In the News
The Right Scoop: Former FEC Chairman tells Mark Levin why Stormy Daniels hush money cannot be an in kind campaign contribution
Last night Mark Levin interviewed a former FEC Chairman who explained why a hush money payment to Stormy Daniels cannot be considered an in kind contribution to the Trump campaign, thus violating campaign finance law…
Here’s a snippet quote from Professor Bradley Smith in the interview to wet your whistle:
“When the FEC wrote the regulation that says what constitutes campaign expenditures and what constitutes personal use, it rejected specifically the idea that a campaign expenditure was anything related to a campaign, and instead says it has to be something that exists only because of the campaign and solely for that reason.”
You really should listen to at least the first few minutes of the clip where Smith makes his main argument as to why these payments can’t be considered in kind contributions. The above quote, just fyi, came toward the end of the interview when discussing what the judge who approved the warrant might not know about the FEC regulations.
Cato: Hey Baby, What’s Your On-Premises Sign?
By Ilya Shapiro and Aaron Barnes
Tennessee’s Billboard Regulation and Control Act of 1972 regulates roadside signs by imposing onerous restrictions as well as location and permit requirements. The statute also provides exemptions, particularly with regard to so-called “on-premises” signs. On-premises signs are those that either advertise activities that are conducted on the property or the sale of the property on which the sign is located. If a sign fails to qualify as “on-premises,” it’s subject to the full weight of the law and is often outright prohibited.
Based on the 2015 Supreme Court case of Reed v. Town of Gilberti, the federal district court ruled this on-premises/off-premises distinction to be a content-based regulation subject to strict scrutiny, ultimately finding it to violate the First Amendment. Cato certainly agrees with this outcome, and we have now filed a brief supporting it after Tennessee appealed to the U.S. Court of Appeals for the Sixth Circuit. Our basic point is this: Regardless of whether the court applies “strict scrutiny” or some lesser form of review, the statute is unconstitutional because of an insufficient fit between the ends the state claims to pursue and the means it uses…
The Sixth Circuit, based in Cincinnati, will hear Thomas v. Schroer, later this spring.
NBC Chicago: Supreme Court to Decide Whether it Will Hear Blagojevich’s Appeal
The United States Supreme Court will make a decision on Rod Blagojevich’s request that they hear his appeal.
At its weekly conference Friday, the court is expected to discuss whether or not it will take up the former governor’s case as he continues to serve a 14-year term in a Colorado prison.
It remains unclear when exactly the court will announce its decision. It is possible to go through several conferences with the same case.
A group of current and former Illinois lawmakers had earlier asked the court to take up the case, saying that while they take no position on Blagojevich’s guilt or innocence, there is a need to clarify once and for all the vagueries of campaign finance law in the United States…
Two other groups also filed amicus briefs in support of the court taking Blagojevich’s case, the Institute for Free Speech, and the Center on the Administration of Criminal Law.
Des Moines Register: Iowa should be applauded for political speech rights
By Joe Albanese
The Institute’s Free Speech Index scores and ranks all 50 states on their laws governing political giving, grading them from A+ to F. Iowa ranked as one of the top states in the country, earning an A grade. This places it alongside 10 other states that earned an A or higher. One crucial trait these states have in common is that they don’t limit the freedom of individuals to give to candidates, parties and political committees, as well as the ability of parties and political committees to give to candidates.
Why is it so important that states like Iowa allow freedom in political giving to and between these groups? Because the main effect of government-imposed restrictions on political giving is to limit the amount of speech individuals, organizations and political actors can express. Giving money is not just a show of support. It also enables candidates and groups to spread their message…
Many politicians find it easier to pass laws that make it harder for voters or rival candidates to criticize them. They do so while claiming they are protecting voters from the rich, when they are actually protecting themselves. Iowa is one of 11 states that have done an exemplary job of avoiding this trap. Hopefully, the Institute for Free Speech’s Index will shed light on how such states can continue producing pro-First Amendment policy – and will push others to do the same.
American Thinker: Former Federal Election Commission chairman debunks pretext used for raid on Trump lawyer
By Thomas Lifson
Bradley Smith has thoroughly debunked one of the rationales for the seizure of attorney-client privileged communications in attorney Michael Cohen’s office on suspicion of violation of federal election laws. One of the allegations is that the hush money paid to Stormy Daniels amounted to an in-kind campaign contribution, far exceeding the amount permitted an individual to contribute. Smith demonstrates that this is nonsense in his Wall Street Journal column, titled “Stormy Weather for Campaign Finance Laws.”
Epoch Times: Former FEC Chairman: Trump Lawyer’s Hush Money Is Not a Campaign Contribution
By Ivan Pentchoukov
Payments used to silence people who have potentially damaging information on a political candidate cannot be classified as a campaign contribution, according to the former chairman of the Federal Election Commission (FEC), Bradley Smith.
“Not everything that might benefit a candidate is a campaign expense,” Bradley wrote in an editorial for the Wall Street Journal…
“If paying hush money is a campaign expense, a candidate would be required to make that payment with campaign funds,” Bradley said. “How ironic, given that using campaign funds as hush money was one of the articles of impeachment in the Watergate scandal, which gave rise to modern campaign-finance law.” …
“Many ardent anti-Trumpers sincerely believe that the president is a threat to the rule of law. The real threat to the rule of law, however, comes from abusing laws to ‘get’ a political opponent,” Bradley concluded. “Some matters are for voters to decide.”
Legal Insurrection: Were Trump’s Alleged Hush Money Payoffs In-Kind Campaign Contributions?
By Kemberlee Kaye
Mark Levin interviewed former FEC Chair, Professor Bradley Smith who explained why any hush money (as it’s being called) paid to these alleged paramours falls outside of the definition of ‘in-kind contributions.’
“When the FEC wrote the regulation that says what constitutes campaign expenditures and what constitutes personal use, it rejected specifically the idea that a campaign expenditure was anything related to a campaign, and instead says it has to be something that exists only because of the campaign and solely for that reason,” Smith explained.
Free Speech
Reason (Volokh Conspiracy): Organized Heckling at CUNY School of Law of Prof. Josh Blackman Talk on Free Speech
By Eugene Volokh
Blackman has video and photographs at his blog, though I also include the video below. The protest, I think, shows a narrow-mindedness on the students’ part, and an unwillingness to listen to substantive argument. But the heckling, which seems like an organized attempt to keep Blackman from speaking, is something much worse — something that universities ought to punish, and that I would think many universities would indeed punish, at least in other situations. (The protesters’ standing on the same stage as the speaker, I think, would also not be tolerated for other events; leaving the podium to the speaker and other invited panel members is, I think, the standard content-neutral practice in such cases.)
Say that anti-abortion students decided to try to shout down university talks by academics who support abortion rights. Or say that other students decided to try to shout down university talks by academics who support Black Lives Matters. How would, and how should, universities respond to that? I would think that the same answer should apply here.
Internet Speech Regulation
Government Technology: What’s New in Civic Tech: Transparency Groups Support Honest Ads Act
By Zack Quaintance
As social networks like Facebook weather ongoing scrutiny over enabling Russian meddling in the 2016 presidential election, nonprofit transparency and pro-democracy groups continue to voice support for the Honest Ads Act, a bipartisan piece of legislation that has been introduced in both houses of Congress.
In a group letter to U.S. senators on April 11, nearly 30 such groups called for policymakers to pass the act, which would strengthen disclosure requirements for political ads online…
The groups calling for this act are wide ranging, including the Sunlight Foundation, Issue One, League of Women Voters, Democracy 21 and the Center for Digital Democracy, among others…
“The bill recognizes that voters have a right to know about foreign sponsors and funders of campaign-related Internet ads,” the groups wrote. “Our organizations and experts strongly urge you to support the Honest Ads Act and to publicly press for prompt passage of the bill by Congress. This is not only a campaign finance issue. This is a matter of the utmost importance to our national security, to the integrity of our elections, and to protecting our democracy from sabotage by foreign adversaries.”
FCC
Reason: Bernie Sanders and Elizabeth Warren Want the FCC to Revoke Sinclair’s Broadcast Licenses
By Matt Welch
Yesterday 12 senators, including reported presidential aspirants Bernie Sanders (I-Vermont), Elizabeth Warren (D-Mass.), and Cory Booker (D-N.J.), officially requested that the Federal Communications Commission (FCC) “investigate Sinclair’s news activities to determine if it conforms to the public interest.” If such an inquiry were to uncover “distorted news reports,” the senators reckoned, that “could disqualify Sinclair from holding its existing licenses” …
“As strong defenders of the First Amendment guarantees of free speech and freedom of the press, we are alarmed by such practices….Must-run dictates from Sinclair harm the freedom of the press guaranteed in the First Amendment by turning local journalists into mouthpieces for a corporate and political agenda.”
FCC chair Ajit Pai this afternoon responded with a curt thanks-but-no-thanks. “In light of my commitment to protecting the First Amendment and freedom of the press, I must respectfully decline,” Pai wrote. “I have repeatedly made clear that the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast. I understand that you disliked or disagreed with the content of particular broadcasts, but I can hardly think of an action more chilling of free speech than the federal government investigating a broadcast station because of disagreement with its news coverage or promotion of that coverage.”
Congress
Electronic Frontier Foundation: No, Section 230 Does Not Require Platforms to Be “Neutral”
By Elliot Harmon
One jaw-dropping moment during the Senate’s hearing on Tuesday came when Sen. Ted Cruz asked Facebook CEO Mark Zuckerberg, “Does Facebook consider itself a neutral public forum?” Unsatisfied by Zuckerberg’s response that Facebook is a “platform for all ideas,” Sen. Cruz continued, “Are you a First Amendment speaker expressing your views, or are you a neutral public forum allowing everyone to speak?”
After more back-and-forth, Sen. Cruz said, “The predicate for Section 230 immunity under the CDA is that you’re a neutral public forum. Do you consider yourself a neutral public forum, or are you engaged in political speech, which is your right under the First Amendment?” It was a baffling question. Sen. Cruz seemed to be suggesting, incorrectly, that Facebook had to make a choice between enjoying protections for free speech under the First Amendment and enjoying the additional protections that Section 230 offers online platforms.
Online platforms are within their First Amendment rights to moderate their online platforms however they like, and they’re additionally shielded by Section 230 for many types of liability for their users’ speech. It’s not one or the other. It’s both…
It’s puzzling that Sen. Cruz would misrepresent one of the most important laws protecting online speech-particularly just a few days after he and his Senate colleagues voted nearly unanimously to undermine that law. (For the record, it’s also puzzling that Zuckerberg claimed not to be familiar with Section 230 when Facebook was one of the largest Internet companies lobbying to undermine it.)
FEC
Newsweek: Payment for Trump Love Child Story Was Illegal Campaign Contribution, Watchdog Alleges
By Greg Price
The reported $30,000 payment American Media Inc. made for a rumored story about President Donald Trump fathering an illegitimate child in the 1980s was an illegal campaign contribution, a government watchdog said in complaints filed to the Federal Election Commission and the Justice Department on Thursday.
Grassroots organization Common Cause claimed the hefty sum the publisher of the National Enquirer gave to former Trump World Tower doorman Dino Sajudin for the rumor violated contribution limits and contribution reporting requirements…
“We have laws to ensure disclose of who is funding presidential campaigns to protect the integrity of our democratic process,” Common Cause president Karen Hobert Flynn said in a press release. “The president and his team seem to have repeatedly chosen to ignore campaign finance laws in an attempt to bury scandals related to the then-candidate’s extramarital affairs. We are encouraged that the DOJ is vigorously investigating the allegations outlined in Common Cause’s complaints related to earlier reports of hush money payments on behalf of Donald Trump and his campaign.”
The Courts
Daily Caller: Judgeless Administrative Searches Endanger Speech And Other Rights Shielded By The Fourth Amendment
By Mark J. Fitzgibbons
Using a state law that prohibits deceptive and unfair practices in business, Missouri Attorney General Josh Hawley recently issued a civil investigative demand (CID) to Facebook seeking records about how the popular digital platform shared user information with political campaigns…
The CID was issued unilaterally by Hawley, meaning without authorization from a neutral judicial officer. CIDs do not require probable cause, but must specify the legal bases of the search. Unlike searches that take place on premises, the targets of CIDs must produce private papers and digital records to the government…
Unrelated to searches in the political world – for now at least – earlier this year the 6th Circuit Court of Appeals issued a mixed ruling about warrantless searches of “closely regulated” businesses.
Liberty Coins challenged Ohio’s Precious Metals Dealers Act giving government officials the power to enter premises to inspect records. Parts of the statute were deemed unconstitutional by the court, but warrantless searches were upheld so long as they authorized targets to challenge the searches before complying...
Charities and other entities engaging in speech and money transmissions would seem to fit the broader definition of “closely regulated” because they are subject to licensing and stringent recordkeeping requirements. Judgeless administrative searches are invitations to invoke investigations to intimidate and silence critics and unpopular speech.
The States
NJ Spotlight: Curbing the Influence of Special-Interest Groups on NJ Elections
By Colleen O’Dea
“At this time, when our very democracy is under threat, being able to shine a light on where the money used to influence elections comes from is even more critical than ever,” said Assemblyman Andrew Zwicker (D-Middlesex). He is one of the sponsors of A-1524, a bipartisan bill to revise the state’s campaign-finance laws to include disclosure of contributions by independent spending groups…
Increasing the transparency of these independent groups is one of a series of reforms for which ELEC has been advocating for several years.
Zwicker’s bill, which is S-1500, co-sponsored in the Senate by Sens. Troy Singleton (D-Burlington) and Linda Greenstein (D-Middlesex), embodies the spirit, if not the letter, of many of those recommendations…
There’s a separate pending bill, A-1957, with Republican sponsors who include Assembly Minority Leader Jon Bramnick of Union County, that would achieve the same goals as the Zwicker and Singleton bills, while also amending the reporting rules for businesses that make campaign contributions while holding public contracts under the state’s so-called pay-to-play laws.
All the measures are pending before committees in their respective houses. Zwicker said his goal is to push for consideration of his legislation in the latter half of the year, after the Legislature completes its review of the state budget.
Gotham Gazette: Molinaro Outlines Initial Ethics and Campaign Finance Reform Agenda
By Ben Max
Notably, Molinaro has indicated an interest in government ethics and campaign finance reforms that have not been popular among many Republicans in state government. There is also limited appetite among many Democrats for additional ethics reforms and some elements of campaign finance reform.
Molinaro has said he wants to lead an overhaul of campaign finance laws, including possible closure of the LLC loophole, which allows virtually unlimited donations from entities that set up multiple limited liability corporations, and indicated he believes that only people should be able to make campaign donations, not companies, unions, or other organizations…
During an interview before his official campaign launch, Molinaro told Gotham Gazette, “I’d like to engage in a comprehensive reform of campaign finance.” He indicated he wants to look at “limits on contributions, where they can come from, who they can come from, plus you need to look at the reporting requirements and the need for ultimate transparency there. Then what and how campaign dollars can be spent.”
“I m one of the people that only thinks people should be able to contribute money…those are individual rights, those rights extend to individuals.” He added that “unions have a great deal of influence, corporations have a great deal of influence, the state contribution limits are astronomically out of line to other states, independent expenditure opportunities are pretty broad in the state. There are a lot of those reforms that I think should go hand in hand.”
He stopped short of supporting public financing of campaigns, but indicated some openness depending on strict rules for how money can be spent.
