New from the Institute for Free Speech
A Sunshine Week Reminder: Transparency is for Government; Privacy is for People
By Alex Baiocco
Open government and transparency laws empower private citizens to extract previously undisclosed information from the government. Donor disclosure laws have precisely the opposite effect. They empower the government to extract private information from citizens as a condition of participating in the political process…
Transparency has nothing to do with the government publicizing the political activity and associations of private citizens. Rather, it is about citizens having access to information about the inner workings of government. Transparency and free political speech share a common goal – empowering citizens to keep their government in check. Burdensome disclosure requirements that restrict that process by chilling speech and civic engagement harm, not help, democracy.
So, when you come across arguments in favor of “transparency” or “sunshine” laws that actually empower the government to keep a public record of private citizens’ First Amendment-protected activity, remember that transparency is for government, and privacy is for people.
Supreme Court
Forbes: Why The Supreme Court Should Strike Down Compelled Speech In California
By Brian Miller
One of the many wonderful things about free speech is that it allows political minorities to actively live out their beliefs. Even when a group has no chance of gaining political power, truly liberal societies allow them the freedom to spread their message and live according to their own principles…
Regardless of what one thinks of NIFLA’s views, the idea that the government can compel the speech of an organization – simply because it dislikes their motivating belief – should be offensive to liberal and constitutional values. And that is exactly what happened in California. The legislature’s committee report made it clear that they believed California was “unfortunately” home to so many crisis pregnancy centers that “aim to discourage and prevent women from seeking abortion.”
What California considers “unfortunate” is the very thing the First Amendment protects: speech and activism. California is within its rights to choose a policy and implement it. But it cannot compel those who dissent to speak the state’s message…
The Court will hear arguments on March 20th.
Cato: Won’t You Save Me First Amendment Grief, San Francisco?
By Ilya Shapiro and Reilly Stephens
San Francisco bans signage advertising “off-premises” activity, but not “on-premises” advertising…
But advertising is a form of speech protected by the First Amendment, and if the government wants to places limits on that speech, it must adhere to the constitutional limits on its own power. A company called Contest Promotions has challenged this law. The U.S. Court of Appeals for the Ninth Circuit ruled in the city’s favor, so now the company asks the Supreme Court to take its case.
At the core of the First Amendment is a principle of non-discrimination. That is, the government can place certain limits on speech in public places, but it may not preference some speakers over others based on the speech’s content or viewpoint. The content-based distinction San Francisco makes is precisely the sort of discrimination the constitution doesn’t abide. Unfortunately, the Supreme Court has made something of a muddle in this area. In Central Hudson v. Public Service Commission (1980), it set forth a special test for what is “commercial” speech, such as advertising, which it deemed less protected than other speech. It did this presumably to be able to better police fraud-which isn’t protected regardless-but that led to an unworkable standard and a litigation mess that lower courts have been unable to clean up.
Cato has now joined the Pacific Legal Foundation to file a brief in support of Contest Promotions, urging the Court to take up the case and reconsider its blunder in Central Hudson.
The Courts
By Scott Shackford
[T]he ACLU says the section of code Morris is accused of violating does not actually exist. The city’s zoning laws do not have a section on prohibited signs and does not have a blanket prohibition on murals in historic districts. Morris sent a letter to the city asking for clarification and received no response.
The city does have rules for putting up murals, even if they apparently couldn’t explain them to Morris when he asked for them. The rules themselves present other legal issues. The city requires murals to go through an extensive advance review process that includes approval of the contents of the mural. Failure to properly navigate the city’s approval process can lead to minimum fines of $500 and a maximum of 150 days of jail time.
The ACLU argues that “any person who exercises her right to free expression by painting a mural on her property-without first obtaining government permission-faces criminal punishment. This is, by definition, a prior restraint on speech.” They further note that the mural regulations are selectively enforced. A mural by Yoko Ono was recently painted on the side of a museum without going through any sort of permitting process.
The ACLU also argues this permitting system lacks due process, has undefined standards, and lacks a transparent process by which people get murals approved. Essentially the lawsuit argues that people who want to put up murals are subject to the whims of unaccountable government officials.
FEC
Center for Responsive Politics: FEC proposes new rules for digital ad disclosures
By Megan Janetsky
At the meeting, commissioners presented two proposals that would require new disclaimers on “express advocacy” ads on digital platforms. “Express advocacy” ads advocate for the election or defeat of a candidate and makeup just a small percentage of online ads.
The commission voted 4-0 to open 60 days for public comments and have scheduled a June 27 public hearing on the matter.
The two proposals vary in their requirements for the size and content of disclaimers, among other differences. One proposal would also define the term “internet communication.” The measures would also only cover a small portion of political advertising on digital platforms and likely not affect the types of ads that allowed for the harnessing of Facebook and other digital platforms by Russian actors in 2016.
However, Democrat Ellen Weintraub, the FEC’s vice chairwoman, called the commission’s vote a “step in the right direction” …
Republican Commissioner Matthew Petersen said they were “threading the needle,” trying not to overregulate but also working toward greater transparency.
“We have a strong interest in ensuring that we are not impeding the further development of the internet and technology as a means of allowing and facilitating political communication,” Petersen said, “but at the same time ensuring that the disclaimer requirements … are also being met.”
Broadcasting & Cable: FEC Proposes New ‘Net Political Ad Disclosure Rules
By Jon Eggerton
Choice A, backed by Democrats, would be to apply the full disclaimer requirements that apply to radio and TV political ads to internet ads with audio or video components and current print disclaimers to the graphics and text in internet ads. Finally, it would include a provision for some smaller ‘net communications–like banner ads–to satisfy the disclosure requirement via an “adapted disclaimer.”
Such “adapted disclaimers” could include “a abbreviated disclaimer on the face of the communication in conjunction with a technological mechanism that leads to a full disclaimer.” …
Choice B, favored by Republicans, would treat internet communications differently from traditional media. It would require disclaimers to be clear and conspicuous and have the same general content requirements, but without the requirements that apply to TV, radio and print. It would require radio and TV political ads distributed over the internet simply to meet general disclaimer requirements that apply to all public communications requiring disclaimers, rather than the disclosures that apply when they are broadcast.
Option B is based on the premise that the internet is a unique medium with unique challenges, thus the general requirement without the “stand by this ad’ requirement of TV and radio ads.
Congress
The Hill: GOP’s new tax law encourages campaign donor secrecy
By Ellen P. April
As a result of these changes, estimates of the percentage of taxpayers who will itemize has fallen to somewhere between 5 percent and 10 percent. The vast majority of taxpayers will benefit more from taking the standard deduction…
The nonpartisan Tax Policy Center estimates that charitable contributions will decline by about $12.3 billion to $19.7 billion per year. Charitable organizations most dependent on the middle class, which includes organizations that provide social services, are now likely to have few itemizers among their donors.
A number of nonprofit law experts believe that those interested in social services and other activities supported by the middle class may well decide to form new section 501(c)(4) organizations or encourage contributions to an existing section 501(c)(4) organization. (The National Rifle Association, the Sierra Club and the ACLU are existing among the many groups that have both 501(c)(3) and 501(c)(4) arms).
For donors not itemizing the deductions, there is no tax disadvantage to giving to a section 501(c)(4) organization instead of a section 501(c)(3) entity. But there are advantages. Tax-exempt section 501(c)(4) organizations can not only do good and lobby legislatures freely on issues important to them, but give considerable support to candidates for election who share their positions on key issues.
Independent Groups
Washington Post: Top GOP super PAC urges donors to step up direct support for candidates
By Michelle Ye Hee Lee
The Republicans’ central Senate super PAC is making a major push to ask its donors to give directly to GOP Senate candidates, including by enlisting top GOP strategist Karl Rove to solicit donations.
There is heightened urgency for candidates to step up their fundraising game after Tuesday’s 18th Congressional District race in Pennsylvania, said officials from the Senate Leadership Fund…
GOP outside groups poured heavily into the race – a reliable Republican district that President Trump carried by 20 points in 2016. Conservative super PACs and party committees spent about $10.7 million to boost GOP candidate Rick Saccone and make up for his lackluster fundraising, but Democrat Conor Lamb maintained a narrow lead…
“In our view, one of the most urgent takeaways from PA-18 special election is that a candidate who underperforms in fundraising will underperform on Election Day,” said Steven Law, the super PAC’s president and a former chief of staff to Senate Majority Leader Mitch McConnell (R-Ky.), in an interview Wednesday. “Outside groups can help make up the difference, but if the candidate doesn’t have the resources to make their own case to the voters, no outside groups can do that for them.”
The States
Bend Bulletin: Oregon doesn’t need campaign finance limits
By Editorial Board
A Portland-based group is bent on changing the state’s free-speech protections found in Article I, Section 8. The group, led by Ron Buel and B. Elizabeth Trojan, hopes to place a measure on the 2020 general election ballot that would give the Legislature and the people the right to limit campaign contributions and expenditures pretty much as they see fit. Legislative changes would require a three-fourths majority vote to become law.
Oregonians don’t need that. Though we’ve voted on changes to the free-speech article at least three times since the mid-1990s, two, including one campaign-finance measure, were rejected outright; a third was overturned on appeal to federal court.
Should the “Get Big Money Out of Oregon Elections III” proposal make it to the ballot, voters should reject it again…
Oregonians’ right to free speech includes our right to give as much as we wish to candidates and causes for a reason. The men and women we elect and the things they stand for can have more impact on daily life in this state than almost anything else we can think of.
New Boston Post: It’s Time To Close the Union Loophole
By Paul F. Gangi
Last week, the Massachusetts Supreme Judicial Court heard oral arguments challenging the constitutionality of the union loophole in Massachusetts.
The case, 1A Auto v. Sullivan, stems from a lawsuit originally filed by two businesses, one owned by Massachusetts Fiscal Alliance founder Rick Green, and the other owned by a member of the MassFiscal board of directors, Mike Kane.
If you’re familiar with Massachusetts campaign finance laws, you know why they filed the suit. Our state’s campaign finance laws are heavily biased against employers, and the union loophole is an egregious example. It allows unions, including those from as far away as California and Hawaii, to contribute up to $15,000 to a single candidate in Massachusetts local elections.
In contrast, individual residents of Massachusetts can donate a maximum of only $1,000, and businesses are locked out from contributing all together. Additionally, unions are allowed to contribute indirectly to help campaigns through third-party political actions committees, while employers are prohibited from this activity. Massachusetts is one of only six states in the country that give this type of advantage to unions, and of those six it’s the most lopsided in its favoring of unions.
Spokesman-Review: Senate panel holds informational hearing on campaign finance reforms
By Betsy Z. Russell
The Senate State Affairs Committee held an informational hearing this morning on SB 1337, the latest version of legislation proposed by an interim working group on campaign finance reform. The bill, co-sponsored by Idaho Secretary of State Lawerence Denney and Ada County Chief Deputy Clerk Phil McGrane, recasts the earlier House version of the bill to make it easier to read and see where the changes are from current law, and also softens some of the new requirements in the earlier bill. Overall, the measure requires more frequent and more detailed campaign finance reporting, extends reporting requirements to local elections, and requires entities doing independent campaign expenditures and out-of-state entities donating large sums to Idaho PACs or candidates to identify the source of the money.
“I think this is an easy way for us to raise our transparency scores nationally,” McGrane told the senators. “Our efforts here are not to be punitive to those who make innocent mistakes. … The purpose of the Sunshine Law is to make this information easily accessible so we know what’s going on in the state with regards to money.”
Kansas City Star: Ethics complaint filed against Hawley
By Lindsay Wise and Jason Hancock
A St. Louis attorney has filed an ethics complaint against Missouri Attorney General Josh Hawley for not disclosing free legal representation from a well-connected Washington D.C. law firm in his state campaign finance reports or personal financial disclosures.
The complaint, dated Tuesday, was prompted by a report in The Kansas City Star that Hawley had received pro bono representation from Cooper & Kirk PLLC, a Washington-based law firm, during his 2016 campaign for attorney general, said Jane Dueker, a veteran Democratic attorney and lobbyist who was chief of staff for former Missouri Gov. Bob Holden…
Hawley’s Senate campaign has said Missouri law doesn’t require him to disclose Cooper & Kirk’s legal services.
Thursday, Hawley spokeswoman Kelli Ford said, “The Democrats’ campaign by litigation continues. This is one of multiple, frivolous legal actions the Democrats have filed.”
