In the News
Indiana Lawyer: Political group takes ‘robocall’ law challenge to SCOTUS
By Dave Stafford
A political advocacy group that wants to strike down Indiana’s ban on robocalls has asked the Supreme Court of the United States to overturn the state law it calls the most restrictive in the nation.
“Who is a court to tell us how we have First Amendment rights to communicate with people?” asked Paul Caprio, President of Patriotic Veterans Inc., which is challenging the state law banning political groups from using automatic dialing technology to call Hoosiers.
The 7th Circuit Court of Appeals ruled against Patriotic Veterans and upheld I.C. §24-5-14-5 in January…
Illinois-based Patriotic Veterans staged a news conference Tuesday at the Indianapolis office of Barnes & Thornburg LLP to announce the filing of a petition for certiorari asking the U.S. Supreme Court to take its appeal of the 7th Circuit’s ruling…
The group in a statement said Indiana’s statute “reverses centuries of Supreme Court precedents by elevating commercial speech over First Amendment protected political/issue advocacy speech.”
Indy Star: Vets group petitions Supreme Court to hear robocall case
By Fatima Hussein
A group called Patriotic Veterans Inc. is appealing a 7th Circuit Court ruling that said Indiana has a legitimate interest in blocking unwanted, or annoying, automatically dialed phone calls.
The leaders of the veterans advocacy group say there’s a more important principle at stake: the First Amendment right of free speech…
In 35 states, the Patriotic Veterans group places automated calls meant to influence public policy on issues “that matter to veterans and other voters,” its president Paul Caprio told IndyStar. The calls “encourage veterans and others to address their grievances to government officials and facilitate contact between voters and their representatives.”
But Indiana law, particularly Indiana’s Automatic Dialing Machine Statute, bars prerecorded telephone calls that contain political messages…
The statute precludes Patriotic Veterans from placing robocalls even to those who wish to receive them. Violating the law’s prohibition on political speech is a Class C misdemeanor punishable by 60 days in prison and a fine for each call.
Caprio said he sees Indiana’s regulation on robocalls as a way “to protect legislators who don’t want the annoyance of hearing their constituents’ voice.”
Supreme Court
New York Times: Senate Formally Takes Up Gorsuch Nomination, and Braces for Turmoil
By Matt Flegenheimer
The Senate on Tuesday began formal debate on the Supreme Court nomination of Judge Neil M. Gorsuch, hurtling toward a blistering partisan conflict this week over the selection itself, the chamber’s future rules and the decaying standards of civility among lawmakers.
The consideration of Judge Gorsuch began as the Republican majority leader, Senator Mitch McConnell of Kentucky, took a procedural step to end debate this week on President Trump’s nominee. Mr. McConnell’s maneuver will set in motion a series of critical votes expected to take place on Thursday and Friday. With an almost certain Democratic filibuster of the nomination, the Senate is to vote first on whether to end debate and proceed to an up-or-down vote.
If the filibuster holds, meaning fewer than 60 senators vote to proceed to a full vote on the nominee, Republicans have said they will pursue the so-called nuclear option: changing longstanding rules to elevate Judge Gorsuch on a simple majority vote. That would allow Judge Gorsuch to be confirmed on Friday.
The Hill: Do Democrats oppose Gorsuch because they hate free speech? (Yes.)
By David Warrington
In one particularly telling exchange, Gorsuch correctly explained that disclosure laws threaten freedom of speech-a long-recognized principle in constitutional law. He cited the 1958 NAACP v. Alabama case, where the Ku Klux Klan supported attorney general of Alabama subpoenaed the NAACP for membership and supporter information. An action clearly intended to intimidate the NAACP and its supporters and stop its civil rights activity in Alabama.
The Supreme Court recognized that seeking membership and supporter information about organizations engaged in political advocacy was akin to asking members of a particular religion to wear identifying armbands and that such activity was offensive to the First Amendment.
Unwilling to accept that principle based on the Constitution and precedent, Whitehouse argued that chilling the First Amendment in favor of disclosure is a value he supports.
Clearly Whitehouse thinks his personal value of disclosure trumps the Constitution.
Judge Gorsuch did not base his answers on his personal values. Instead, he stuck to the Constitution and precedent.
The Courts
Memphis Commercial Appeal: Memphis judge throws out state billboard act
By Tom Charlier
Throwing out a law that’s governed outdoor advertising in Tennessee for the past 45 years, a federal judge in Memphis has ruled that the state’s Billboard Regulation and Control Act is an unconstitutional restriction of free speech.
U.S. District Judge Jon P. McCalla said the 1972 law “does not survive First Amendment scrutiny” because it bans some forms of commercial and non-commercial speech based on content. The ruling Friday came down on the side of Memphis billboard operator William H. Thomas Jr., who had alleged in a lawsuit that Tennessee Department of Transportation officials violated his constitutional rights in their efforts to remove a sign he constructed at the Interstate 40-240 interchange in East Memphis despite being denied a permit for it…
The ruling follows a 2015 U.S. Supreme Court decision striking down portions of an Arizona town’s sign ordinance on free-speech grounds, a case cited by McCalla. With the latest decision, similar litigation is likely to be lodged against other states’ billboard laws, say advocates of controls on outdoor advertising.
Congress
Observer: Democrat Senator Claims Wall Street Backed Bernie Sanders to Stop Clinton
By Michael Sainato
In an interview on MSNBC’s Morning Joe on April 4, Sen. Sheldon Whitehouse made the bizarre claim that Wall Street donors backed Sen. Bernie Sanders over Hillary Clinton during the Democratic primaries because they wanted to provide Donald Trump with a weak candidate in the general election.
“They did not want Hillary Clinton to win, that’s why Wall Street money supported Bernie Sanders in in the Democratic primaries to take her out because they thought she would be the stronger candidate. You can’t pretend that didn’t happen,” Whitehouse said, citing no evidence or data to corroborate this claim…
Sanders didn’t accept money from Super PACs, meaning that every one of his donors was bound to the $2,700 individual campaign contribution required under campaign finance law. Clinton, on the other hand, depended on Super PAC money and Wall Street to keep up with Sanders’ grassroots fundraising…
Whitehouse likely knows the extent of the Clintons’ relationship with Wall Street. Perhaps his comments were made to seed doubt over whether Wall Street is fully ingrained with the Democratic Party, which was made obvious by Hillary Clinton’s nomination and the way she campaigned.
The States
Oklahoma City Journal Record: Transparency for government; privacy for individuals
By Jonathan Small
Senate Bill 579 would require groups spending to advocate for or against a ballot measure, or even “publishing or otherwise offering educational information” about it, to make public the names of all their supporters.
We already have strict reporting rules for donors to election campaigns and political parties. Transparency is important when it comes to politicians. However, this bill goes much further, and it could threaten, rather than encourage, free discussion.
The bill targets what some deceptively call dark money. But calling private donations dark money is like saying a private ballot is dark voting. People working together for a cause, whether in a small community group or a big coalition like the National Rifle Association, have a right to assemble and speak without their names going on a government list.
Under SB 579, if a group simply educated people about a ballot measure, its entire donor lists could be accessible. And we’ve seen too many instances where donors have been subject to harassment, firing, or death threats.
Santa Fe New Mexican: Legislators await Gov. Martinez’s decision on $6.1B spending plan
By Andrew Oxford
A prominent Republican made a public call last week for Martinez to sign a campaign finance law sponsored by Wirth that would shine a light on what reform advocates call “dark money.”
Senate Bill 96 would require groups such as corporations and other organizations that are not operated primarily for a political purpose to identify funders when buying campaign ads.
The bill has won increasingly vocal support from conservative activists.
In an opinion piece published by The New Mexican last month, Trevor Potter, a Republican campaign finance lawyer and president of the Campaign Legal Center, wrote: “Disclosure of the sources of money spent to influence our elections has long been considered a central tenet of a free and transparent democracy. Martinez should recognize the merits of disclosure and sign this critical bill into law.”
But the bill has also met with bipartisan opposition, with some critics arguing the measure would have a chilling effect on political advocacy.
Albuquerque Journal: Campaign finance bill lets you see who funds whom
By Editorial Board
Senate Bill 96, which passed by wide margins in the House and Senate with some bipartisan support, is another step toward letting the public know the names behind the “dark money” being poured into political campaigns at every level.
The bill requires political action committees, certain nonprofits and independent expenditure groups that spend more than $1,000 on most types of political advertising to disclose the names of their donors…
Opponents say the bill violates free speech rights because nonprofits will be forced to reveal the names of all their donors. But the bill applies only to nonprofits that contribute more than $1,000 to a particular candidate or issue…
SB 96 also doubles the current cap on campaign contributions for legislative candidates – from $2,500 per election cycle to $5,000 per cycle – but would slightly lower the maximum allowed donation for statewide candidates.
Introduced by Senate Majority Leader Peter Wirth, D-Santa Fe, (and co-sponsored by Rep. Jim Smith, R-Tijeras), SB 96 is awaiting Gov. Martinez’s signature.
Denver Post: A sordid tale of Colorado campaign finance
By Megan Schrader
The best drama in Colorado politics isn’t occurring under the gold dome, but in a courtroom. And not even a criminal one, but in an administrative law court.
That’s where campaign finance disputes land in this state…
Matt Arnold is a much-maligned stickler for campaign finance laws. He’s suing a 501(c)4 “social welfare” nonprofit run by former congressman and two-time gubernatorial candidate Bob Beauprez. Beauprez’s group is called Colorado Pioneer Action.
Arnold is no angel. In fact, he is a polarizing and litigious figure who frequently files nitpicky complaints against entities with which he has personal conflicts.
But there is a legitimate question in his complaint of whether what Beauprez did, which was to operate a social welfare 501(c)4 nonprofit alongside an independent expenditure committee to shield donors from campaign finance laws, violates state laws. The action is not unique and falls into a gray area in campaign finance law the courts should help clarify.
Colorado Independent: A dark money lawsuit, a colorful cast of characters, and Colorado’s citizen campaign finance cop
By Corey Hutchins
The scenario that brought this cast of characters together last week – and the way the proceedings were carried out – would not likely happen quite the same way in any other state.
In most states, if a politician or political group is believed to have run afoul of campaign finance law, a government panel or commission would screen an official complaint. An attorney general, an ethics agency, or the state police might investigate.
In Colorado, anyone who lodges a complaint about a suspected campaign finance violation has to prove his or her own case against an alleged violator in a courtroom setting that at times can feel like a full-blown trial…
Because of this set-up, the state of Colorado is currently facing a pending federal lawsuit from a Washington, D.C.-area legal nonprofit that attacks Colorado’s private-party enforcement system as unconstitutional. The nonprofit law firm Institute for Justice claims such a system “empowers political insiders to silence any ordinary speaker they disagree with.” The law firm represents a Colorado mom who was sued twice by her local school board after she placed ads in her local newspaper to alert readers to the upcoming board elections.
North Dakota Prairie Public Broadcasting: House passes campaign finance reform bill
By Dave Thompson
The House has passed a new campaign finance reporting bill.
It expands what candidates have to report to the Secretary of State to include campaign expenditures and the amount of contributions under that $200 threshold. Contributions over $200 are reported individually. It also prohibits a candidate form using campaign contributions for personal things.
“I hope that we as a Legislature give this strong support,” said House Minority Leader Corey Mock (D-Grand Forks). “We will send a message to all North Dakotans that we are not afraid of a little sunlight.”
But Rep. Dan Ruby (R-Minot) thought the bill went too far.
“Some of these provisions are just going to be more complicated, with more paperwork,” Ruby said. “Really, who’s even going to look at it? Not the general public. It’ll be the opponents.”
The bill passed 75 to 16. It goes back to the Senate to see if it concurs with House changes.
Meriden Record-Journal: Bill targets litigation aimed at deterring free speech
By Mike Savino
Free speech advocates are pushing for legislation that would make it easier to dismiss lawsuits aimed at deterring people from exercising First Amendment rights. The bill, targeting so-called strategic litigation against public participation, or SLAPP, would create a special motion defendants can file to seek dismissal of the complaint.
The motion would lead to an expedited hearing, at which time a defendant could argue that the lawsuit is based on First Amendment activity and has no merit. A judge agreeing with the argument could dismiss the case.
“It gives defendants a way to short-circuit litigation that’s only designed to harass, threaten, and intimidate,” Eric Parker, a reporter with WFSB, testified during a public hearing Monday before the Judiciary Committee…
Chris VanDeHoef, executive director of the newspaper association, said the law protects First Amendment rights beyond journalism, as it would also apply to those who face SLAPP lawsuits for protests or other constitutionally protected actions…
ACLU CT Executive Director David McGuire said in written testimony that SLAPP lawsuits “chill free speech and limit public discourse.”
