In the News
The Hill: Democrats have campaign proposal that will create more Donald Trumps
By Scott Blackburn
Over the past decades, states and cities have experimented with various schemes to give politicians government money for their campaigns…
These programs do not increase the diversity of elected leaders, do not reduce the influence of “special interests,”and do not cut back the power of incumbents. One thing the matching fund scheme will do is empower the more polarizing and partisan candidates.
If you look a little more closely, this makes intuitive sense. Why would an average person donate to a wealthy politician running a multimillion dollar campaign instead of donating that money to the local fire department or homeless shelter? The donor must be incredibly passionate about that candidate, and the donor must be certain that the ideas of that candidate are the right ones for the country. Caring deeply about politics is great, but it does lead to more partisan views…
How do politicians appeal to these deeply partisan voters? They use an emotional message aimed at getting their core supporters to part with their money. Of course, everyone is susceptible to heated appeals. But incentivizing politicians to compete for that big government check will exacerbate the trend. Incumbents will alter their messages to be less policy focused and more ideologically rigid…
Moreover, matching fund schemes diminish the role of political parties, which are key moderating forces. Candidates with plenty of cash thanks to this system are less reliant on party support, and donors have less incentive to give to the parties…
The way our government runs today is a mess and Americans are rightly tired of it. But a matching fund program will do nothing to address this. It could well make things worse by giving more success to the loudest and most extreme candidates who can best capitalize on the emotions of their base. Ironically, the first bill introduced by Democrats could thus lead to more candidates like Trump.
C-SPAN: Washington Journal 03/06/2019
Institute for Free Speech’s David Keating discusses Democrats’ efforts to reform campaign finance laws…
[Watch live on March 06, 7AM ET]
Electronic Frontier Foundation: With FOSTA Already Leading to Censorship, Plaintiffs Are Seeking Reinstatement Of Their Lawsuit Challenging the Law’s Constitutionality
By Karen Gullo and David Greene
As we argued in our opening brief, when violations of the First Amendment are at stake, courts have an obligation to take a broad view of who will be affected by any law or regulation that threatens free speech. The Institute for Free Speech agreed and expounded on this issue in its brief. Courts have held that laws implicating First Amendment rights can be challenged before they are enforced as long as there is a credible threat that speech will be chilled. And there is ample evidence that FOSTA has caused organizations to censor their speech (more on that below).
Government attorneys defending FOSTA in the case convinced the trial judge not only that the plaintiffs lacked standing, but also that the plaintiffs’ examples of chilled speech would not run afoul of FOSTA. That’s no guarantee that the government won’t take FOSTA enforcement against them, and does nothing to stop states attorneys general or private individuals from hauling the plaintiffs, and others like them, into court seeking damages or criminal prosecution. As the institute’s lawyers said:
“This is precisely the kind of case for which First Amendment standing doctrine was developed. It is a pre-enforcement challenge to a statute of startling scope and uncertain meaning, directly regulating a major frontier of First Amendment-protected activity. And Congress chose to decentralize its enforcement, permitting numerous parties, including private litigants and state attorneys general, to bring lawsuits against alleged violators.”
Washington Examiner: AOC’s chief of staff ran $1M slush fund by diverting campaign cash to his own companies
By Alana Goodman
Two political action committees founded by Rep. Alexandria Ocasio-Cortez’s top aide funneled over $1 million in political donations into two of his own private companies, according to a complaint filed with the Federal Election Commission on Monday…
The arrangement skirted reporting requirements and may have violated the $5,000 limit on contributions from federal PACs to candidates, according to the complaint filed by the National Legal and Policy Center, a government watchdog group…
Adav Noti, the senior director of the Campaign Legal Center and a former FEC lawyer, said the arrangement was highly unusual and seemed intended to obscure the destination of the funds.
“None of that makes any sense,” said Noti. “I can’t even begin to disentangle that. They’re either confused or they’re trying to conceal something.”
Noti said it would be simpler to set up a consulting company and work directly with campaigns to provide services for a fee rather than creating a federal PAC and sending the money to a company controlled by the same person.
“It does seem like there’s something amiss. I can only think of really two likely possibilities for this sort of pattern of disbursements,” said Noti. “One is the scam PAC possibility – they’re really just paying themselves and they’re concealing it by using the LLC. The other is that there’s actually another recipient, that the money is going to the LLC and then being disbursed in some other way that they want to conceal.”
Bradley A. Smith, a former chairman of the FEC, said he has never seen such an arrangement. “It’s a really weird situation,” he said. “I see almost no way that you can do that without it being at least a reporting violation, quite likely a violation of the contribution limits. You might say from a campaign finance angle that the LLC was essentially operating as an unregistered committee.”
Supreme Court
First Amendment Watch: Levine and Wermiel: “Dubious Doubts and ‘the Central Meaning of the First Amendment’-A Preliminary Reply to Justice Thomas”
By Lee Levine and Stephen Wermiel
There are any number of obvious responses to Justice Clarence Thomas’s misguided assertion in McKee v. Cosby (2019) that New York Times v. Sullivan (1964) ought to be overruled. They include the overwhelming academic consensus applauding the decision both at the time and thereafter; the proper role of original intent in free speech analysis; the history of seditious libel in the United States and its dispositive significance in divining that intent in Sullivan; and the case’s place in defining “the central meaning of the First Amendment” that has guided the Court’s First Amendment jurisprudence for more than half a century. We explore all of them in a forthcoming extended essay in Communications Lawyer. Here, we focus on Justice Thomas’s dubious reliance on “original intent” as well as the curious timing of his assault on Sullivan.
Let’s begin with “original intent.” Neither Sullivan, nor any of its progeny, Justice Thomas asserts, “made a sustained effort to ground their holdings in the Constitution’s original meaning.” First of all, these words simply cannot be squared with Justice William J. Brennan’s opinion in Sullivan, four full pages of which are devoted to the Framers’ intent as gleaned from the most analogous historical experience-the controversy surrounding the Sedition Act of 1798. The Court not only traced this history at length in Sullivan, Justice Brennan also canvassed authoritative assessments of its constitutional significance, all of which, including most especially the published views of Justices Holmes, Brandeis and Jackson, reflected “a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” This consensus-reflecting the considered judgment of “the court of history”-was and remains especially significant because, as Justice Brennan also noted, “the Sedition Act was never tested” in the Supreme Court.
The Courts
Courthouse News Service: Judge Nixes Challenge to Unbridled Super-PAC Spending
By Britain Eakin
A bipartisan group of lawmakers lost a court challenge Thursday that sought to reign in super PAC spending.
Led by Representative Ted Lieu, a California Democrat, the plaintiffs highlighted 10 super PACs that knowingly took contributions in excess of limits set by the Federal Election Commission.
When the lawmakers complained administratively, however, the FEC unanimously determined the contributions were legal under SpeechNow.org v. FEC, a 2010 decision by the D.C. Circuit…
U.S. District Judge Emmet Sullivan threw out the case Thursday.
“Plaintiffs have the daunting task of persuading this court to rule inconsistently with the D.C. Circuit’s en bank opinion in SpeechNow,” the 23-page ruling says. “This court cannot do so.”
Sullivan noted the FEC’s based its decision to dismiss the administrative complaint entirely on the D.C. Circuit opinion in SpeechNow, not on a discretionary judgment call.
To declare its determination unlawful “would be tantamount to a declaration that binding precedent of the D.C. Circuit was unlawful,” the opinion says. “And that is not something this court is prepared to say.”
Lieu was joined as a plaintiff by Representative Walter Jones, a North Carolina Republican, and Senator Jeff Merkley, an Oregon Democrat, along with John Howe, a Republican and former member of the Minnesota Senate, and congressional candidates Zephy Teachout and Michael Wager.
Pacific Legal Foundation: Your shirt or your vote: Fighting to protect free speech at the ballot box
When Jillian Ostrewich entered her Houston, Texas, polling place in 2018, she expected the only decisions she’d face would be on the ballot. Instead, an election judge gave her an ultimatum: turn her shirt inside out or forfeit her vote. Similarly, in 2018, a Dallas-area election judge ordered Tony Ortiz to turn his “MAGA” hat inside out. Jillian and Tony have asked a federal judge to overturn Texas’ election apparel law because the First Amendment protects passive political speech in the polling place, just as it does in all public places.
The election judge took issue with Jillian’s yellow t-shirt with the words “Houston Firefighters” and a small AFL-CIO emblem. There was a ballot proposal to give the city’s firefighters a raise, which led some election judges to prohibit voters from wearing shirts with the firefighters’ union logo and even firefighter uniforms…
An election judge at his Dallas-area polling place ordered Ortiz to turn his hat inside out or face a misdemeanor charge. Election judges are given wide discretion, including the power to make on-the-spot judgments about which shirts are okay and which are not, as well as the power to issue arrest warrants.
This election law is still on the books in Texas. This despite a U.S. Supreme Court decision in Minnesota Voters Alliance v. Mansky (2018), which overturned a similar law in Minnesota and held that passive political expression at the polling place is protected by the First Amendment.
However, the Texas law is even worse than the statute struck down in Minnesota. In Texas, it’s a crime to wear campaign-related apparel, not just inside polling places but also within 100 feet of polling place entrances, areas considered traditional public forums, like parks, streets, and sidewalks. Texas also imposes criminal penalties on violating the law.
FIRE (FAN 202.2): The Retaliator in Chief: The Case Against Donald J. Trump
By Robert Corn-Revere
The law is clear that “a public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment.” In this case, President Trump’s many statements, made both as a candidate and once in office, illustrate his manifest purpose to retaliate for what he perceives to be unfair or unfavorable press coverage. They reveal the “official” explanations for actions targeting the press are pretextual, and show the actual purpose is to punish or intimidate those who question the Administration’s policies.
Such statements are relevant to assess the constitutionality of President Trump’s actions even in areas of expansive executive authority, such as control over immigration, an area considered “largely immune from judicial control.” Trump v. Hawaii, 138 S. Ct. 2392, 2417-18 (2018). The Supreme Court has held that such statements permit reviewing courts to “look behind the face” of an official action to determine the President’s actual purpose. (Id. at 2420) But while the President’s initiatives may survive scrutiny in areas where executive authority is at its zenith and is subject only to rational basis review, such is not the case where his purpose is to retaliate against an adversarial press protected by the First Amendment…
PEN America filed a lawsuit seeking a declaratory judgment that President Trump’s retaliatory acts to punish or intimidate journalists violate the First Amendment, and injunction barring him from directing any officer, employee, agency, or other instrumentality of the United States government to take any action against any person or entity to retaliate for the exercise of First Amendment rights. Pen American Center, Inc. v. Trump (S.D.N.Y.).
ACLU: The Dakota Access Pipeline Company Is Abusing the Judicial System to Silence Dissent
By Nicola Morrow
In a win for free speech, a federal court in North Dakota recently dismissed a baseless $900 million lawsuit brought by the Dakota Access Pipeline company against Greenpeace and a number of individual protesters. The company should have learned its lesson. Instead, it refiled the case in state court.
These meritless cases are textbook examples of “Strategic Lawsuits Against Public Participation,” or SLAPPs. This tactic is increasingly used by corporations to silence critics with expensive legal actions.
The pipeline company, Energy Transfer LP, filed the lawsuit in 2017 against Greenpeace organizations and others, including individual Standing Rock protesters. It relied on defamation law and the Racketeering Influenced and Corrupt Organizations (RICO) Act…
The lawsuit rested on two theories, neither of which passed muster in federal court. First, the complaint argued that Greenpeace and the other defendants were engaged in a conspiracy to defraud the public and defame the company. Second, it claimed that the defendants were engaged in an “illegal Enterprise” targeting the company and should therefore be held liable for any illegal actions committed by those who simply shared a common opposition to the pipeline.
These accusations, wild as they seem, would set a dangerous precedent if accepted: Not only might a different decision bankrupt defendants like Greenpeace – due to both litigation expenses and damages – and destroy the lives of the Standing Rock activists, but it could also erode the right of nonprofit organizations to speak out against corporate actions. Further, acceptance of the company’s legal arguments would make any advocacy group potentially liable for the conduct of its supporters and fellow travelers, even without any evidence of direct coordination.
Congress
Roll Call: House Democrats ready ethics overhaul for floor vote this week
By Kate Ackley
The House Rules Committee will take up the package Tuesday, setting the parameters for consideration on the floor. Lawmakers then will debate the measure on the House floor over the following days, with an expected vote on final passage Friday morning. Democrats and outside advocates pushing for the bill say they’ll be on high alert for GOP attempts, including amendments and motions to recommit, that could tank the overhaul…
Republicans also say it could inhibit political free speech, and they criticize Democrats for rushing the bill for political reasons.
The GOP has also criticized the measure for its potential costs to taxpayers. The Congressional Budget Office estimated Friday that Congress would need to appropriate nearly $2.6 billion over six years to fund the provisions in the bill.
Rep. Rodney Davis of Illinois, the top Republican on the House Administration Committee, which marked up the bill last week, said the CBO had “underestimated” the cost of the legislation, saying Democrats had crafted it “for the purposes of hiding costs from the taxpayers.”
“H.R. 1 is a costly bill that federalizes the nation’s election system, weakens safeguards to voting and registration practices that open the door to fraud, misuses taxpayer funds, attempts to limit free speech, and creates a shell fund of taxpayer subsidies to finance politicians’ campaigns,” Davis said in a statement sent from his spokeswoman.
Office of U.S. Senate Majority Leader Mitch McConnell: McConnell Previews House Vote on Democrat Politician Protection Act
Under H.R. 1, a newly-partisan FEC would be empowered with sweeping new authority to regulate speech that is deemed to be ‘campaign-related.’ New rules applied to the mere mention of a politician’s name, new limitations on advocacy groups’ ability to speak on substantive issue, and strict new penalties for when private groups of citizens cross the lines Washington Democrats have drawn…
So not only does H.R. 1 deploy stricter regulations on political speech — it also ramps up requirements when private citizens engage in it. Even small expressions of First Amendment rights could require extensive documentation. And in many new cases, forced public disclosure of your private activities would be required…
[H]ere’s what the ACLU wrote in a letter to House Democrats just a few days ago: Quote: ‘[T]here are … provisions that unconstitutionally impinge on the free speech rights of American citizens and public interest organizations… [it] strikes the wrong balance between the public’s interest in knowing who supports or opposes candidates for office and the vital associational privacy rights guaranteed by the First Amendment.’ They go on: ‘[H.R. 1] interferes with that ability by impinging on the privacy of donors to these groups, forcing the groups to make a choice: their speech or their donors. Whichever they choose, the First Amendment loses.’ …
And their bill even supports a Constitutional amendment to take away First Amendment protections. And even if their proposal does chill the exercise of the First Amendment — fear not, House Democrats have a plan to make sure there’s still plenty of activity come election season.
It’s a taxpayer-funded stimulus package for campaign consultants and political candidates. Democrats want to sign taxpayers up for a six-times matching subsidy for certain political contributions.
Washington Times: ACLU blasts Democrats’ election bill as unconstitutional
By Stephen Dinan
The American Civil Liberties Union dealt a blow Monday to Democrats’ new election overhaul legislation, saying the bill does too much damage to the First Amendment and the storied rights group cannot support it.
ACLU officials said they support parts of the bill, such as making it easier to register to vote, but said the legislation attempts to control even the mere mention of a politician, which goes too far.
“They will have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day,” the ACLU’s national political director and senior legislative counsel wrote in a 13-page letter announcing opposition…
The ACLU said it objected to lobbying restrictions Democrats wrote into the bill, saying they’re so broad they could prevent a former official from communicating with a senior government policymaker in any agency for up to eight years.
The group also said new disclosure rules are so broad as to be unworkable, preventing independent organizations from taking political action based on something they’d read or talked about even before someone became a candidate.
Daily Caller: Mcintosh: Pelosi Prioritizes Crackdown on Free Political Speech
By David McIntosh
Democrats in Congress have proposed new legislation to stifle free speech, especially political speech, by limiting your right to criticize elected officials…
Each Congress uses the bill number H.R. 1 as a symbolic measure on its agenda and compass for the direction it wishes to take America…
The latest, and perhaps most dangerous proposal yet, is the so-called “For the People Act,” H.R. 1. This dangerous legislation is anything but “for the people.” A more apt title would be “For The Politicians.” …
The legislation represents the latest attempt by Washington bureaucrats to control what voters know and hear during an election. It shreds constitutional speech rights by banning political speech by certain disfavored groups. It seeks to regulate groups that work to inform voters on what Congress is doing. And it would politicize election regulations by eliminating the current bipartisan composition of the Federal Election Commission…
The American right to criticize our elected officials with some degree of anonymity is what separates us from China, Venezuela and Cuba. But this legislation would take away political anonymity for many by drastically changing reporting requirements for Americans exercising political speech.
Finally, it includes a major provision providing political welfare for politicians. It would provide candidates with taxpayer subsidy – $6 for every $1, which means that taxpayers’ money would fund even more of what they disagree with, including candidates for federal office…
By limiting the way we exercise political speech and petition government, our First Amendment rights become First Amendment restraints. These are some of the most important reasons that H.R. 1 should be soundly defeated and voters should reject any politician who supports this “For the Politicians” monstrosity.
Trump Administration
Reason: Trump Vows That an Executive Order on Campus Free Speech Is Coming ‘Very Soon’
By Robby Soave
On Saturday, President Trump promised CPAC 2019 attendees that he would soon sign an executive order to force universities and colleges to do a better job protecting the free speech rights of students.
“Today I am proud to announce that I will be very soon signing an executive order requiring colleges and universities to support free speech if they want federal research dollars,” said Trump.
The White House declined to answer The New York Times’ questions about the matter. But an official with knowledge of the executive order confirmed to Reason that a draft exists. Indeed, the plan is to penalize universities that do not protect free speech by taking away their federal grants.
To justify the executive order, Trump referenced an incident involving Hayden Williams, a young conservative activist who was punched in the face at the University of California, Berkeley, while helping with recruitment for the conservative advocacy group Turning Point USA. The police arrested a suspect on Friday. Neither Williams nor his presumed assailant are Berkeley students.
Whether free speech is currently in crisis on college campuses is a hotly debated issue. There are plenty of examples of students at a number of campuses enduring free speech violations-often at the hands of other students or college administrators-over the years, though evidence of a systemic or worsening epidemic is not as compelling.
Candidates and Campaigns
Politico: Campaign finance reformers call on Jay Inslee to disavow 2020 super PAC
By Maggie Severns
Inslee joined the presidential race last Friday, but days before he launched his bid, the former political director of the Democratic Governors Association – which Inslee chaired in 2018 – announced he was forming a super PAC, Act Now on Climate, to support Inslee for president. The group, which will disclose its donors later this year, quickly spent a quarter-million dollars on pro-Inslee digital advertisements.
The letter to Inslee, sent by the group End Citizens United, warns that super PACs founded to support a single candidate are “designed to serve as an arm of the campaign” and are frequently used to exploit gray areas in campaign finance law.
“Even worse than super PACs themselves are single-candidate super PACs,” the letter says. “Often, politicians exploit loopholes in the law to find ways to coordinate with them, including sending their top political operatives to run these super PACs.” …
The End Citizens United letter comes amid competition in the Democratic presidential primary to ground campaigns in grassroots. Sen. Bernie Sanders’ legion of supporters contributed $10 million for his campaign in a week, while Sen. Elizabeth Warren recently announced she would not hold closed-door fundraisers with wealthy donors.
Others have also disavowed super PAC help, including Sen. Cory Booker – though a wealthy Booker supporter has started a super PAC supporting the New Jersey senator anyway…
Inslee should “publicly disavow this effort and any other effort to create a single-candidate super PAC that serves as a shadow support to your campaign,” the End Citizens United letter says. “We hope you will strive to run a campaign that demonstrates to primary voters that you will put people before special interests.”
The States
New Jersey Globe: Assembly drafting new dark money bill, Coughlin says
By Nikita Biryukov
Assembly Speaker Craig Coughlin on Thursday said his chamber would not back a donor disclosure bill that the Senate passed last week.
“We’re still putting together a bill that at least the Assembly can agree on,” Coughlin said, adding that there was no timeline for when such a measure might reach the Assembly floor.
The so-call dark money bill would create donor disclosure requirements for independent expenditure groups attempting to influence the outcome of an election or public question as well as those supporting or opposing a given piece of legislation.
The bill is largely meant to increase transparency in 501(c)4s like the Murphy-aligned New Direction New Jersey, but amendments to the bill that some say have singled out the group and Essex County Freeholder Director Brendan Gill, a close Murphy ally, have renewed tensions between the governor and Senate President Steve Sweeney…
Coughlin has often played the role of peacekeeper between the state’s other two top Democrats, and it appears he intends to do so again, though he declined to comment when asked if he was holding the bill for that reason.
It is possible the Speaker is holding the bill so that other concerns about the measure can be addressed.
Several groups told a Senate panel last month they worried about a provision in the bill that would allow unlimited money transfers between county political parties during primary elections…
“We do what we do in the Assembly. We try to be thorough, we try to be thoughtful. Not to say the Senate wasn’t. They were,” Coughlin said. “They did a good bill that reflects a lot of good things. I’m not sure our priorities four-square with theirs in this instance, so we’re going to work through it.”
Washington City Paper: Will D.C.’s Publicly Funded Elections Program Be Ready for the 2020 Election?
By Mitch Ryals
It’s been more than a year since the D.C. Council unanimously passed the “Fair Elections Act of 2017,” which establishes a publicly funded election program in the District.
But the start of the 2020 election cycle is right around the corner, and the Office of Campaign Finance, which is in charge of overseeing public elections, doesn’t have the program up and running.
During a committee oversight hearing last week, OCF director Cecily Collier- Montgomery revealed that the office has not procured the technology for the e-filing system that tracks and verifies candidates’ campaign contributions. She said the office has not filled six of the vacant positions related to the Fair Elections Act, and expressed confusion over how much money is actually available to candidates in the budget for this fiscal year…
The public elections law took effect after the November 2018 election and was fully funded by the Council to the tune of $2.8 million this fiscal year.
During the oversight hearing last week, Collier-Montgomery said the office needed about $400,000 more for the e-filing system that will support the public elections program. OCF had originally estimated that cost to be about $62,000, then upped it to $90,000 last year…
Even with the funds identified, OCF hasn’t procured a new e-filing system yet, Collier-Montgomery said, which is the backbone to the whole program. In the meantime, they will pay to develop a second, temporary system that she “hopes” will be up and running by July 31, the next filing deadline for the 2020 election cycle…
Finally, there’s the issue of the regulations. Although the public elections program is technically active, and candidates could sign up now, the regulations that spell out how to comply are not finalized. Only a proposed version is published in the DC register.
