through the Foreign Agents Registration Act and other existing laws.”
“The information contained in the indictments shows that the political messages these foreign nationals promoted were not carefully crafted to abide by campaign finance laws. Rather, they brazenly violated multiple campaign finance laws already on the books, including prohibitions on expenditures by foreign citizens, disclaimer rules, and mandatory reporting requirements. This supports the Institute’s position that proposals to respond to foreign interference with broad-based restrictions on American online issue speech, such as the “Honest Ads Act,” miss the mark. Nothing in the “Honest Ads Act” would have made these violations more readily detectable.”
“These indictments show we can protect American political speech rights and prevent foreign interference in elections at the same time.”
Can Clinton Campaign Be Indicted?
By Brad Smith
Registration under the Foreign Agents Registration Act (FARA) is required when one acts “as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal.” 22 U.S.C. 611. It’s not being a foreigner that requires you to register under FARA, it’s acting as an agent of a foreigner. There is no evidence that Steele (acting for Fusion GPS/DNC/Clinton Campaign) was acting as an agent of a foreign principal, and obviously that wouldn’t apply to the U.S. entities (Fusion/DNC/Clinton)…
All of this illustrates the danger of the current climate of attempting to criminalize political differences and election defeats. Americans are justifiably concerned when foreign governments, especially a hostile foreign government such as Russia, attempts to interfere with and shape our politics…
It is important as we consider responses that we not get far ahead of the evidence, or jump to endorse new laws and proposed solutions that jeopardize the rights of Americans. And it is important to note that the main thing that comes through clearly in the Special Prosecutors indictments is that the Russian aim wasn’t to elect Trump (or anyone else) but to sow discord and distrust in America, and to discredit whomever won the 2016 election. By overreacting, we play into their hands.
Internet Speech Regulation
Slate: The Campaign Finance Loophole That Could Make the Next Russian Attack Perfectly Legal
By Richard L. Hasen
The Mueller indictment of 13 Russian nationals for interfering with the 2016 U.S. presidential election offers a remarkably detailed account of a complex plot to sow discord and influence the presidential contest in favor of Donald Trump. The indictment critically points to something else, though: It provides a roadmap for the Russians to do it all again, without violating any current campaign finance laws the next time…
What can be done for next time (and there no doubt will be a next time)? Proposed federal legislation known as the “Honest Ads Act” would extend the “electioneering communications” rules to digital ads, including those on social media. The bill, whose sponsors include Democratic Sen. Amy Klobuchar and Republican Sen. John McCain, appears to be going nowhere.
The Mueller indictment shows how the Russians learned how to interfere with our election, for example, by seeking out political advice from Americans that led them to target “purple states.” They will potentially learn this lesson too. Unless Congress passes a law like the Honest Ads Act, it will be quite easy for Russian trolls and other foreign actors to avoid the foreign money ban, as well as for Americans to run such ads and avoid disclosure.
Reuters: Facebook plans to use U.S. mail to verify IDs of election ad buyers
By Dustin Volz
Facebook Inc will start using postcards sent by U.S. mail later this year to verify the identities and location of people who want to purchase U.S. election-related advertising on its site, a senior company executive said on Saturday…
The process of using postcards containing a specific code will be required for advertising that mentions a specific candidate running for a federal office, Katie Harbath, Facebook’s global director of policy programs, said. The requirement will not apply to issue-based political ads, she said.
“If you run an ad mentioning a candidate, we are going to mail you a postcard and you will have to use that code to prove you are in the United States,” Harbath said at a weekend conference of the National Association of Secretaries of State, where executives from Twitter Inc and Alphabet Inc’s Google also spoke.
“It won’t solve everything,” Harbath said in a brief interview with Reuters following her remarks.
But sending codes through old-fashioned mail was the most effective method the tech company could come up with to prevent Russians and other bad actors from purchasing ads while posing as someone else, Harbath said.
Campaign Finance Law
Just Security: The Charging Mystery in the Russia Indictments-And Its Indication of What Comes Next in the Mueller Investigation
By Bob Bauer
Bob Mueller omitted any direct charge for violations of the Federal Election Campaign Act.
Instead, the indictment builds the campaign finance issues into a conspiracy to defraud the United States-it alleges that the Russians conspired to obstruct the capacity of the Federal Election Commission (FEC) to enforce the law. The act of obstruction was a failure to report their illegal expenditures…
Mueller and his team may have concluded that straight statutory campaign finance allegations rest on too much untested ground and would complicate what may well be the next phase of their investigation. This consideration would not affect the foreign national side of the case: Foreign nationals are plainly prohibited from spending in the manner detailed in the indictment. But how the law reaches American co-conspirators is less certain, and the special counsel’s theory of the case, pleading the campaign finance aspect of the case through conspiracy-to-defraud, may allow more securely for the prosecution of American actors.
FEC
Washington Examiner: FEC war on Drudge, internet, goes ‘underground’
By Paul Bedard
“The desire to regulate Americans’ political speech on the internet remains alive and well here at the commission and now even in Congress,” added [Lee] Goodman, whose last day on the FEC [was] Friday.
Goodman pointed to efforts by FEC Democrats to change long-standing media exemptions to fines and even criminal charges…
The drive for regulation, he said, comes from the explosion of politics on the internet and the Russian concerns.
“First and foremost, more political speech is being published on the Internet, and for those who prefer greater regulation of politics, their regulatory attention will focus on the latest and most active forum for political activity, and that’s the internet,” he said.
“Second, those who desire greater regulation of political speech have decided to use the scare of a few Russian ads on Facebook as an excuse to restrict the free speech rights of millions of American citizens and American media and technology companies. I think the Russian excuse will fade as a justification to restrict the free speech rights of American citizens, just like the Red Scare of the 1950s eventually subsided. But there will always be an excuse invoked to regulate new media and Internet speech.”
Independent Groups
Center for Public Integrity: State and federal officials accuse veterans nonprofit of misleading donors
By Sarah Kleiner
Rep. Walter B. Jones, R-N.C., on Wednesday asked the leaders of two U.S. House committees to launch an investigation into “bad actors” who mislead donors and enrich themselves in the name of military veterans. He cited the Center for Public Integrity’s investigation into Hampton’s veterans operation and media reports about other veterans charities.
“Congress should not sit on the sidelines while unscrupulous individuals abuse their tax-exempt status, fleece donors and take advantage of the men and women who have served our great nation and their families,” Jones wrote in a letter to the leaders of the House Committee on Ways and Means and the House Committee on Oversight and Government Reform. Committee representatives could not immediately be reached for comment.
Center for Public Integrity: How Democrats use ‘dark money’ – and win elections
By Ashley Balcerzak
When it seemed as if Democrat Doug Jones could actually beat embattled Republican Roy Moore, a new super PAC supposedly based in Birmingham, Alabama, appeared just one month before Election Day. The super PAC, called Highway 31 after a route that bisects Alabama, spent $5.1 million to boost Jones, more than any other group active in the general election.
Using a little-known legal loophole that allows political committees to do business on credit, the super PAC didn’t disclose the identities of its bankrollers until a month after voters chose Jones as their senator. And when Highway 31 did disclose, most of its funders turned out to be organizations who in turn receive some of their funding from sources that are difficult, if not impossible, to comprehensively trace to flesh-and-blood humans…
“You oftentimes hear Democrats say, ‘We support campaign finance reform, but this particular election we need to use every arrow in our quiver in order to win,’ or ‘but we need to set some of these principles aside because the stakes are so high,'” said Brendan Fischer at the Campaign Legal Center. “It’s one thing to play in the system as it currently exists, and it’s another one to cook up legally dubious strategies that are going to be exploited to a great degree on both sides.”
The States
Wyoming Powell Tribune: It’s time to enforce campaign finance laws
By CJ Baker
Campaign finance reports illuminate the role of money in our elections process. Although they rarely contain explosive details, we believe the transparency they provide is important and valuable.
Thankfully, the Legislature’s Joint Corporations, Elections and Political Subdivisions committee worked on the current campaign finance laws over the past year.
In November, the committee voted to sponsor what’s now known as House Bill 2, “Election law violations-penalties and enforcement.”
The proposed legislation would clear up the current murkiness over how authorities should handle it when candidates are late with their finance reports.
Under the draft bill, when a contender misses the deadline on a report, they would get a notification from the county clerk or secretary of state’s office, saying they have 14 days to turn in an accounting of their campaign’s finances.
If the candidate or committee doesn’t get their reports in within that two-week span, they’ll face a $500 penalty (if they’re a candidate for state office) or a $200 penalty (if they’re running for a local office). The candidate will then have 20 days to protest the fine by “showing good cause for a failure to file a report.”
The draft bill also lays out a much clearer process for investigating and prosecuting violations of the state’s elections code.
