First Amendment
Reason (Volokh Conspiracy): Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today
By Eugene Volokh
The comments on my recent Do Ordinary Speakers Have Lesser First Amendment Rights Than Newspapers Do? post reminded me that many people think that in the Framing era “the freedom of the press” referred to the freedom of newspapers and similar professional media institutions. But the historical record, I think, clearly opposes this view; indeed, from the late 1700s through the 1800s and into the 1900s the overwhelming view was that the media don’t have any more constitutional rights than the rest of us. And since this question perennially arises, I thought I’d serialize my 2011 Penn Law Review article on the subject here, at least focusing on the early American history.
I begin here with the Introduction, and will then move on to the specific evidence in coming posts (with most footnotes omitted). But you can read it all in one fell swoop, if you’d like, here, in PDF form.
The Courts
Patch: U.S. Senate Candidate Sues After Cambridge Shuts Down Slogan
By Jenna Fisher
One of the candidates challenging Elizabeth Warren for her U.S. Senate seat has filed a federal lawsuit against the City of Cambridge accusing it of violating his First Amendment rights. His campaign was asked to move or get rid of the racially charged slogan “Only A Real Indian Can Defeat The Fake Indian” draped over his campaign bus, which was parked at an office building he owned…
Ayyadurai and his campaign filed the case in U.S. District Court in Boston on April 22.
The federal complaint says at the beginning of the month someone from the city’s Inspectional Services Department emailed Ayyadurai’s campaign following several anonymous complaints and said the bus was in violation of Article 7, Section 7.10 of the City of Cambridge Zoning Ordinance…
The email said that because there were signs displayed without approvals and permits from the Inspectional Services Department it must be removed, and there will be a $300 fine for each day it isn’t…
“A wide variety of vehicles are daily parked in City spaces and private lots, all carrying commercial and political messages. Yet the City never attempts to regulate the messages on those vehicles,” reads the court document…
The lawsuit seeks to put injunctions against the city’s fines.
Independent Groups
Salon: Will dark money swamp the blue wave? Democrats’ fundraising lead could be deceptive
By Amanda Marcotte
Now that the 2018 campaign season is truly underway, mainstream media chatter about the “blue wave” narrative is about to become cacophonous…
But it would be unwise for those on the left to get too complacent about their certainty of a blue wave. Republicans have a lot of unfair structural advantages, not the least of which is a major financial edge that has been dramatically boosted by campaign finance deregulation.
“Across the country, we’re seeing Democratic challengers put in the hard work, galvanize the grassroots and, in turn, outraise their incumbent Republican opponents,” Adam Bozzi, the communications director for End Citizens United, told Salon. “It’s a promising sign for Democrats, but it doesn’t take into account that the system is rigged so that special interests can pour outside money in for Republicans, who have been stonewalling campaign finance reform.” …
The Democratic energy of 2018 is undeniable, but that’s all the more reason to believe that wealthy Republicans will do what they did in Pennsylvania and pour millions of dollars, much of it secret, into tight campaigns late in the game. Enthusiasm can defeat big money sometimes, of course, as it did in the Pennsylvania special election.
Texas Tribune: Beto O’Rourke to major Democratic super PAC donor: “Thanks, but no thanks”
By Abby Livingston
Tom Steyer, one of the biggest Democratic donors in the country, on Tuesday openly mulled on CNBC spending on O’Rourke’s behalf via his environmental super PAC, NextGen America.
“We are intrigued by Texas, and we are aware what we have to do in order to have an impact on a state that big. We need a lot of resources, but we have not made a decision to be involved with it,” Steyer said.
O’Rourke has long said he would not accept corporate PAC or super PAC money for his campaign, but he has no control over whether Steyer or anyone else runs ads on his behalf through an outside group.
“He can still do it,” O’Rourke said. “Literally, not only do I not have any control but I’m prohibited by law from coordinating. Having said that, for he and anyone considering doing this, we don’t want that. It’s not the way to run this, and I’m convinced it’s not the way to win.”
Lobbying
New York Times: Mulvaney, Watchdog Bureau’s Leader, Advises Bankers on Ways to Curtail Agency
By Glenn Thrush
“We had a hierarchy in my office in Congress,” Mr. Mulvaney, a former Republican lawmaker from South Carolina, told 1,300 bankers and lending industry officials at an American Bankers Association conference in Washington. “If you’re a lobbyist who never gave us money, I didn’t talk to you. If you’re a lobbyist who gave us money, I might talk to you.”
At the top of the hierarchy, he added, were his constituents. “If you came from back home and sat in my lobby, I talked to you without exception, regardless of the financial contributions,” said Mr. Mulvaney…
Mr. Mulvaney said that trying to sway legislators was one of the “fundamental underpinnings of our representative democracy. And you have to continue to do it.”
The association, which invited Mr. Mulvaney to give the keynote address at its conference, strongly backs his efforts to consider the financial burdens on banks imposed by the bureau’s actions.
Asked about the comments, John Czwartacki, a spokesman for Mr. Mulvaney, said: “He was making the point that hearing from people back home is vital to our democratic process and the most important thing our representatives can do. It’s more important than lobbyists and it’s more important than money.”
Congress
Wisconsin Gazette: New scorecard charts Congress on pro-democracy bills
By Glenn Thrush
Common Cause is tracking the positions of every member of Congress on issues vital to the health of democracy.
CC sent members of the House and Senate letters asking them to co-sponsor and support more than a dozen democracy reform bills and informing them that their co-sponsorship record will be published during the lead-up to Election Day in Common Cause’s “Democracy Scorecard.”
In the wake of revelations of Russian attacks on the 2016 election, the tracked bills include legislation to safeguard the Special Counsel’s Russian Investigation and a bill requiring disclosure of online political advertisements…
The scorecard includes:
S 1989/HR 4077 (Honest Ads Act), which would require disclosure rules for online political advertisements, similar to television, radio and printed political ads…
HR 20/S 1640 (Government by the People Act/Fair Elections Now Act), which would provide tax incentives to encourage small dollar donations to congressional candidates and create a system of matching funds to amplify the voices of those donors and reduce candidates’ dependence on big money.
Candidates and Campaigns
The Federalist: Bombshell: FEC Records Indicate Hillary Campaign Illegally Laundered $84 Million
By Margot Cleveland
During the 2016 presidential election, Hillary Clinton, the DNC, and participating state Democratic committees established the Hillary Victory Fund (HVF) as a joint fundraising committee to accept contributions from large donors, some exceeding $400,000. So far, so good. To comply with campaign finance law, the HVF needed to transfer the donations to the specified recipients, whether the Clinton campaign, down-ticket Democrats, the DNC, or state committees.
FEC records, however, show several large contributions reported as received by the HVF and the same amount on the same day (or occasionally the following day) recorded as received by the DNC from a state Democratic committee, but without the state Democratic committee ever reporting the contribution…
Over a 13-month period, FEC records show some 30 separate occasions when the HVF transferred contributions totaling more than $10 million to the DNC without any corresponding record of the receipt or disbursement from the state parties, thus illegally leap-frogging the state Democratic parties.
On the other hand, of the contributions state parties reported as received from the HVF, 99 percent wound up at the DNC. They were transferred immediately or within a day or two, raising questions of whether the state Democratic committees truly exercised control over the money-something necessary under campaign finance law to allow a later-legal transfer to the DNC.
By John W. Schoen
As of the latest campaign finance filings, about two-thirds of the roughly $750 million in individual contributions to House candidates has come from donors outside that candidate’s district.
Moreover, in 40 of the most competitive House races, more than three times as much of those individual donations are coming from outside donors than from voters who live within the district’s boundaries…
In some cases, the source of campaign funding isn’t reported at all. This so-called “dark money” is raised by nonprofit, tax-exempt groups that don’t have to disclose where their funds come from as long as they don’t coordinate their activities with a specific candidate or party committee.
Despite the increasing influence of this loosely reported spending, the bulk of the money financing this year’s midterm elections comes from individuals, companies, and organizations that disclose their donations. Some of that money comes from small contributions that are not itemized, so it’s impossible to determine whether the donor was a constituent in a given district or an outside party trying to influence the outcome.
But most of the money can be tracked.
The States
Cleveland.com: Watchdog group files complaint over dark money contribution to anti-Householder group
By Andrew J. Tobias
Citizens for Responsibility and Ethics in Washington filed the complaint Monday with the Federal Election Commission, alleging that a March 28 contribution from “LZP LLC” in Columbus to the Virginia-based Honor and Principles PAC breaks federal elections law, which bars someone from making a political contribution in someone else’s name.
Within a four-day period, the Honor & Principles PAC was formed in Virginia, a lawyer filed papers incorporating the LLC in Columbus, the LLC made the $175,000 contribution to the PAC, and the PAC spent $163,000 on radio and TV ads attacking State Rep. Larry Householder, a Southeast Ohio Republican who’s running for re-election, state and federal records show…
[CREW spokesman Jordan] Libowitz said the facts surrounding the contribution to Honor and Principles PAC are similar to another which recently led to a six-figure fine. In the other case, the FEC in November imposed a $350,000 fine after the American Conservative Union accepted a $1.71 million contribution from an LLC, kept $90,000 and passed the rest along to a federal PAC…
Householder last week in an Ohio court sued the PAC as well as another, claiming ads they’ve run against him referencing an FBI investigation into him that closed without charges in the 2000s were defamatory.
Arkansas Online: Ethics filing: Anonymous cash sought
By Hunter Field
Arkansas gubernatorial candidate Jan Morgan and state Rep. Dan Sullivan were accused this week in an ethics complaint of trying to “skirt” campaign finance laws at an event in Jonesboro earlier this month…
Sullivan of Jonesboro told a group gathered April 7 to hear Morgan speak at a northeast Arkansas motorcycle dealership that he’d collect money and contact information from anyone interested in helping fund a billboard promoting Morgan’s candidacy, according to a video of the event…
Sullivan jokes in the video that Morgan should cover her ears, so the fundraising efforts would be “independent” of the campaign.
Retired Jonesboro banker Ray Hackworth said he submitted the complaint to the Arkansas Ethics Commission on Wednesday. He alleges that Sullivan, with Morgan’s consent, “did solicit campaign donations in a manner which was designed to skirt election law for the purpose of hiding the identities of those providing the donations.” …
The topic of billboards came up during Morgan’s campaign stop because an Arkansas State University student and her friends had pooled money to buy billboards in Jonesboro to support Morgan.
Morgan said a billboard, which went up several days before Morgan’s Jonesboro trip, drew the attention of Hutchinson’s campaign, which inquired about who paid for the billboard.
