In the News
National Review: Democrats’ McCarthyist ‘For the People Act’
By Akhil Rajasekar and Bradley A. Smith
Longstanding federal law requires disclosure of the names, amounts, employment, and addresses of contributors to candidates’ campaigns. Through H.R. 1, however, Democrats seek new, unprecedented disclosure of citizen support for non-profit advocacy groups, think tanks, trade and professional associations, and charities if those organizations should – even months and sometimes years after the contribution is made – make public communications that might be deemed to “promote, support, attack, or oppose” a politician. This definition would subsume communications that, say, criticize a politician’s vote on a bill or question a candidate’s ethics. It would include most discussion of public affairs.
Democrats are attempting to sell this parade of disclosure requirements as an urgent question of political transparency. “Transparency,” they argue, is inherently beneficial, and thus there is no cost to its expansion. This is a misguided narrative.
A study by University of Missouri professor Jeffrey Milyo suggests that mandatory disclosure of political activity would result in a drastic decline in political participation. Indeed, nearly 90 percent of the study’s participants – all college-educated – indicated that intricate disclosure requirements and threats of legal penalties would deter them from engaging in political activity.
Indeed, as a matter of first principle, we should question whether people are entitled to knowledge of others’ political associations and contacts. It is often argued that people have a right to know who is trying to influence them. In fact, as a general rule, they don’t. People have a right to participate in public affairs, but they have no right to know the details of how their fellow citizens, or groups of voluntarily associated citizens, choose to exercise that right.
The Courts
Election Law Blog: D.C. Circuit, on 2-1 Vote, Upholds FEC Donor Disclosure in John Doe v. FEC Case
By Rick Hasen
You can find the majority and partially dissenting opinion at this link.
Supreme Court
Washington State Wire: Freedom Foundation Appeals Campaign Finance Ruling to U.S. Supreme Court
By Jeff Rhodes, Managing Editor at Freedom Foundation
This press release was provided by the Freedom Foundation…
The original lawsuit dates back to 2014, when attorneys for the Freedom Foundation – a West Coast-based nonprofit think tank – represented citizen activists in the Washington cities of Sequim, Chelan and Shelton following their unsuccessful efforts to place labor reform initiatives on their communities’ local election ballots…
[U]nions then filed a complaint with the Washington Attorney General’s Office alleging the Freedom Foundation was required to report its legal assistance to the activists as a campaign contribution…
A Thurston County Superior Court judge in 2016 rejected the AG’s arguments, but his ruling was later overturned by the Court of Appeals. When the Freedom Foundation challenged that decision in Washington State Supreme Court, the overwhelmingly liberal justices in January handed down a 5-4 ruling siding with Ferguson and the unions.
“This is clearly a freedom of speech issue,” said Freedom Foundation Senior Litigation Counsel Eric Stahlfeld. “Even the justices who ruled against us conceded the wording of the Fair Campaign Practices Act concerning when an initiative becomes subject to the law is “at odds with” local initiative procedures. Relying on this ambiguous provision to claim a local initiative not yet on the ballot is subject to Washington’s election laws does not give fair notice to citizens who want to exercise basic First Amendment freedom to participate in local government activity.”
In her strongly worded dissent, Justice Gordon McCloud noted:
“The majority resolves that ambiguity against the speaker and in favor of the government. But resolving an ambiguity in a statute implicating free speech against the speaker and in favor of the government violates controlling precedent of this court and of the United States Supreme Court.”
Congress
CNN: Pelosi and Hoyer: It’s been a busy 100 days for House Democrats
By U.S. House Speaker Nancy Pelosi and Majority Leader Steny Hoyer
In November, the American people elected Democrats to take back the reins of power in the House of Representatives and put it back to work on their behalf. In our first 100 days in the majority, we have begun to deliver on that promise. With a dynamic, diverse and energized freshman class of 63 new members, Democrats are moving ahead with our agenda for the people: … clean up corruption in Washington so that the government works for the public interest, not the special interests…
In the first days of the 116th Congress, House Democrats moved swiftly to implement new rules to make the legislative process more open and transparent and hold elected officials to higher ethics standards. In the weeks that followed, led by Rep. John Sarbanes and many of our freshmen, Democrats passed H.R. 1, the For the People Act.
This major legislation puts power back into the people’s hands by ending the unrestricted influence of big money in our politics, promoting national redistricting reform, and requiring new standards of transparency from those who serve in government…
House Democrats have taken action for the people. This is what we’ve done in our first 100 days. It is what we will continue to do in the weeks and months ahead.
By Mike Masnick
Most of the hearing went pretty much as planned, with the usual nonsense. Cruz, once again, misrepresented the nature of Section 230 of the CDA and also made noises about changing it. He also threatened other attacks on social media companies, including antitrust…
As we’ve discussed time and time again, content moderation is an arena of massive gray space, rather than black and white. There are tons of judgment calls, and much of it depends on what it is the platform is actually trying to accomplish. Some platforms don’t want controversial content. Some platforms don’t want “hate” speech. But what falls into those categories is an open question and in a free market system (the kind Republicans used to claim they supported), we let the companies decide for themselves…
The group Americans for Prosperity put out a statement calling out Cruz’s nonsense…
TechFreedom’s Berin Szoka didn’t mince words either…
The Cato Institute last year questioned why Ted Cruz — a supposed conservative free marketer — seems so against property rights when it comes to the property rights of internet companies.
First Amendment
New York Times: Is Assange’s Arrest a Threat to the Free Press?
By Michelle Goldberg
Last November, federal prosecutors accidentally revealed, in an unrelated court document, that a sealed indictment had been filed against WikiLeaks founder Julian Assange. Many people concerned with civil liberties, including some who despise Assange, were alarmed by the idea that he could be punished for his role in exposing American government secrets. “If Assange can be prosecuted merely for publishing leaked classified documents, every single media outlet is at risk of prosecution for doing the exact same thing,” the lawyer Bradley P. Moss wrote in The Atlantic.
At the time, the public didn’t know what the actual charges were. Now that Assange has been dragged from the Ecuadorean Embassy in London, where he’s lived for almost seven years, and is facing extradition to the United States, we do. He’s been indicted for conspiracy to commit computer intrusion, a result of his alleged attempts nearly a decade ago to help former Army intelligence analyst Chelsea Manning crack a password to a government computer.
These charges do not pose quite the threat to a free press that some feared, because hacking is not standard journalistic practice. “The indictment does not charge Assange for the act of publishing, which would have been a serious Rubicon crossed,” Ben Wizner, director of the American Civil Liberties Union’s project on speech, privacy and technology, told me. But, as Wizner emphasizes, that doesn’t mean we shouldn’t be worried about what Donald Trump’s Justice Department is up to. Elements of the Assange indictment could still set a dangerous precedent.
Reason: Punishing Assange Isn’t Worth Killing a Free Press: Reason Roundup
By Elizabeth Nolan Brown
“The Assange indictment is weaker than you might expect,” tweeted the constitutional lawyer and former federal prosecutor Ken “Popehat” White yesterday. “It charges that Assange and Manning conspired to access government computers (to hack, in the vernacular). BUT it doesn’t say they succeeded.” …
At The Washington Post, Margaret Sullivan suggests that the situation hinges on whether Assange crossed “a crucial line by allegedly encouraging the password hack” instead of just passively receiving the information…
First Amendment lawyer Barry Pollack tells Sullivan that the indictment against Assange was narrow and didn’t criminalize the mere receiving and publishing of classified information. But the line there is a little too close for comfort for me, and many others.
“Reminder, *everything a reporter does* to facilitate a source anonymously sending that reporter classified info is ‘helping them commit a crime,'” tweets Cato policy analyst Julian Sanchez. “That’s not a useful way to talk about what distinguishes the Assange case.”
The indictment may not directly call certain journalist practices criminal, but it does include them-things like using encrypted communications and attempting to protect a source’s identity-as among the elements that suggest Assange is guilty of conspiracy
The indictment “poses grave threats to press freedoms, not only in the U.S. but around the world,” write Glenn Greenwald and Micah Lee at The Intercept…
The Assange prosecution “would be unprecedented and unconstitutional and would open the door to criminal investigations of other news organizations,” the ACLU’s Ben Wizner tells Sullivan.
CNN: Julian Assange’s arrest could end as a test for press freedom
By Brian Stelter and Hadas Gold
We asked eminent First Amendment lawyer Floyd Abrams for his reaction to the news.
“First,” he said, “a sigh of relief that the indictment seems narrow in scope and was not rooted in an Espionage Act claim simply based on receiving and publishing classified data.”
“Second,” he said, “it is based on Assange’s alleged activities in personally participating in accessing the classified information and cracking a classified password. Assange is thus accused of not just receiving classified information and disseminating it but in essence of breaking into the secured computers of the government. That is fortunately not commonplace journalistic conduct.”
“Third,” Abrams added, “notwithstanding the unique features of the case, much of it is based on not uncommon journalistic conduct – receiving and publishing classified material. To that extent, the case still has some level of broader risk for journalists. On balance, though, it seems to me that the government has used significant restraint in making only this single rather unique charge against Assange and the ultimate impact on the press may thus be limited.”
Several prominent groups that advocate for the press say they are very concerned about the implications of Thursday’s charges, even though, as the Committee to Protect Journalists noted, “the indictment does not explicitly charge Assange for publication.” …
Robert Mahoney, CPJ’s deputy director, said “the potential implications for press freedom of this allegation of conspiracy between publisher and source are deeply troubling. With this prosecution of Julian Assange, the U.S. government could set out broad legal arguments about journalists soliciting information or interacting with sources that could have chilling consequences for investigative reporting and the publication of information of public interest.”
The Hill: Alan Dershowitz: Is Julian Assange another Pentagon Papers case?
By Alan M. Dershowitz
Before WikiLeaks founder Julian Assange gained asylum in the Ecuadorian embassy in London in 2012, he and his British legal team asked me to fly to London to provide legal advice about United States law relating to espionage and press freedom. I cannot disclose what advice I gave them, but I can say that I believed then, and still believe now, that there is no constitutional difference between WikiLeaks and the New York Times.
If the New York Times, in 1971, could lawfully publish the Pentagon Papers knowing they included classified documents stolen by Rand Corporation military analyst Daniel Ellsberg from our federal government, then indeed WikiLeaks was entitled, under the First Amendment, to publish classified material that Assange knew was stolen by former United States Army intelligence analyst Chelsea Manning from our federal government…
It is likely, therefore, that a prosecution of Assange for merely publishing classified material would fail. Moreover, Great Britain might be unwilling to extradite Assange for such a “political” crime. That is why prosecutors have chosen to charge him with a different crime: conspiracy to help Manning break into a government computer to steal classified material. Such a crime, if proven beyond a reasonable doubt, would have a far weaker claim to constitutional protection. The courts have ruled that journalists may not break the law in an effort to obtain material whose disclosure would be protected by the First Amendment.
The problem with the current effort is that, while it might be legally strong, it seems on the face of the indictment to be factually weak.
DOJ
Politico: Prosecution of former White House counsel sets K Street on edge – again
By Theodoric Meyer
The Justice Department’s indictment of Gregory Craig, who served as White House counsel under President Barack Obama, on Thursday sent a clear signal to K Street that lobbyists who work for foreign interests without registering have reason to be afraid…
Craig was charged with misleading the Justice Department about his role in writing a report in 2012 on the prosecution of Yulia Tymoshenko, a former Ukrainian prime minister, while he was a partner at the law firm Skadden Arps Slate Meagher & Flom. Manafort arranged to hire Skadden on behalf of the Ukrainian government, although a Ukrainian oligarch paid most of the firm’s fees, according to the indictment.
When the report was finished, Craig helped to promote it to reporters in Washington and gave interviews to them. When the Justice Department sent a letter to Skadden to determine whether Craig’s actions meant he needed to register as a foreign agent, Craig made “false and misleading statements” to avoid registering, according to the indictment…
“I did not participate in a scheme to mislead the government or conceal material facts,” he said in a video statement posted to YouTube on Thursday. “I was always honest about the reasons for my contacts with the media. This prosecution is unprecedented and unjustified. I am confident that both the judge and the jury will agree with me.” ..
Lobbyists are often reluctant to register as foreign agents, in part because doing so requires them to disclose their meetings and phone calls with government officials in more detail than if they register under domestic lobbying rules. And lawyers such as Craig who don’t lobby may not want to register at all if they can help it.
Candidates and Campaigns
Washington Post: Early fundraising by 2020 Democrats shows they are in for a long, drawn-out fight
By Michelle Ye Hee Lee
The overall sum raised by nearly 20 Democratic presidential candidates so far is on par with the amount raised by a much smaller field at this point in 2007, a sign that candidates are struggling to break through in a crowded contest that remains wildly unpredictable.
The first-quarter fundraising reports that will be made public next week are typically seen as a key early measure of viability for primary candidates. But the figures trickling out from the campaigns show Democratic voters don’t yet know where to channel their anti-Trump energy – and money…
Rufus Gifford, finance director for Barack Obama’s 2012 reelection campaign, said campaigns are hindering themselves by failing to maximize all sources of money, which includes courting wealthier donors willing to give up to the limit of $2,800. Their support, he said, will be crucial once the nominee is selected.
“I don’t think that we can find these numbers acceptable, considering where the energy of the country is, and the stakes in 2020,” Gifford said. “I want the strongest candidate with the best chance to beat Trump, and I don’t want [a lack of] money to be a factor there.” …
Still, in the age of social media and viral content, it is unclear whether a candidate needs to break fundraising records to gain traction. For instance, in 2016, Trump emerged from a crowded Republican primary where he was outspent by others – but gained attention through viral tweets and headline-grabbing debate moments…
“People shouldn’t overreact to the totality of the numbers. What it does say is that there are a lot of high-quality people running for president this time,” said Tom Nides, former deputy secretary of state under Obama and a longtime Democratic fundraiser. “The Democrats – whoever is the nominee – will ultimately have plenty of money to raise and win against Trump. That I’m sure of.”
The States
Colorado Sun: In final push, Democrats rush major changes to elections and campaign finance disclosure in Colorado
By Sandra Fish
House Bill 1318 would require labor unions or nonprofits groups that donate $10,000 or more to an independent expenditure committee – better known as a super PAC – to disclose the names of individuals who donate for political purposes…
But an exception in the legislation would allow donors to labor unions or nonprofit groups to avoid public disclosure…
The donor must affirm “reasonable probability” that they will face harm or threat, and it’s subject to review by the secretary of state’s office…
A Griswold spokeswoman said it resembles laws in other jurisdictions and cited a 1950s Supreme Court ruling largely unrelated to campaign finance that the NAACP in Alabama didn’t have to release its membership rolls.
“We would never want people to feel that they are risking their safety by participating in our democracy,” spokeswoman Serena Woods wrote in an email…
Another component of HB-1318 would require companies to disclose on advertisements and campaign literature that they paid for the material. All digital ads also would carry disclosure of the committee or company that paid for them…
Also under the bill, a super PAC – which can raise and spend unlimited amounts – would not be able to get support from a person who later becomes a candidate. If it did, it would convert to a traditional political committee…
Senate Bill 232 would put into law the system adopted in 2018 by former Secretary of State Wayne Williams that features an initial review of complaints, including allowing campaigns accused the opportunity to fix their reports. The rules he put in place came after a court decision overturned the old system that sent complaints directly to an administrative law judge…
The legislation also would allow the secretary of state’s office to audit campaign finance filings and ask committees to correct errors or pursue complaints for potential violations.
