In the News
Evansville Courier & Press: Indiana among top states 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. Fortunately, Indiana 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 Indiana 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 further.
That means stringent campaign finance laws tend to favor incumbents and hinder challengers…
Lawmakers in Indiana deserve praise for preserving their constituents’ First Amendment freedoms. 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 really, they are protecting themselves.
New from the Institute for Free Speech
Comments to FEC on Notice 2018-05 (Rulemaking Petition Concerning Former Candidates’ Personal Use)
By Allen Dickerson
The underlying petition asks the Commission to enact a regulation 1) clarifying the “permissible and impermissible uses of campaign funds for an individual who is no longer a candidate or officeholder,” and 2) establishing “a point at which a former candidate or officeholder’s continued spending of leftover campaign funds becomes . . . presumptively personal use.” To support this course, the Petition points to reporting by the Tampa Bay Times purporting to demonstrate prohibited and potentially-prohibited uses of campaign funds by former officeholders.
The activity uncovered by the Times is concerning. It suggests that the Commission has failed to adequately enforce its existing rules prohibiting personal use of campaign funds…
Rather than add pages to its already complex and voluminous regulations, especially where doing so would not alter the substantive obligations of regulated parties, the Commission should prioritize the development of procedures that can catch the sorts of expenses the Times identifies-especially those most likely to be per se violations. Furthermore, if the Times correctly suggests that the Commission has a policy of ignoring suspicious spending below a certain threshold, that policy should be reconsidered, and Congress should be asked to provide the resources required for proper enforcement in this area. In addition, the Commission should adopt a policy of alerting candidates to the personal-use prohibition at the conclusion of each election cycle and, in the case of sitting officeholders, upon retirement.
By Luke Wachob
“This is like the Death Star. In Star Wars, they didn’t go fight the evil empire on every single planet. They went after the Death Star, and once they won the Death Star, everything else moved, you know, in a better direction.” That was how Senator Sheldon Whitehouse explained the importance of eliminating so-called “dark money” during remarks at a Monday event at the Center for American Progress…
To Senator Whitehouse, “dark money” is not just political spending by nonprofit organizations that aren’t required to disclose their donors. In his usage, “dark money” encompasses spending by any organization that seeks to influence political debates or the law while protecting the privacy of its supporters. Indeed, Senator Whitehouse’s remarks included attacks on everything from ad campaigns that support or oppose the confirmation of judicial nominees to the filing of amicus briefs – yes, amicus briefs – as tools for nefarious special interests to corrupt government.
These comments make clear that if advocates for greater regulation of political speech are successful, they will not stop at regulating speech that seeks to influence the outcome of elections. Speech that seeks to influence votes on legislation, or rulings in administrative agencies, or court decisions would all be fair game for government regulation. Or, as Whitehouse put it, “[dark money] is after us in elections, it is after us in administrative agencies, it is after us in the halls of Congress.” And he intends to stop it.
Congress
The Hill: Dems expand 2018 message to ‘draining the swamp’
By Mike Lillis
[I]nternal poll results, Democrats say, show that voters respond more favorably to the party’s economic platform when it’s coupled with promises to weed out corruption and the influence of money in Washington. Their response, unveiled Monday, is their “Better Deal for Our Democracy,” which features a series of specific proposals designed to encourage voting, limit the sway of lobbyists, bolster ethics standards for Washington policymakers and reform the nation’s campaign finance laws by barring unlimited and anonymous donations…
Democrats vow that if they win the power in Washington, they’ll enact new campaign finance laws that would overturn the Supreme Court’s Citizens United decision by putting caps on donations and outlawing anonymous contributions in the name of accountability and transparency…
“Instead of delivering on his promise to ‘drain the swamp,’ President Trump has become the swamp,” Pelosi said at Monday’s messaging event.
“We want Republicans and their corrupt, big donor-driven agenda to get out of the way. It has given the American people a raw deal.” …
“In this election, phony front groups with names like ‘Rhode Islanders for Puppies and Peace and Prosperity’ are going to show up on our televisions and pour their smear ads into our living room. And all of it is anonymous,” said Sen. Sheldon Whitehouse (D-R.I.).
Washington Post: Democrats just rolled out a broad reform agenda. Would it make a difference?
By Paul Waldman
[T]he Democrats’ new plan is general and vague, pitched to voters with marginal awareness who only need to be convinced that there’s a problem with the system and that Democrats want to do something about it… But there is policy meat underneath it, in the form of bills Democrats have been introducing for the past couple of years…
Ethics: New enforcement power for the Office of Government Ethics, tighter disclosure requirements for lobbyists.
Campaign finance: Tax-deductible donations for House candidates, 6-to-1 matching of contributions up to $150 to enhance value of small-dollar contributions, a constitutional amendment to repeal the Citizens United decision…
When I asked about the fact that combating the influence of dark money has become a years-long game of whack-a-mole, with some new vehicle for pouring money into campaigns cropping up whenever new restrictions are put on the last one (527s, super PACs, 501(c)(4)s), Sarbanes stressed that while we can keep trying, the best way to deal with it is by enhancing the role of small-dollar contributions.
“Let’s build a completely different place for candidates to go to fund their campaigns,” he said. “Give the power back to everyday Americans. And then you’d see a lot of candidates would abandon those special interests, because they’d much rather be turning in the direction of their constituents.”
CNN: Democrats rip Trump over failed ‘swamp’ cleaning, promise a ‘better’ plan
By Gregory Krieg
Democratic leaders Chuck Schumer and Nancy Pelosi, along with Sarbanes, who chairs the party’s “Democracy Reform Task Force” on Capitol Hill and has introduced a comprehensive reform bill called the “Government by the People Act,” are hoping this new effort will inspire more faith from voters who might doubt that the party’s increasingly ambitious policy goals — like a deepening commitment to universal health care — will ever get a fair hearing in the swamp.
“We think this (new rollout) caffeinates, makes stronger and reinforces, all the other messages that are part of ‘The Better Deal,'” Sarbanes said. “‘A Better Deal for our Democracy’ is telling people that we want to find a way to give them their institutions back and make their voice count again.”
That means encouraging policy points like… shining new light — and toughening enforcement — on dark money groups and, ultimately, reversing the effects of the Supreme Court’s Citizens United decision with new legislation.
Rep. Pramila Jayapal, a Washington state Democrat, argued that without campaign finance reform, almost all progressive legislation, no matter how popular, was ultimately be doomed.
“We know that big donors, that the NRA, the Koch Brothers, that all of these special interest groups actually own Republican members of Congress,” she said. “They give them money, they throw resources into tight races and, in return, they receive a not-so-secret promise from Republicans to slow or to shred any meaningful legislation to address our nation’s biggest problems.”
Internet Speech Regulation
Bloomberg: Tech Advertising Group Urges More Online Political Ad Disclosure
By Naomi Nix
An advertising industry group representing the largest technology companies in the U.S. is urging marketers to disclose more information about who’s paying for online political ads.
The Digital Advertising Alliance on Tuesday released a set of principles for its members to adhere to, including displaying a special icon to identify a political ad, along with links to the political advertiser’s name, contact information and a government database with contribution or expenditure records.
While the guidance doesn’t have the force of law behind it, the alliance said it would encourage compliance through the Council of Better Business Bureaus and the Data & Marketing Association, who may publicly shame uncooperative advertisers or report any applicable offenses to the relevant regulators…
Separately, Senators Mark Warner, a Virginia Democrat, and Amy Klobuchar, a Minnesota Democrat, have introduced the Honest Ads Act, which would subject online political ads to similar disclosure rules that now govern advertising content in other media such as TV and radio.
And the Federal Election Commission is also considering new regulations that would require disclaimers identifying the sponsors of online, mobile and other forms of digital advertising, offering alternative rules.
Wall Street Journal: Ad Group Announces Rules for Transparency in Political Advertising
By Benjamin Mullin
As mid-term elections get underway and lawmakers in Washington contemplate new rules to regulate political advertising online, the digital advertising industry is attempting to beat them to the punch…
The guidance requires advertisers to provide consumers with a link to a searchable database with more information about who placed the ad, their spending and contributions, and how the advertiser can be reached, among other things.
The disclosures apply to ads “that expressly advocate the election or defeat of a candidate for federal office and in certain state-wide elections,” according to the Digital Advertising Alliance…
Facebook itself has announced plans to disclose additional information about the political ads purchased on its platform, a move that has rankled some publishers who are concerned that the social media giant’s guidelines are overbroad…
The centerpiece of the new initiative from the Digital Advertising Alliance is an icon, called “PoliticalAd,” that will be displayed on political advertisements and direct consumers to additional information about the advertiser. It is similar in size and appearance to the “AdChoices” logo, also developed by the group, which provides consumers with context about various advertisers.
Violations of the new guidelines will be watchdogged by a group within the Council of Better Business Bureaus and the Data and Marketing Association, which can flag offenders and refer problems to the Federal Election Commission.
FEC
Las Vegas Review-Journal: Heller didn’t return illegal campaign donations, Democrats charge
By Gary Martin
In the latest turn in the bruising Senate battle in Nevada, the state Democratic Party filed a complaint Monday with the Federal Election Commission accusing Republican Dean Heller of failing to refund 2012 contributions from a company that made illegal campaign donations.
The complaint focused on donations to Republican candidates, including Heller, from employees of the Cancer Treatment Centers of America that were later deemed illegal by the FEC…
Cancer Treatment Centers of America was found by the FEC to have violated campaign finance laws by paying bonuses to managers to cover their political contributions to candidates and Republican groups.
Bloomberg News first reported that the company was ordered to contact 35 candidates and campaign committees in August 2017 to request they turn those contributions over to the Treasury Department.
In its complaint with the FEC, the Nevada Democratic Party said Heller’s campaign never gave $27,500 in contributions from employees of the cancer centers to the Treasury.
Online Speech
Washington Times: Conservative activists launch effort to combat social-media political bias
By Valerie Richardson
Conservatives Against Online Censorship launched [last] Tuesday in an effort to “draw attention to the issue of political censorship on social media,” starting with Facebook, Twitter, Google and YouTube.
Brent Bozell, president of the Media Research Center, called social media “the most expansive and most game-changing form of communication today.”
“It is these facts that make online political censorship one of the largest threats to free speech we have ever seen,” Mr. Bozell said in a statement. “Conservatives should be given the same ability to express their political ideas online as liberals, without the fear of being suppressed or censored.” …
The group urged companies to “make equal room for conservative groups as advisers to offset this bias,” and to expand employment diversity efforts to include “viewpoint diversity.”
Finally, the coalition argued that tech giants should implement policies that “mirror the First Amendment,” which would allow companies to block content that “threatens violence of spews obscenity, without trampling on free-speech liberties.”
The States
Tampa Bay Times: Florida’s porous campaign finance laws: ‘You can do almost anything’
By Gary Fineout, Associated Press
Campaigns are interpreting the law so liberally – and some experts think they will get away with it – that it could essentially render the laws meaningless…
Some of the ads are being paid for by groups that insist they have no legal obligation to disclose who’s paying for them. Other ads are being coordinated with campaigns relying on their own legal interpretation to sidestep laws and rules intended to place limits on ad campaigns being funded by large donors.
But the surge of ads highlights Florida’s arcane and loosely regulated campaign finance system. Over the years, the Republican-controlled Legislature has made it easier for candidates and their allies to raise large amounts of money, while at the same time making it harder for the state’s elections commission to go after those who violate the law…
Here’s a look at the ways that campaigns and groups are navigating state laws…
Portland Press Herald: Budget typo holding up millions in Maine ‘clean election’ funds
By Kevin Miller
Lawmakers failed to pass a routine “errors and inconsistencies” bill to correct unintended budget language that prevents the Maine Ethics Commission from disbursing additional money to so-called “clean election” candidates starting on July 1. As a result, more than 200 legislative candidates and potentially three gubernatorial campaigns will be unable to tap into at least $3 million – money that lawmakers already have budgeted for the public campaign finance system – in the final months of the election season…
[B]ecause there is no limit on how much money a privately financed candidate can raise or spend, the Clean Election Act allows publicly financed candidates to qualify for “supplemental payments” through the November election…
It’s those “supplemental payments” that are now in doubt…
It is unclear what options, if any, are available if the Legislature does not fix the issue during a special session. While some have speculated LePage could free up the money by issuing a financial order, others questioned the legality of such a move even if the governor was willing to shore up a public campaign financing system that he and other critics often decry as “welfare for politicians.”
Concord Monitor: Democratic candidates for governor spar over campaign contributions
By Paul Steinhauser
Democratic gubernatorial candidate Steve Marchand on Friday announced that his campaign will return the corporate contributions it’s accepted.
“We seek to practice what we preach in terms of fundamentally transforming the way campaigns are funded in New Hampshire,” the former Portsmouth mayor said, indicating he will return $13,000 in corporate contributions he’s received since launching his second straight campaign for governor.
Former state Sen. Molly Kelly of Harrisville, who joined Marchand in the race for the Democratic gubernatorial nomination last month, urged him to give back the money…
“Although less than one-quarter of 1 percent of our contributors were classified as corporate, we have contacted all six people and let them know we are returning their contribution,” he said…
For the second time in recent days, Marchand also invited Kelly to join him in taking the People’s Pledge.
The pledge to limit third party spending in an election gained attention in 2012 when it was agreed to by Massachusetts incumbent Republican Sen. Scott Brown of Massachusetts and his Democratic challenger Elizabeth Warren.
