In the News
The Hill: Former FEC Commissioner Ann Ravel’s ugly exit
By Paul H. Jossey
In Washington, Ravel tried to remake the FEC into FPPC-East. A bureaucrat-dominated colossal that overreached, bullied, and pursued “social goals” in the name of democratic integrity. But Washington isn’t California…
Since 2007, the Supreme Court has deregulated much campaign finance on constitutional grounds. What remains are often hard cases where fundamental philosophical differences arise.
Those who file complaints to trigger FEC investigations have the right to appeal to lifetime-appointed judges in the event of 3-3 ties. If the commission dismisses a complaint, even by a tie, the judiciary can order the FEC to act on the case or provide an explanation acceptable to the court.
Strong democratic oversight also protects the system. If the political branches shared Ravel’s concerns, they could restructure the agency. Some in Congress do want the FPPC model. But their inability to garner requisite support is a matter of politics not agency dereliction. Put simply, people above Ravel’s rank don’t share her sky-is-falling view.
Free Speech
New York Times: How the Internet Threatens Democracy
By Thomas B. Edsall
As the forces of reaction outpace movements predicated on the ideal of progress, and as traditional norms of political competition are tossed aside, it’s clear that the internet and social media have succeeded in doing what many feared and some hoped they would. They have disrupted and destroyed institutional constraints on what can be said, when and where it can be said and who can say it.
Even though in one sense President Trump’s victory in 2016 fulfilled conventional expectations – because it prevented a third straight Democratic term in the White House – it also revealed that the internet and its offspring have overridden the traditional American political system of alternating left-right advantage. They are contributing – perhaps irreversibly – to the decay of traditional moral and ethical constraints in American politics…
The use of digital technology in the 2016 election “represents the latest chapter in the disintegration of legacy institutions that had set bounds for American politics in the postwar era,” Nathaniel Persily, a law professor at Stanford, writes in a forthcoming paper, “Can American Democracy Survive the Internet?”
Futurism: Amazon Is Convinced Alexa Has First Amendment Rights
By Dom Galeon
Amazon is protesting a warrant requiring it to turn over audio files taken from an Echo device on the grounds that its Alexa AI’s speech be protected under the First Amendment…
An Amazon Echo is being viewed as a key piece of evidence in an ongoing murder investigation in Arkansas dating back to 2015. Police want to access the voice recordings from the device’s built-in virtual assistant Alexa. They’ve issued a warrant for the Echo audio covering a 48-hour period from November 21, 2015 through the following day, as well as for the device’s subscriber and account information.
Amazon obliged the warrant’s request for the subscriber information and purchase history, but Amazon protested the release of the audio recordings in a lengthy argument against the warrant that it filed last week. In the 90-paged memorandum, Amazon attempted to quash the warrant with the argument that both the human user and Amazon’s artificially intelligent (AI) virtual assistant Alexa have First Amendment rights that protect their speech.
FEC
Pillar of Law: A Goodbye to Federal Election Commissioner Ann Ravel
By Stephen Klein
In a panel discussion following Ravel’s remarks, Larry Noble of the Campaign Legal Center opined that “I think it’s fair to criticize a commissioner on their positions; that’s fair. But when you start personally attacking them, and personally threatening them, then I think it gets into dangerous ground.”
Well, does questioning one’s qualifications to practice law fit the bill? How about claiming fellow commissioners would be held in contempt if their arguments were made in court? Writing off fellow commissioners “about a week” into a years-long federal appointment? Claiming they are not independent appointees but are pawns of Senator Mitch McConnell? Taking to television and the papers to complain so often that even a top Democratic campaign finance attorney says it shows an “endless desire to be portrayed in the press as a profile in courage”? What’s left, bar complaints?
Though her rhetoric is par for the course in the campaign “reform” lobby, of which she is sure to become a feature, Ravel’s tenure was a stain on the Federal Election Commission. In the future, there will be many serious discussions and disagreements about campaign finance law. With the operative word being “serious,” I do not expect Ravel to play a part in any of them.
Huffington Post: Trump Administration Sets Off Alarm Bells By Pulling Nominees To Regulatory Commissions
By Sam Stein and Ryan Grim
The Trump administration has begun pulling pending nominees from various federal commissions in a manner that has left Hill Democrats concerned that the practice of bipartisan inclusion on regulatory panels will be upended…
By statute, these five- and six-member commissions can have no more than three members from the majority party. For six-member commissions, that assures bipartisan cooperation – or, as has happened at the FEC, utter gridlock….
But Democratic sources on the Hill worry that the Trump administration has conceived of a way to get around these norms. Although it can’t stack commissions with more Republicans, it can replace Democrats with registered Independents who are ideologically conservative. One counsel to a Senate Democrat said the administration “may actually be able to do this legally.” Others cautioned, that it’s not yet clear if Trump will go down this path…
It wouldn’t be without cost, however. Depriving the Senate of the ability to weigh in on the pair of nominees in a bipartisan way would be a major institutional blow – and the effort could falter if opposed by a handful of Republicans with an affinity for the institution.
Supreme Court
CNN: Why Gorsuch could lead court in wrong direction
By Richard L. Hasen
The court will soon have the opportunity to revisit the constitutionality of contribution limits, as it faces an appeal brought by Jim Bopp, the lawyer who is behind Citizens United. The case asks the court to overturn its 2003 decision in McConnell v. FEC upholding the limits on six- and seven-figure “soft money” contributions…
Scalia believed the soft money ban was unconstitutional. He, like Justice Clarence Thomas and McConnnell, contended that contribution limits should be subject to strict scrutiny and almost always struck down. Gorsuch likely thinks the same thing. He went out of his way to write a concurring opinion in a 2014 campaign finance case before the 10th Circuit to express his belief that current law already applies something “pretty close” to strict scrutiny to review contribution limits, and there are good arguments to apply full strict scrutiny. But even if he does not, he could follow the chief justice’s McCutcheon opinion and strike the limits down anyway.
The court with Gorsuch, like a court with Scalia still on it, seems poised to kill off what’s left of McCain-Feingold and potentially open the door to candidates taking unlimited contributions from individuals and perhaps even corporations.
Congress
The Hill: Dems heckle Trump’s ‘drain the swamp’ line
By Jonathan Easley and Megan R. Wilson
Democrats gathered on the House floor for President Trump’s joint address to Congress broke out in muted laughter when the president said he had moved to rid Washington, D.C., of corrupting influence.
“We have begun to drain the swamp of government corruption by imposing a five-year ban on lobbying by executive branch officials and a lifetime ban on becoming lobbyists for a foreign government,” Trump said.
As he spoke, laughter and sarcastic noises broke out among Democrats in the chamber, who have accused Trump of filling his Cabinet with billionaires and rolling back regulations meant to keep Wall Street in check…
While Trump has imposed lobbying restrictions on administration officials once they leave, he will allow lobbyists to join the government, including if they would be working on the same policy areas they did in the private sector.
The Media
Just Security: 9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, others
By Ryan Goodman
On Friday, the White House barred specific news organizations from attending a press briefing by spokesman Sean Spicer. Among the organizations excluded from the question and answer session were news outlets that President Donald Trump has singled out for criticism-including Buzzfeed, CNN, the New York Times, and Politico. The White House Correspondents’ Association stated that its board is “protesting strongly” against the action.
Many in the media have asked whether the White House actions were unconstitutional. I asked some of the most highly respected First Amendment law experts across the country. Here’s what they said…
The States
East Oregonian: Bills give scrutiny to small donors, provide public campaign financing
By Claire Withycombe
In Oregon, a campaign donor must give a total of $100 in a calendar year to an individual candidate or committee before his or her name and address become publicly available in a database of campaign finance transactions.
One proposal lawmakers are considering would eliminate that limit, making the provenance of all donations public. Another would create a publicly funded donation-matching system intended to incentivize small donor participation.
Both were heard by the House Committee on Rules Tuesday afternoon.
Under the public finance proposal, sponsored by Rep. Dan Rayfield, D-Corvallis, eligible candidates for office who agree to only take small donations would receive six times the amount of each contribution from state government – though the total contribution per candidate would be capped.
U.S. News & World Report: Senate Panel Rejects Disclosure of Top Advocacy Group Donors
By Associated Press
A state Senate panel has rejected new campaign finance rules that would have forced nonprofit advocacy groups to reveal top donors if the groups contributed significant sums to ballot measure campaigns.
The Senate Judiciary Committee voted 5-2 Wednesday to kill the proposal.
It would have required the disclosure of the 50 largest contributors to such groups, including labor organizations, business leagues and social welfare organizations, that gave $25,000 or more in a year to a South Dakota ballot measure committee.
Critics have argued that South Dakota residents have the right to support causes they believe in without fear of harassment.
House Speaker Mark Mickelson, the legislation’s main sponsor, has said that the identity of the messenger matters as much as the message.
South Dakota Public Broadcasting: A Closer Look At SB 54 And Campaign Finance Reform
By Lee Strubinger
Senate Bill 54 is a measure that’s meant to rework the state’s campaign finance requirements. The bill narrowly passed through committee and was also a close vote in the senate.
The bill now moves to the house where many are saying it’s liable to further be amended.
SB 54 is the result of a summer study session on campaign finance in South Dakota. Secretary of State Shantel Krebs helped spearhead the task force and brought a bill to the legislature to clarify state statute on contribution limits while also hoping to increase disclosure requirements…
“I don’t think you’re going to see 54 in its final form until the final days. Because I know there’s still-there’s not a consensus yet. Again, essentially we’re out of that process,” Krebs says. “We provided the working document and the original form of the bill… was more disclosure, more reporting-I wanted more reporting-more reporting to be more often from statewide candidates and I wanted more information from those who were donating.”
Mississippi Clarion-Ledger: House amends, passes Senate campaign finance bill
By Geoff Pender
The House amended, then passed a Senate campaign-finance reform bill after brief debate on Tuesday, with House leaders saying they’re hopeful the Senate will agree to the compromise and send it on to the governor.
The House inserted some of the language from its own campaign finance reform bill authored by Speaker Philip Gunn, then passed it back to the Senate on a 102-12 vote. Both bills would restrict politicians’ use of campaign donations for personal expenses, a practice that is restricted or banned in most states and by the federal government. The Senate Elections Committee had stripped all the House language from the House bill and inserted its own…
The House also changed the Senate bill to have the state Ethics Commission oversee and enforce campaign finance regulations. The Senate version had less enforcement teeth and left most oversight with the secretary of state’s office. Enforcement of Mississippi’s current lax campaign finance rules has been nearly nonexistent.
Kansas City Star: Campaign finance watchdogs disturbingly toothless
By Editorial Board
The FEC’s job is to curtail some of the most egregious abuses of the current system. But because its membership is evenly split, the commission usually deadlocks on big campaign finance issues, agreeing to pursue only modest fines against violators, sometimes years after a transgression…
The do-nothing approach isn’t limited to the FEC. In Kansas, the Governmental Ethics Commission stayed largely on the sidelines when a federal grand jury investigated donations to Gov. Sam Brownback’s campaign in 2014.
In 2015, the Center for Public Integrity gave the state an “F” for ethics enforcement.
Missouri’s Ethics Commission isn’t much better: The state got a “D-” on ethics integrity from the center. When a dark money group gave Eric Greitens $2 million last year, the ethics commission found “no reasonable grounds” that accepting the secret money broke Missouri law.
