New from the Institute for Free Speech
Did a D.C. Federal Court Fail the “Major Purpose Test”?
By Mike Columbo
A recent opinion by Judge Christopher R. Cooper of the federal District Court in Washington, D.C. poses new risks for advocacy groups and their supporters. The ruling erodes a constitutional limitation on the power of the government to compel Americans speaking about policy issues to register themselves as political committees (PACs) with the Federal Election Commission (FEC)…
Judge Cooper’s decision would create a strong presumption that broadcast issue ads run shortly before an election, so-called “electioneering communications,” are evidence the group’s major purpose is to elect candidates, and therefore that it must be regulated as a PAC. This presumption would include communications merely urging citizens to contact their representatives about matters then pending in Congress.
This requirement is conspicuously absent from the relevant statute, and constitutes a reversal of decades of FEC policy. As applied to one group’s ads broadcast in 2010, it thus raises troubling First Amendment, Due Process, and Separation of Powers concerns. After the FEC could not agree on whether to appeal the decision or conform to it by a required four votes, the complainant filed a federal lawsuit asking to assume the role of the FEC and enforce this new policy itself.
At the heart of the case are people facing unforeseeable punishment and other infringements for associating and engaging in political speech eight years ago. Especially when the regulation of our political speech is involved, Americans share a right to know the law in advance.
First Amendment
Wall Street Journal: A Mayor Tries to Zone Out Free Speech
By Margot Cleveland
The U.S. Supreme Court is considering a constitutional challenge to a California law targeting pro-life pregnancy centers. The so-called FACT Act requires the centers to tell clients they may qualify for subsidized abortions-a clear example of compelled speech. But such laws aren’t the only threats to the centers’ freedom of speech. At the local level, activists have begun a quiet push to protect the abortion industry through zoning.
Last month the Women’s Care Center, which operates 28 pregnancy and family-resource centers in 10 states, became the latest target. A Texas-based abortion-clinic chain, Whole Women’s Health, convinced the mayor of South Bend, Ind., to veto a decision by the city’s Common Council rezoning a house for a Women’s Care Center next to a planned abortion clinic.
Mayor Pete Buttigieg made clear the veto was motivated by the center’s pro-life message: “In my judgment, the neighborhood would not benefit from having the zoning law changed in order to place next door to each other two organizations with deep and opposite commitments on the most divisive social issue of our time,” he wrote. “It is far from clear that a neighborhood benefits from co-locating facilities with such opposite views.” …
Mr. Buttigieg’s decision will subject the city to legal liability under the First Amendment-that is, unless the Common Council overrides the veto when it meets Monday. That would be a victory for choice, for South Bend-and for the Constitution.
Supreme Court
The Hill: A dress code for polling places? Supreme Court to decide constitutionality
By Wen Fa and Deborah J. La Fetra
Minnesota outlaws any t-shirts, buttons, caps, or other apparel containing “political” content at the polling place…
During oral argument in February to determine if the court would strike down the Minnesota law, the justices posed a series of probing and challenging questions to evaluate the legal issues at stake. Justice Samuel Alito cut to the heart of the case with his questions centered around whether the breadth of the Minnesota law would enable discrimination based on political viewpoints.
“The problem is that so many things have political connotations, and the connotations are in the eye of the beholder,” Alito said. “And on election day, you’re going to have hundreds, maybe thousands of officials in Minnesota, and every one of them probably thinks that he or she is the reasonable observer, and they’re making a determination about whether something has political connotations.”
Alito’s observation is a concise summation of why the Minnesota law is an attack on free speech. Whenever politicians and bureaucrats are tempted to put their own convenience or agenda over the First Amendment’s protection of core rights of expression, they need to be dressed down. The Supreme Court’s forthcoming decision should do just that.
The Courts
Wall Street Journal: NRA Sues New York After Insurance Crackdown
By Leslie Scism and Joseph De Avila
The National Rifle Association on Friday sued New York Gov. Andrew Cuomo and financial regulators, accusing the state of an unconstitutional “political blacklisting campaign” to stop banks and insurers from doing business with the group.
The firearms-advocacy organization filed a lawsuit in U.S. District Court for the Northern District of New York following a crackdown by state officials since last fall on the NRA’s “Carry Guard” insurance program, which helps to provide funds for legal fees in self-defense shootings. New York regulators said the program has elements that violate the state’s insurance laws.
Last month, Mr. Cuomo directed the state’s Department of Financial Services “to urge companies to weigh reputational risk of business ties” to the NRA and similar organizations.
The lawsuit alleges New York officials have used “selective prosecution, backroom exhortations, and public threats with a singular goal-to deprive the NRA and its constituents of their First Amendment right to speak freely about gun-related issues and defend the Second Amendment.”
Courthouse News Service: 11th Circuit Punts State Republicans’ Challenge of FINRA Rule to D.C.
By Levi Lass
The 11th Circuit punted two state Republican party organizations’ challenge to a Financial Industry Regulatory Authority rule governing political contributions to the D.C. Circuit, and dismissed a third for lack of jurisdiction.
The New York Republican State Committee, the Tennessee Republican Party, and the Georgia Republican Party challenged the Securities and Exchange Commission’s approval of FINRA’s adoption of rule 2030, “a regulation governing the political contributions of FINRA members who solicit government officials for investment advisory services contracts.” The rule also contains a provision to prevent loopholes by making indirect contributions to government officials…
The parties claim that the SEC does not have the authority to impose the regulation and that the new rule violates the First Amendment and will harm fundraising efforts because some placement agents will be barred from placing contributions.
Congress
Concord Monitor: A new approach to big money in politics
By Russ Feingold and Rep. Ro Khanna (D-CA)
If McCain-Feingold was the campaign finance gold standard of its time, the Democracy Dollars Act is the boldest campaign finance proposal today. The act provides every registered voter 50 “Democracy Dollars” – $25 for presidential elections, $15 for Senate and $10 for House campaigns.
This may seem like pocket change, but multiply it by the hundreds of thousands of people who vote and suddenly those Democracy Dollars could help counter the super PACs and dark money.
The plan is to reduce the influence of big money in politics, but without violating Citizens United, which while incorrect is still legal precedent for the time being. Even in this legal climate, the Democracy Dollars Act would bring balance to special interest contributions with the financial power of voters…
The Democracy Dollars Act nationalizes the Democracy Dollars model successfully implemented in Seattle and being considered elsewhere in the country.
If money is wrongly defined as speech, we must amplify the voices of the plurality of Americans so they are heard over the roar of the top one percent…
The Democracy Dollars model offered in the Democracy Dollars Act reclaims our democracy from special interests’ influence and protects the integrity of American elections, while respecting the Supreme Court’s current interpretation of money as speech.
Independent Groups
CNN: Beto O’Rourke told PACs to stay out of his race. They aren’t listening
By Nathan McDermott
This past Thursday, the Democratic Coalition, a liberal super PAC, announced it would be launching an initiative to support O’Rourke’s Senate campaign. After the announcement, the congressman from Texas told CNN, “I’m not interested in the help of any PACs or super PACs, including this one.”
Scott Dworkin, the co-founder of the Democratic Coalition, isn’t concerned that the candidate he supports is explicitly asking him not to get involved, and vows that his organization will push forward regardless.
“Campaigns can say whatever they want, that’s fine, but I mean, we get involved with whatever we want,” Dworkin said.
The impasse highlights the awkward dynamic candidates like O’Rourke who have taken a stand against dark money groups face; they can rail against PAC money on the trail all they want, but they’re powerless to stop the groups from spending money in support of their candidacies…
In April, Democratic donor Marc Stanley announced he was launching his own super PAC, FTC PAC, which is short for Fire Ted Cruz, to support O’Rourke. And billionaire Tom Steyer has also said he was considering getting his super PAC, NextGen America, into the senate race.
Then, as now, O’Rourke rejected the super PACs’ support.
Since then, Steyer hasn’t taken any public steps towards supporting O’Rourke’s campaign, while Stanley has vowed to move forward.
The States
San Diego Union-Tribune: History shows that outside money in San Diego races doesn’t necessarily bring success
By Joshua Stewart
In 2012, then-Rep. Bob Filner’s campaign for San Diego mayor was buttressed by independent expenditure committees that collectively raised about $2.16 million, records show.
Much of it came from organized labor including $500,000 in contributions from the Congress of Industrial Organizations. He beat then-Councilman Carl DeMaio, whose campaign had about $900,000 more in combined support from his official committee and outside groups.
Former Assemblyman Nathan Fletcher, an independent, benefitted from about $1.83 million given to the official campaign committee and outside expenditure accounts in his 2013 bid to become San Diego mayor after Filner was forced out by a sexual harassment scandal.
Despite support from Qualcomm, labor and others that made him the best-funded major candidate, Fletcher finished third place in the primary election – behind City Councilman David Alvarez and the eventual victor, Mayor Kevin Faulconer.
In of the the most striking instances of money not swaying outcomes in San Diego, self-funded mayoral candidate Steve Francis put about $4.56 million of his own cash into his campaign in 2008. He failed in his challenge to the incumbent mayor at the time, Jerry Sanders, who raised less than $1 million…
“It’s about spending smart and targeting the right voters with the right message,” Posner wrote in an email. “That’s how Stephan’s campaign could out-raise us 2-1 and still find themselves tied in a poll before the IE money came in on our side.”
St. Louis Post-Dispatch: Critics: Illinois governor’s race shows need for campaign finance reform
By Sarah Zimmerman, AP
This year’s Illinois governor’s race between uber-wealthy candidates could be the costliest in U.S. history and perfectly illustrates the need for a campaign finance system that isn’t so rigged in favor of the rich, say critics pushing for a system that would match small donations with public funds.
The small-donor matching program won approval in the Illinois Senate last year but its chances are bleak in the state House…
Under the proposed plan, qualifying candidates could use matching public funds for donations of up to $150. Contributions would be capped at $500 and money from lobbyists or interest groups would be barred.
A House committee heard testimony this month but didn’t vote and the legislation is not positioned for approval before the General Assembly’s scheduled May 31 adjournment…
Ian Vandewalker, a campaign finance reform expert with the Brennan Center for Justice at the New York University School of Law, agreed that the plan can combat the “money arms race in politics” by opening the door for bright candidates who can draw a following but lack cash.
But he cautioned that the plan wouldn’t be very effective without lowering contribution limits for all candidates, whether they participate or not.
Annapolis Capital Gazette: ‘Not authorized’ signs targeting 3 Republicans pop up in Arnold and Severna Park
By Chase Cook
The handful of signs read “Peroutka = White Supremacy, Leopold = Convict and McConkey = Disbarred, We deserve better leaders, do your research, vote November 6.” The bottom of the sign is labeled with: “Not authorized by any opponent.”
Because of this, the person or people behind them might be breaking Maryland election laws.
All sorts of campaign signs are cropping up across the county as the June 26 primary election looms closer. Most of those signs follow state rules, though some observers are complaining about illegally placed signs.
Because this sign has the words “vote” in it, it is clearly campaign material and is subject to election laws, said Jared DeMarinis, director of the Maryland State Board of Elections’ Candidacy and Campaign Finance Division.
While the sign is dubious, DeMarinis wouldn’t go so far to say the sign required action.
“We have not received any complaints about this sign,” DeMarinis said. “It becomes an enforcement matter. Not our domain to pull up the signs.”
Maryland campaign materials require an authority line. A campaign or group has to list who authored and paid for the sign. That authority line typically has the organization and treasurer’s name. In the case of an individual purchasing the sign, name and address is required, under Maryland election law.
