In the News
Legal News Line: Conservative activist Eyman ‘in a quandary’ following judge’s decision in Wash. AG’s lifetime ban request
By Karen Kidd
Longtime Washington conservative activist Tim Eyman says he is unsure of his next move following a decision by a judge in the state’s capital late last week to not rule out punishing him with what Eyman feels is a lifetime ban on political activity…
On Friday, Thurston County Superior Court Judge James Dixon denied Eyman’s motion for partial summary judgment to strike [Attorney General Bob] Ferguson’s request for the ban as a possible punishment for past misdeeds alleged in the attorney general’s case…
Ferguson is seeking an order that would prevent Eyman from handling the finances of any political group. It’s something Eyman feels would essentially ban him from political activism.
“The court hastens to add that it’s not really a motion for summary judgment, that’s not the posture of the case,” Dixon said during the conclusion of Friday’s hearing. “The relief being sought is either declaratory judgment or an advisory opinion, as I mentioned earlier. But I’ll enter an order denying it.”
Dixon also rejected without prejudice the First Amendment advocacy group Institute for Free Speech’s amicus brief, part of a flurry of filings prior to the hearing,that sided with Eyman on his constitutional free speech claims. The institute said in its brief that the state’s requested ban is “nothing short of a prior restraint on protected First Amendment activity.” …
Dixon explained to the institute’s local attorney, Nicholas “Nick” Power, a Friday Harbor solo practitioner who last year unsuccessfully ran for San Juan County Prosecutor, that it was too soon for such a brief in the case.
“In the future, if – capital ‘I,’ capital ‘F’ – this court were to find ultimately that there is an issue with respect to the proper remedy, the court might consider a motion for filing of an amicus brief,” Dixon said.
First Amendment
ACLU: I Was Arrested and Detained for Passing Out Fliers Near a Courthouse
By Michael Picard
A little over a year ago, I was arrested and detained for 10 hours in New York City because I was handing out leaflets advocating jury nullification. I was arrested under a state law that makes it a crime to talk about judicial proceedings within 200 feet of a courthouse. I filed a First Amendment lawsuit because political speech shouldn’t be a crime, no matter where it takes place…
For a few years now, I have been educating people about jury nullification by handing out leaflets in front of courthouses in Connecticut and Massachusetts. I have been questioned by prosecutors and federal agents, chased off of public property, surrounded by a host of officers, and threatened with arrest. Still, New York City was different.
On a brisk December morning in 2017, I stood on a public sidewalk in front of the Bronx Hall of Justice. I decided to protest New York’s unjust laws by handing out fliers informing people of their power to nullify unjust laws. After several minutes, two court officers approached me and said that I would need to move 200 feet away from the courthouse to continue handing out fliers.
When I refused to move, the court officers arrested me, searched me, and seized my property. I was ultimately detained for 10 hours that day, simply for exercising my First Amendment right to speak. They declined to prosecute me, but only because the arresting officer failed to measure whether I was standing within 200 feet of the courthouse at the time of my arrest. Otherwise, who knows what could have happened.
I brought this case because the government has no business criminalizing political speech just because it happens outside a courthouse. Courthouses are important public symbols, closely tied to the administration of justice. They are frequently important places for political speech on a wide range of issues, including police brutality, immigrants’ rights, and criminal justice reform.
The Courts
NPR: Ted Cruz Sues Federal Election Commission
By Peter Overby
At issue is loophole-closing language that restricts how much money lawmakers can accept from donors after Election Day as they seek to recoup loans they made to their campaigns.
The 2002 McCain-Feingold campaign finance law puts a $250,000 limit on payments from postelection donors, even if the candidate lent more, and there’s a 20-day deadline for donors to contribute. Cruz is suing the Federal Election Commission as enforcer of the provision.
Beyond those limits, “the donor is in effect putting money into an officeholder’s pocket, which is very dangerous from an anti-corruption perspective,” said Adav Noti, senior director of trial litigation at the Campaign Legal Center, a nonprofit organization that supports the regulation of political money.
He said abolishing the deadline would let a donor make a package contribution to help reimburse the candidate for the old debt while also putting money into the upcoming re-election effort.
But fighting corruption isn’t the question here, said former FEC Chairman Lee Goodman. He said the contribution limit – now $2,800 per donor per election – is so low that it’s the “ultimate guard against corruption.” He said, “It should not matter whether the donor makes that contribution before Election Day or after Election Day to retire the politician’s personal campaign loan.”
Cruz spokeswoman Catherine Frazier said the provision helps only two kinds of candidates: those “who can raise enough money from special interests” and “ultra-wealthy candidates” who can pour money into their campaigns.
FEC
Bloomberg Government: Courts Have No Say When FEC Wants To Ignore Alleged Wrongdoing
By Kenneth P. Doyle
In a decision handed down in March, U.S. District Judge Rudolph Contreras said he was foreclosed from reviewing the FEC’s dismissal of a complaint against a nonprofit that refused to disclose where it got the money to give more than $3 million to super political action committees during the 2012 election.
That group, New Models, spent more on political donations than anything else that year, according to a complaint by the nonprofit Citizens for Responsibility and Ethics in Washington (CREW).
The judge agreed with FEC staff lawyers who had written that the Republican commissioners who voted to drop the New Models case have “prosecutorial discretion,” and their wishes are “judicially unreviewable.”
Judicial review was eliminated last June, in a 2-1 decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit. Critics of that ruling have waited for the better part of year to find out if they’ll be allowed to argue before the full court on reversing that precedent…
FEC Chairwoman Ellen Weintraub (D) wants the full appeals court to restore the judiciary’s check on her agency’s power to enforce – or not enforce – laws intended to let the public see who’s paying to influence their political choices.
“If my obstructionist colleagues are allowed to keep this case-killing power they have been handed, they will wield it,” she said in a written statement.
CREW filed a motion last July called for the panel decision to be reversed. The D.C. Circuit hasn’t yet responded to that filing…
CREW said in a recent letter to the court that the effect of the 2-1 decision, unless reversed, is that “magic words” can be invoked by Republican commissioners to block enforcement of campaign finance law.
Congress
The Hill: Facebook, Twitter and Google to testify at Senate hearing on tech ‘censorship’
By Emily Birnbaum
Facebook said public policy director Neil Potts will provide testimony at a Wednesday hearing titled “Stifling Free Speech: Technological Censorship and the Public Discourse,” held by the Senate Judiciary Subcommittee on the Constitution.
A source familiar with the matter told The Hill that Twitter and Google are also sending representatives to the hearing, and said there will be a second panel.
The subcommittee is chaired by tech critic Sen. Ted Cruz (R-Texas), who has alleged the Silicon Valley giants – Google, Facebook and Twitter – are biased against conservatives and routinely censor right-wing voices.
All three companies have pushed back against those accusations, arguing there is little evidence to back up those charges…
Twitter has repeatedly denied that it “shadow-bans” users, saying some users are unintentionally affected when algorithms misidentify them as bots due to the amount they engage with the platform.
“Big tech behaves like the only acceptable views are those on the far left,” Cruz told The Hill last week. “And any views to the contrary are suitable for censorship and silencing.”
Online Speech Platforms
Washington Post: The dark side of regulating speech on Facebook
By Editorial Board
Facebook has come under fire for its speech policies from multiple players in multiple nations for manifold reasons – sometimes for taking down too much content, other times for not taking down enough. Now, Mark Zuckerberg is asking for someone to tell him what to do instead. That’s an understandable but potentially dangerous request.
Some have interpreted Mr. Zuckerberg’s calls for greater regulation of content moderation, along with comments from Facebook’s head of global affairs this past weekend, as requests for a worldwide standard-setting on speech. But any international rules would be formed in part by repressive regimes – putting the Internet’s future in the hands of autocrats. No one set of rules can work for all countries, and people’s ability to express themselves online should not become a geopolitical bargaining chip.
More likely, Facebook and its peers will be regulated country by country. That is more reasonable, though there are risks there, too. Australia has proposed throwing executives in jail if they let violent videos linger on their sites. Germany fines companies for illegal hate speech. Britain is considering hefty fines for “harmful content.” What “harmful” means is unclear – and that’s precisely the problem…
Facebook’s head of public policy clarified that Mr. Zuckerberg does not want the U.S. government to set speech rules, even if other countries might. Instead, he wants a third-party industry group to take charge. The threat is lower, but it could still be a way for Facebook to duck responsibility for its outsize role in society.
Reason: Mark Zuckerberg Calls for Government Regulation of Political Speech on Facebook
By Nick Gillespie
The important thing is that Mark Zuckerberg, the founder and CEO of Facebook, is explicitly calling for government regulation of specifically political speech on his platform and beyond. In his quest to limit expression on social media, Zuckerberg is joined not only by progressive Democrats such as Sen. Elizabeth Warren (D-Mass.) but conservative Republicans such as Sen. Ted Cruz (R-Texas) and Sen. Josh Hawley (R-Mo.), who are calling for the equivalent of a Fairness Doctrine for Twitter and similar services…
[I]n an interview with ABC News’ George Stephanopoulous, Zuckerberg said that it shouldn’t simply be up to Facebook and other private companies to set and enforce their own rules for participants, especially when it came to political speech…
If “we” don’t want a private company to decide what is or is not political speech, it seems even more obvious that we don’t want the government to do so, especially if that means speech can be shut down on the grounds that it traverses campaign-speech laws. It bears underscoring: If the First Amendment protects anything, it’s political speech, however hard that might be to define. Whatever their intentions, campaign-finance laws and other attempts to control political speech are always arbitrary and used to squelch rather than expand political discourse.
The States
Goldwater Institute: Integrity in Journalism is Now Officially Dead
By Victor Riches
USA Today published an inexplicable attack on Right to Try and other Goldwater Institute measures that are designed to eliminate unnecessary bureaucracy and empower people to live freer lives…
Published jointly with the Arizona Republic and the George Soros-funded Center for Public Integrity, this “news” article is a jumbled mess inveighing against the supposed threat of “model legislation.” The gist of the story is that since free-market advocates such as the Goldwater Institute are successful in passing bills in multiple states, they must be part of a nefarious conspiracy.
The centerpiece of this nonsense is an attack on the Goldwater Institute’s leadership of the nationwide, grassroots, bipartisan effort to make Right to Try the law of the land. The story points to our legislation as “the most successful copycat bill in history.” Rather than intending this as a compliment, however, the authors point to it as proof of some insidious effort to spread a secret political agenda.
Obviously, this is absurd. We do have an agenda, and it is certainly not a secret: to protect the right of every person to life, liberty, and the pursuit of happiness. That agenda doesn’t require a team of investigative journalists to unveil. We wear it as a badge of honor. We are proud that countless lives have been improved due to Right to Try and our other efforts…
The authors claim it took them two years, 32 reporters, and the help of a computer algorithm to publish a 5,400-word article that “uncovers” the secret recipe to writing and passing legislation-a “secret” that occurs out in the open thousands of times a year in cities and states across the country.
Casper Star-Tribune: Wyoming’s campaign finance reforms leave several holes for dark money influence
By Nick Reynolds
While sponsors acknowledged Senate File 18 was not a perfect bill, it does make a number of changes to a system that, in the 2018 cycle, was exploited by multiple political action committees of often mysterious origins. Some of these fixes include improving the reporting of late political activity, requiring PACs formed outside of Wyoming to disclose their activity to the Wyoming public and defining what electioneering communications actually are.
For all the bill’s good intentions, however, SF18 contains a pair of significant oversights that will allow dark money to continue to exist in Wyoming politics, according to Pete Quist, research director for the National Institute on Money in Politics in Helena, Montana…
Despite having just one legislative session left to revise these loopholes, campaign finance reform will likely not be revisited in this year’s interim session, according to Sen. Bill Landen, R-Casper, the newly appointed co-chair of the Joint Committee on Corporations, Elections and Political Subdivisions. The committee will largely be confined to some specific requests from the Secretary of State’s Office – which has limited rulemaking ability outside of the legislative process.
“That does not mean individual legislators won’t take up any of the issues related to campaign finance,” Landen wrote in an email. “The committee spent the past interim on campaign finance reform (that was before my time on Corporations), and just won’t be taking it up as a committee.” …
“Many of us were aware that SF-18 did not go as far as some would like, but I considered it to be a step in the right direction,” Landen wrote. “I have been concerned for some time about anonymous mailers from dark money coffers. Candidates deserve to know who is throwing rocks at their windshield. That said, I think we allow the new law to play out and see if it provides that transparency.”
Raleigh News & Observer: Financing, transparency proposed as remedy for ‘dark place’ of money in NC politics
By Will Doran
Calls for campaign finance reform are growing in North Carolina, following federal criminal charges against one of the state’s biggest political donors and the chairman of the state Republican Party.
Mega-donor Greg Lindberg, GOP Chairman Robin Hayes and two of Lindberg’s business associates were accused of trying to route hundreds of thousands of dollars from Lindberg through the state Republican Party and into the campaign account of Insurance Commissioner Mike Causey. Causey is a Republican whom Lindberg was allegedly trying to bribe to help his businesses.
The charges have sparked a discussion about what – if anything – North Carolina’s leaders need to do to change the rules for money in campaigns, to try to stop similar cases from happening in the future.
“This just unfortunately creates more of the jaded cynicism that people across all spectrums have toward democracy and politicians,” said Bob Phillips, executive director of the advocacy group Common Cause North Carolina.
Phillips suggested going back to a system in which the candidates in some elections were eligible for taxpayer-funded grants to their campaigns – if they promised not to take above a certain amount of money from other sources. North Carolina had such a process for a short time in the 2000s.
“For us that would be the gold standard, the ultimate, to find some alternative to the big money contributions,” Phillips said.
Last Tuesday – the same day the charges against Lindberg, Hayes and the others became public – Democrats in the N.C. Senate filed a bill that included election, redistricting and campaign finance reforms. One of the proposals was to bring back a public financing system, which the bill calls the “Fair Election Program.”
Sen. Jeff Jackson of Charlotte said the timing of their proposal, Senate Bill 641, and the criminal charges was a coincidence, but one that ought to add urgency.
