In the News
Illinois Business Journal: Counterpoint: Should the U.S. Constitution be amended to reverse Citizens United? No: Government power over campaign spending is a threat to free speech
By Bradley A. Smith
Laws banning corporate speech do not just silence major for-profit firms. They also silence nonprofit advocacy groups. Justice Anthony Kennedy listed examples of speech that would constitute a felony prior to Citizens United: “The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” …
An amendment reversing Citizens United would be most dangerous for critics of powerful politicians, not those already with money and power. History teaches us that giving government power over speech, however indirect, inevitably harms marginalized groups and critics of the government. America’s strong protections for political speech were developed by generations who discovered that, unless the First Amendment was given a robust interpretation, in practice it was easy for governments to shut down their critics. Those on the outskirts of acceptable political opinion, from civil rights activists to Communist Party members, found themselves at risk of being arrested, fined, and subject to retribution simply for speaking their minds.
This history should inform the current debate. Government officials typically do not go after the message they want to censor directly. Instead they target the methods employed by groups they wish to stop. Political spending is one method that is always under attack.
ICYMI
Opinion of the Supreme Court in Lozman v. Riviera Beach
Held: The existence of probable cause does not bar Lozman’s First Amendment retaliation claim under the circumstances of this case.
Ed. Note: On page 10 of the opinion, the Court cites the Institute for Free Speech, noting the “risk that some police officers may exploit the arrest power as a means of suppressing speech.”
You can view our entire brief, co-authored by Floyd Abrams, here.
Supreme Court
USA Today: First Amendment victory is Florida man’s second at Supreme Court
By Richard Wolf
The high court ruled 8-1 that Fane Lozman can pursue his claim that the city of Riviera Beach retaliated against him when it arrested him more than a decade ago for disturbing a government meeting. Justice Anthony Kennedy wrote the decision; Justice Clarence Thomas dissented…
At oral argument in February, nearly all the justices found little basis for Lozman’s treatment. But they worried that a ruling in Lozman’s favor could cause problems for police who make split-second decisions to arrest people who they believe are committing more serious crimes.
Jeffrey Wall, the Trump administration’s principal deputy solicitor general, warned the justices that a ruling for Lozman could implicate some of the 10 to 11 million arrests made each year by police who “aren’t lawyers. They arrest based on conduct.”
But Pamela Karlan, co-director of Stanford Law School’s Supreme Court Litigation Clinic, said approving Lozman’s arrest would allow “every vengeful city council in America to go after people when they demonstrate against abortion clinics, when they demonstrate about police, when they protest zoning decisions.”
In his ruling, Kennedy agreed that police “need the safe harbor of probable cause in the First Amendment context to be able to do their jobs effectively.” At the same time, he said, “there is a risk that some police officers may exploit the arrest power as a means of suppressing speech.”
SCOTUSblog: Opinion analysis: With facts like these …
By Heidi Kitrosser
The Supreme Court granted certiorari to consider whether “the existence of probable cause defeat[s] a retaliatory arrest claim as a matter of law.” The city asked the court to answer that question in the affirmative by extending Hartman v. Moore – which applied a probable cause bar against First Amendment claims of retaliatory prosecution – to the retaliatory arrest setting. For his part, Lozman urged the court to apply the approach of Mt. Healthy City Board of Education v. Doyle. Under the Mt. Healthy rule, a plaintiff establishes speech-based retaliation by demonstrating that the defendants would not have taken the challenged action but for their retaliatory motive.
In his opinion for the Supreme Court, Kennedy acknowledged strengths in each side’s position. He agreed with the city that “it can be difficult to discern whether an arrest was caused by an officer’s legitimate or illegitimate consideration of speech… And the complexity of proving (or disproving) causation in these cases creates a risk that the courts will be flooded with dubious retaliatory arrest suits.” At the same time, Kennedy recognized that:
“There are substantial arguments that Hartman’s framework is inapt in retaliatory arrest cases, and that Mt. Healthy should apply without a threshold inquiry into probable cause. For one thing, the causation problem in retaliatory arrest cases is not the same as the problem identified in Hartman. Hartman relied in part on the fact that, in retaliatory prosecution cases, the causal connection between the defendant’s animus and the prosecutor’s decision to prosecute is weakened by the ‘presumption of regularity accorded to prosecutorial decisionmaking.’…That presumption does not apply in this context… In addition, there is a risk that some police officers may exploit the arrest power as a means of suppressing speech.”
Ultimately, the majority concluded that the Mt. Healthy test, with no threshold probable cause bar, must apply in Lozman’s case.
Internet Speech Regulation
Vice News: Pro-Trump Republican Corey Stewart benefited from illegal campaign ads on Facebook
By Alex Thompson
“These platforms continue to prove susceptible to exploitation by unscrupulous parties and bad actors – and voluntary measures alone won’t remedy inherent vulnerabilities of these platforms to abuse and disinformation,” Democratic Sen. Mark Warner of Virginia, who has been one of the leaders in successfully pushing Facebook to be more transparent in the aftermath of the 2016 election, told VICE News. “This is another demonstration of why voluntary steps aren’t on their own going to address the lack of transparency in the digital ad space.” …
“If this page is run by the Stewart campaign, all of its ads should include a ‘paid for by Stewart for Senate’ message. If it is run by somebody else, ads that expressly advocate for or against candidates should include a disclaimer stating the name of the group that paid for the ads, and the ‘not authorized by any candidate or committee’ language,” said Brendan Fischer, the director of federal and FEC reform at the Campaign Legal Center. “One way or the other, it is violating disclaimer requirements.”
Much of the debate on federal regulation has so far revolved around the Honest Ads Act… Facebook CEO Mark Zuckerberg has publicly expressed support for the legislation but has said that his company is “already implementing it.”
There is disagreement, however, over whether Facebook and other tech companies should be held liable for illegal ads broadcast on their platform. “Proposals that would hold platforms liable for advertisers’ claims could discourage platforms from carrying ads from individual citizens or legitimate groups that aren’t well known or established,” the Internet Association, the D.C.-based lobbying group for tech, said last fall.
IRS
People’s Pundit Daily: To Protect Non-Profit Donors from Government Persecution, Limit IRS Data Collection
By Daniel Mitchell
One of the President’s appointees has expressed support for protecting donors to nonprofit organizations.
The Wall Street Journal recently opined on this topic…
Brian Garst of the Center for Freedom and Prosperity also weighed in on the issue, pointing out that government has a sorry track record of persecuting political dissent…
The solution is to not let the government get the information in the first place, especially since it isn’t needed to enforce any tax laws…
Though I think both Brian and the WSJ should have gone even farther and called for the abolition of the charitable deduction in the tax code as part of a shift to a simple and fair flat tax.
Then there would be zero rationale for the government to know about our donations. And since there’s plenty of evidence that nonprofits would prosper without a special preference in the tax code, this would be a win-win reform.
P.S. Privacy is an under-appreciated benefit of fundamental tax reform. Not only would donors and nonprofits no longer have to share information with the IRS under a flat tax, we also wouldn’t need to tell the government anything about our homes since the mortgage interest deduction would vanish. And since the death tax and capital gains tax are abolished, the government would have no need to know about our assets. And since all capital income is taxed at the business level, we wouldn’t have to tell the government about any stocks, bonds, or bank accounts we own.
Candidates and Campaigns
Politico: Democrats dodge campaign finance law
By James Arkin
Coordination between campaigns and outside groups is illegal, though both parties’ election lawyers regularly give candidates a green light to evade that ban by sharing information in the public domain – for example, posting long YouTube clips clearly meant for use by friendly super PACs. Now, McCaskill and other Democratic senators are pushing the limits by essentially posting instruction manuals on how they prefer allied groups to attack their opponents, which super PACs have then turned into ads within a matter of days or weeks.
The messages are short, featuring just a couple paragraphs or set of bullet points detailing either a line of praise for the senator or criticism aimed at their opponent. Occasionally, they link to larger research documents detailing and backing up the specific claims. Links to these pages appear on the front page of campaigns’ websites under innocuous headlines like “Missourians Need To Know” or “A Special Message for Hoosier Voters.”
Brendan Fischer, an attorney with the Campaign Legal Center, a watchdog group, called it a “further deterioration” of campaign finance coordination rules.
“It certainly appears as if Senate Majority PAC is acting as a megadonor-funded vehicle to channel the views of the candidate that they’re supporting,” Fischer said. “They may still be operating independently as a legal matter, but hardly operating independently in any reasonable understanding of term.”
Paul S. Ryan, vice president for policy and litigation at Common Cause, another watchdog group, said though it may not be illegal, it undermines the Democrats’ own arguments for campaign finance reform.
“It has long been the case that Democrats, while on the campaign stump, advocate for campaign finance reform while their own campaign lawyers behind the scenes are weakening or even gutting campaign finance laws,” Ryan said.
The Media
Reason: New York Times Goes Off the Rails With Claims About Secret Koch Plot to Kill Public Transit
By Christian Britschgi
For starters, it’s hard to believe that the canvassing operation of a single organization-no matter how effective-would be able to produce a landslide victory for a “no” campaign that was going up against some pretty stacked odds. (As the Times noted, the light rail expansion “was backed by the city’s popular mayor and a coalition of businesses. Its supporters had outspent the opposition, and Nashville was choking on cars.”) …
This is not to say that AFP had no effect. The Times article describes an effective outreach campaign that focused on contacting suburban voters likely to bristle at the idea of a massive tax increase to pay for a light rail system few of them would use. (Nashville’s light rail plan would have boosted sales taxes to the highest rate in the nation.)
This is hardly as conniving as the Times story makes it out to be. Instead, AFP’s actions show the benefit of money in politics as a way to boost voter engagement in what would have otherwise been a low-turnout, low-information election.
Contrast that with Seattle’s $54 billion Sound Transit 3 light rail initiative that easily coasted to victory over a practically non-existent opposition and is now facing a fierce public backlash from voters who missed the fine print about all the taxes and fees included in the initiative. Had a more effective opposition campaign been mounted, the electorate might have been more cognizant of these costs when they voted.
The States
Billings Gazette: Gazette opinion: Bullock brings dark money to light
By Editorial Board
Bullock turned up the light on political spending this month when he signed an executive order that requires companies bidding for state contracts to disclose their campaign spending. Executive Order 15-2018 expands the disclosure requirements in Montana statutes in important ways:
Starting Oct. 1, prospective state contractors must submit information on any spending that “pays for electioneering communication or that makes contributions, transfers or expenditures to another entity, regardless of its tax status, that pays for electioneering communications.”
The order applies to election spending regardless of how many times the money changes hands en route to election communication and regardless of whether it actually goes to a candidate’s treasury.
Bullock’s order is limited to contracts costing taxpayers more than $50,000 for goods or $25,000 for services and applies when a bidder has contributed at least $2,500 to election spending within 24 months of bidding.
The executive order stipulates that the state cannot discriminate against a bidder because of any contribution disclosed. However, bids can’t be considered unless the disclosure is made or the bidder certifies that no disclosure is required under this order.
NM Political Report: Groups want ‘Democracy Dollars’ to bolster ABQ publicly-financed candidates
By Andy Lyman
Inspired by the Seattle Democracy Voucher Program, Democracy Dollars would give each Albuquerque resident a voucher for $25. Residents would then allocate that $25, which comes from city funds, to the publicly-financed candidate of their choice. It’s an effort, by a coalition of advocacy groups, to replace a now defunct city process that matched money raised by candidates with public funds. The previous matching program from the city ended when the U.S. Supreme Court ruled that public money cannot be used to match money raised by candidates…
Seattle’s new system hasn’t been perfect so far. In the city’s first election using the voucher program the Seattle city attorney accused a city council candidate of using her own money instead of collecting contributions from petition signers. The city attorney eventually dropped the charges on the condition that the former candidate agreed to not participate in the voucher program in the next election.
Wayne Barnett, the executive director for Seattle’s Ethics and Elections commission, isn’t sure instances like the one in Seattle are completely avoidable. But he said imposing consequences will prevent future violations.
