Supreme Court
Pacific Legal Foundation: A First Amendment win: Supreme Court rules the government can’t control private speech
By Daniel Ortner
Property and free speech rights both scored a big victory at the Supreme Court this week, when the Court decided Manhattan Community Access Corp. v. Halleck. Although the facts of this case focus narrowly on public access television networks, the Supreme Court’s decision has significant implications for all property owners, the internet, and social media more specifically.
Social media companies are increasingly under fire for exercising their free speech rights to exclude users from their services. People upset at demonetization or shadow banning have called for government intervention in the name of the First Amendment. This argument is fundamentally misguided, because the First Amendment applies to the government and not to private companies. To the contrary, private companies have a First Amendment and a property right to exclude users. These two fundamental rights go hand-in-hand, as the right to exclude ensures that these companies are not required to give space to ideas or viewpoints they do not wish to be associated with…
Pacific Legal Foundation wrote an amicus brief urging the Supreme Court to reinforce the distinction between private and public property. The Supreme Court took up that invitation and wrote a decision that closely follows the arguments in PLF’s amicus brief…
This was a narrow 5-4 decision, with the Court’s conservative members joining an opinion written by Justice Kavanaugh and the liberal members joining Justice Sotomayor’s dissent. But the narrowness can suggest disagreement when little exists. Both the majority and dissent agreed on the need to sharply differentiate between private and government property, but differed only on the application to the narrow facts of this case…
Hopefully this decision will lead those advocating for government intervention against social media to reconsider their unwise and unconstitutional position.
FEC
Washington Post: Foreign spending in our elections is a threat to our national sovereignty
By Ellen L. Weintraub
As chair of the Federal Election Commission, I am gravely concerned about ongoing efforts by geopolitical adversaries to undermine our democracy. It is critically important that everyone involved in U.S. politics understands the law, recognizes the threat, and confronts and contains it.
While the ban on foreign national spending in our elections is well established, unequivocal and clear on its face, a lot of people have raised good questions about the law’s scope…
Lately, I have been asked repeatedly whether information can constitute “a thing of value” under the law. It can. Campaign finance law recognizes that not all donations are cash or physical items. One way to think of it is to ask: Is the information something someone would pay for? Did someone incur costs in acquiring the information?
Political information – think polling data, opposition research and contact lists – is costly to generate. Campaigns pay dearly to acquire such information, either generating it themselves or buying it from vendors. Such information can, therefore, be a contribution if a campaign pays someone else less than fair-market value for it. And if the contributor is a foreign national, it is an illegal contribution…
The path is clear: Bipartisan bills before Congress would shore up our cybersecurity defenses and impose real costs on foreign intervention. Americans must speak with one voice to demand that Congress act and to make clear that we reject every effort by every foreign government to hijack our political process.
The Fulcrum: Compromise in sight on some regulation of online political ads
By Sara Swann
At least at first blush, there seemed to be plenty of room for compromise between the freshly unveiled GOP plan and the one unveiled earlier in the week by Chairwoman Ellen Weintraub…
“We’re not on the same page yet, but obviously I hope we can be on the same page,” Weintraub said. “We need to resolve this. It’s really important and there’s a strong demand for this. Advertising is moving more and more to the digital realm so it’s critical to set standards and get rulemaking done.”
The main difference between the two proposals is how disclaimers should be displayed and whether some exceptions should be allowed. Weintraub wants the funding source clearly displayed on ads. But Petersen and Hunter think there should be more flexibility for small Internet ads that don’t have the space to accommodate the source’s name.
In cases where the ad is too small for a legible disclosure, the Republicans allow for one-step-removed navigation to a secondary site with more funding information. But Weintraub was skeptical whether that would be too big a loophole, because too many people would not be bothered to take that extra step.
The Republicans say the exception is the only way to allow campaigns to buy really small ads, which are often favored by underfinanced candidates and small-time advocacy campaigns.
The commissioners said they would keep negotiating in hopes of an agreement by the time of the panel’s next meeting in three weeks.
“Being an optimist, I don’t think the differences are unbridgeable – we can find a way forward,” Petersen said.
Congress
Center for Responsive Politics: Lawmakers make bipartisan push to crack down on money laundering and ‘dark money’ shell companies
By Anna Massoglia and Karl Evers-Hillstrom
A bipartisan group of lawmakers wants to require obscure corporations and limited-liability companies to disclose their true owners to law enforcement to snuff out laundered cash and political “dark money” flowing into the U.S. from foreign-influenced shell companies.
Members of Congress have introduced a number of bills mandating disclosure of companies’ beneficial owners – the person or persons who enjoy the benefits of ownership and control the company – to federal investigators. Lawmakers are mostly attempting to crack down on money laundering and the financing of other illegal activities. But the proposed legislation could also impact foreign interference in U.S. politics…
Senate Judiciary Committee members Sheldon Whitehouse (D-R.I.) and Chuck Grassley (R-Iowa) introduced legislation Tuesday that would require corporations to turn over beneficial ownership information to law enforcement in the event of a subpoena or summons.
A bipartisan group of senators in early June proposed their own bill to combat abuse of shell companies, requiring that corporations and LLCs disclose their beneficial owners to the Treasury Department. Reps. Carolyn Maloney (D-N.Y.), Peter King (R-N.Y.) and Tom Malinowski (D-N.J.) introduced similar legislation in May.
Whitehouse and Grassley, along with Graham and Sen. Dick Durbin (D-Ill.) have also introduced legislation to specifically address political contributions from shell companies. The bill, first introduced last year, would make it a felony for individuals to use or help set up a shell company to conceal illegal political activity such as foreign political contributions…
Center for Responsive Politics Executive Director Sheila Krumholz testified before the Senate Judiciary Committee Wednesday, detailing how shell companies inject money into U.S. politics and advocating for greater transparency of beneficial ownership.
The Hill: Schiff introduces bill to strengthen law barring campaigns from accepting foreign dirt
By Morgan Chalfant
The bill, spearheaded by House Intelligence Committee Chairman Adam Schiff (D-Calif.), would amend the Federal Election Campaign Act to clarify that “information sought or obtained for political advantage” qualifies as a thing of value that a campaign is prohibited from soliciting, accepting or receiving from a foreign national.
The legislation would also mandate that an individual who knowingly and willfully violates the statute would be subject to a fine or jail time up to five years, or both. And it requires the Federal Election Commission to notify political committees of the prohibition swiftly after their formation…
Schiff said Thursday that the legislation would “make it crystal clear that seeking or obtaining foreign assistance in the form of dirt on an opponent from a foreign power or foreign national is illegal.” …
Schiff’s bill would require the Federal Election Commission to provide a political committee with a written explanation of the statute within 30 days of the committee filing its statement of organization.
Any political committee would be required thereafter to certify to the commission that it received the explanation and provided copies of it to its members, also within 30 days.
Schiff said his legislation is designed to complement legislation introduced by Sen. Mark Warner (D-Va.) and others that would require campaigns to report foreign interference.
Warner introduced the proposal as an amendment to the annual defense policy legislation earlier this week.
Slate: Josh Hawley Wants to Stop Internet Censorship by Censoring the Internet
By Mark Joseph Stern
Troublingly, by 1996, courts had begun to impose liability on websites that did make an effort to monitor user content. One New York court reasoned that a website was liable for users’ defamatory posts because it attempted to moderate them; by exercising editorial control, it had become a more traditional publisher akin to the Times. This decision had a perverse effect: If a website made no effort to moderate users’ speech, it might escape liability, but if it tried to be responsible and deleted questionable content, it opened itself up to lawsuits. Section 230 put a stop to that quandary, empowering tech companies to moderate content without fear of legal action.
Now Hawley wants to eliminate this immunity for big tech companies that have, to his mind, abused it. His bill is meant to punish Facebook, Twitter, Google, and other new-media giants for their ostensible discrimination against conservatives…
Hawley’s bill does not directly punish tech companies that fail to comply with his guidelines. Instead, it strips these companies of immunity unless they play ball, subjecting them to crippling lawsuits that could put them out of business. But this indirect penalization still raises constitutional concerns. The Supreme Court has limited Congress’ ability to impose conditions on a government benefit-most notably, by forcing beneficiaries to comply with a speech code. Hawley’s bill arguably runs afoul of this bar on “unconstitutional conditions,” …
The strongest legal support for Hawley’s bill lies in Red Lion v. FCC. In that case, the Supreme Court upheld the “fairness doctrine” for radio stations, obligating broadcasters to cover each side of important matters. But Red Lion was premised on the fact that there are a limited number of radio frequencies; it therefore serves the public interest to condition broadcast licenses on a station’s “willingness to present representative community views on controversial issues.” There is no such concern with the internet, no technological limitation on the number of websites that justifies the government’s imposition of “fairness.”
The Fulcrum: More prominent Democrats emphasizing dark money’s effects on climate change
By Sara Swann
A main marketing line for democracy reform advocates is that fixing the political system is a predicate to tackling all the other pressing problems of the day. And in Congress, a prominent acolyte of this idea is Sheldon Whitehouse…
The Rhode Island Democrat was making his case again this week, putting together a meeting of advocates for reducing money’s role in politics and advocates of reducing carbon’s role in the economy.
Wednesday’s gathering in downtown Washington, with members of End Citizens United and the League of Conservation Voters, came as a growing number of Democratic presidential candidates are highlighting a link between their climate change proposals and their proposals for regulating campaign finance and lobbying…
“We are in a battle for our country’s soul against malefactors of great wealth who have been allowed to hide the wicked workings of that wealth behind masks,” Whitehouse said. “The fossil fuel industry’s dark money has polluted our politics as badly as its carbon emissions have polluted our atmosphere and oceans.” …
Whitehouse has introduced legislation that would require organizations spending money in federal elections – including super PACs and certain nonprofit groups – to promptly disclose donors of more than $10,000 in an election cycle. He’s proposed a similar bill in each of the three previous Congresses but it’s gone nowhere…
But there are other scenarios that could play out during the legislative impasse, Whitehouse said. The public can pressure the oil companies to be more open about their political spending. The “good guys” in the energy economy can hold the rest to a higher standard. And an effort to “blow up the status quo and turn dark money against” the energy behemoths by launching subpoena-backed congressional investigations that could bring their political behavior to light.
Trump Administration
Washington Post: Trump threatens reporter with prison time during interview
By Colby Itkowitz
President Trump, in an interview this week and on Twitter on Friday morning, again suggested criminal action against American journalists.
During a sit-down interview with Time magazine, Trump showed the reporters a letter from North Korean leader Kim Jong Un. When a photographer tried to snap a photograph of the letter, White House press secretary Sarah Sanders told him he couldn’t.
Later in the interview, the subject turned to special counsel Robert S. Mueller III’s report on Russian interference in the 2016 campaign, and a reporter asked about sworn testimony that Trump tried to limit the investigation to only “future election meddling.”
Rather than answer, Trump lashed out about the photographer’s attempt to take a shot of the letter from Kim, according to a transcript of the interview that Time released Thursday night.
“Well, you can go to prison, instead, because if you use, if you use the photograph you took of the letter that I gave you . . .” Trump started…
“I’m sorry, Mr. President. Were you threatening me with prison time?” the reporter asked.
Trump didn’t answer directly, but launched into a rant about Time’s unfavorable coverage of him…
On Friday, Trump also weighed in on an email between a New York Times reporter and the FBI’s director of public affairs that was obtained by the conservative watchdog group Judicial Watch…
“Just revealed that the Failing and Desperate New York Times was feeding false stories about me, & those associated with me, to the FBI,” Trump tweeted. “This shows the kind of unprecedented hatred I have been putting up with for years with this Crooked newspaper. Is what they have done legal? . . .”
The States
New Jersey Globe: Zwicker confident dark money cleanup gets done
By Nikita Biryukov
Assemblyman Andrew Zwicker is holding out hope for a dark money cleanup bill.
When Gov. Phil Murphy signed the dark money disclosure bill sponsored by Zwicker and State Sen. Troy Singleton last week, he said he did so because he’d been assured by legislative leaders that a cleanup bill would follow.
But, one such bill, sponsored by Zwicker, was pulled from the Assembly Appropriations Committee’s schedule on Tuesday.
“Negotiations are continuing, and I remain confident that we will get everyone on board and get it done,” Zwicker said. “We’re still talking, and I don’t see any reason why we won’t get Senate, Assembly and the front office all in tune.”
Though Assembly Speaker Craig Coughlin has publicly said he, Senate President Steve Sweeney and Murphy had reached a deal over a cleanup bill, Sweeney denies that any such deal exists and has shown increasingly-public resistance to such a measure.
Murphy initially vetoed the dark money bill but later signed an identical copy of the bill in order to avoid a veto override.
At the moment, Sweeney’s maintaining he won’t post a cleanup bill for a vote in the upper chamber until after the law goes into effect.
North Jersey Record: ‘Dark money’ bill’s dark impact on citizens’ voices
By Jesse Burns
[L]egislation recently signed into law by Gov. Phil Murphy, while well-intentioned, will have grave consequences for civic engagement and informed participation in government. The impact of this legislation could be devastating on advocates’ ability to work in partnership with legislators and citizens to pass policy that makes our state a better place.
Unfortunately, a bill originally intended to shine a light on big money influencing our candidates and elections was heavily amended into far-reaching legislation that will make it incredibly difficult for many organizations to continue to advocate on behalf of New Jersey voters, or to even function at all…
The League of Women Voters has partnered with elected officials, from all political parties, to have reasoned, civil dialogue concerning public policy for almost 100 years. However, this legislation jeopardizes the League’s ability to continue to have those conversations.
Our organization, and so many other organizations, do not represent corporate or big-money interests. And while these citizen advocacy groups are not the ones that were meant to be captured in the original “dark money” bill, they are the very ones that will be harmed…
Assemblyman Andrew Zwicker has introduced a “clean-up” companion bill, A5633 that addresses many of our most serious concerns. This clean-up legislation brings the bill back to its original intent…
This legislation is currently stalled in the Assembly, however, and Senate President Steve Sweeney has indicated that his chamber is unlikely to take it up quickly.
There is limited time to address these issues before the law goes into effect.
Washington Post: Let’s finally pass campaign finance reform in 2020
By Virginia State Senator Chap Petersen
A few months ago, Fairfax County was the envy of American municipalities for its system of law enforcement…
The chief prosecutor, known as the commonwealth’s attorney, was a 35-year courtroom veteran, Raymond F. Morrogh…
Now, Morrogh is out of office, eliminated in a low-turnout Democratic primary by Steve Descano, a challenger primarily funded by activist George Soros through his Justice & Public Safety PAC. Morrogh was outspent 2 to 1; his message of quiet competence was drowned by out by a mail and canvassing campaign that used words such as “racial profiling” and “mass incarceration” in describing Fairfax County’s criminal-justice system…
Over the years, I have filed campaign finance bills in Richmond with the intent of leveling the playing field in our Virginia elections. Historically, the target of my legislation has been wealthy individuals or corporations seeking special legislation…
The Soros episode has raised an entirely new cause d’etre: the wealthy dilettante – right or left – who seeks to impose his viewpoint on a jurisdiction (or jurisdictions) to which he has no evident connection.
In 2020, I will be refiling my legislation to limit campaign donations, state and local, to a maximum of $10,000 per individual or PAC. This limit is comparable to federal limits, which have been found constitutional. Such a limit will bring some sanity back to Virginia politics – and limit the possibility of corruption that occurs when a candidate is funded by one donor.
Every year, we hear that Virginia’s “no limits” donation system is superior. It’s not.
Gotham Gazette: Council Hears 3 Campaign Finance Bills to Enhance Low-Dollar Impact, Limit Criminals, Curb Conflicts
By Noah Berman
The City Council’s Committee on Governmental Operations held a hearing Wednesday to discuss three bills related to campaign finance reform. Two of the bills would prohibit candidates convicted of felony corruption or misuse of public funds from receiving public matching funds and reduce the matching funds contribution minimum from $10 to $5. They are sponsored by Council Members Fernando Cabrera and Keith Powers, respectively. Cabrera is the chair of the governmental operations committee.
The third bill, also sponsored by Powers, would amend the definition of “business dealing with the city” to include an earlier trigger in the land use review process. That bill would make those entities with uncertified applications under the Uniform Land Use Review Procedure (ULURP) and zoning text amendments part of the “doing business” database that severely limits what they can give to political candidates, with the goal of decreasing the influence of large real estate contributions in elections and the opportunity for pay-to-play politics.
