The Courts
Courthouse News Service: D.C. Circuit Tosses State Republicans’ Challenge of SEC Political Contributions Rule for FINRA Broker-Dealers
By Levi Lass
The Court of Appeals for the D.C. Circuit denied the New York Republican State Committee’s bid to challenge the Securities Exchange Commission’s rule prohibiting broker-dealers acting as “placement agents” from accepting compensation for soliciting government business from candidates and elected officials.
The SEC adopted Rule 2030 in 2016 to regulate the political contributions of members of the Financial Industry Regulatory Authority (FINRA) whose broker-dealers act as “placement agents.”
A placement agent is an “individual or firm that investment advisers hire to help them secure contracts advising a government entity,” according to the 28-page opinion.
The rule was adopted in response to a growing concern of “pay-to-play activity” in the public pension market, Senior Circuit Judge Donald Ginsburg wrote in the ruling.
The court found that Rule 2030 stops a placement agent from accepting compensation from candidates and elected officials within two years of having contributed to the official’s electoral campaign.
The state republican committee was joined by The Tennessee Republican Party on the petition for review of the SEC’s approval of Rule 2030, claiming the SEC lacked the authority to enact 2030 and that the rule violated the First Amendment…
“We hold the NYGOP has standing and deny its petition on the merits,” Judge Ginsburg wrote. “The SEC acted within its authority in adopting Rule 2030; doing so was not arbitrary and capricious because the SEC had sufficient evidence it was needed; and the rule does not violate the First Amendment in view of our holding.”
By Rick Hasen
From the Robertson, Bergstrand, and Winkelman brief in Lieu v. FEC:
Plaintiffs-Appellants have asked the Court to reconsider its decision in SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010), which gave rise to so-called Super PACs and similar independent expenditure organizations. The Court in SpeechNow recognized that the “appearance of corruption” could justify campaign finance regulation under Supreme Court precedent. Id. at 692. But the Court went on to state that, “[i]n light of the [Supreme] Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures”-like SuperPACs-“also cannot corrupt or create the appearance of corruption.” Id. at 694. Amici’s empirical research strongly suggests otherwise. In two studies with complementary methodologies, Amici found that contributions to organizations that make only independent expenditures may in fact create the appearance of quid pro quo corruption. In light of this empirical research, the Court should grant initial hearing en banc and reconsider its decision in Speechnow, which rests on an incorrect premise.
San Diego Union-Tribune: Judge: Rep. Duncan Hunter’s personal relationships can be evidence in criminal trial
By Morgan Cook
Hunter is accused of improperly spending $250,000 in campaign dollars on personal expenses. He and his wife, Margaret Hunter, were originally indicted on 60 criminal charges and pleaded not guilty.
Recently Margaret Hunter changed her plea to guilty of one count of criminal conspiracy, which included an agreement that she and her husband knew they were breaking the law by making personal purchases with campaign donations.
Last week prosecutors filed a series of motions, including one that spelled out some of Duncan Hunter’s questionable expenditures that prosecutors said were linked to his extramarital affairs with five women, including three lobbyists and two congressional staffers.
Hunter’s defense attorneys argued in a response last Friday that prosecutors can’t prove those expenditures were not for legitimate political purposes.
“Just as with Mr. Hunter’s platonic relationships, his friendships often blur the line between personal and professional, which is a widespread occurrence in modern politics,” the filing states.
“However unpopular the notion of a married man mixing business with pleasure, the Government cannot simply dismiss the reality that Mr. Hunter’s relationships with Individual’s 14-18 often served an overtly political purpose that would not have existed irrespective of his occupation.” …
U.S. District Judge Thomas J. Whelan said Monday that prosecutors can use evidence of personal relationships in court but they should work on their wording to avoid undue prejudice.
Congress
Washington Examiner: Josh Hawley’s Section 230 amendment would only make social media censorship worse
By Casey Given
[F]reshman Sen. Josh Hawley, R-Mo., introduced legislation that would undermine the internet as we know it. Hawley’s “Ending Support for the Internet Censorship Act” would revise Section 230 of the Communications Decency Act of 1996 and require large tech platforms such as Facebook and Twitter to be “politically neutral” in moderating user content.
While that may sound like a fine idea in principle, government enforcement of such a pie-in-the-sky standard could have severe unintended consequences, reminiscent of the failed Fairness Doctrine of yesteryear. There is no simple definition of neutrality, and big government providing one could expose users to more censorship – either from political pressure or regulators chilling speech…
Hawley’s plan would require platforms with more than 30 million active users in the U.S., 300 million active users worldwide, or annual revenues exceeding $500 million to be certified by the Federal Trade Commission every two years that they were not “biased against a political party, political candidate, or political viewpoint.”
This scheme seems a lot like a modern Fairness Doctrine, the Federal Communications Commission regulation in place from 1949 to 1987 that supposedly required broadcasters to present controversial issues in a fair and balanced manner.
The rule became increasingly impossible to enforce with the explosion of choice in TV and radio, and its repeal ultimately allowed for conservative talk radio to flourish. Hawley’s 21st-century Fairness Doctrine could similarly hamper competition and choice on the internet, putting platforms at the mercy of government bureaucrats.
And as we know from endless examples in history, bureaucrats are not exactly neutral arbiters, as evidenced by Lois Lerner and the Internal Revenue Services’ targeting of conservatives. Hawley’s 230 amendment would both empower the political party in power federally to regulate the net to their liking and force platforms to censor political speech even more.
Internet Speech
New York Times: Trump Consultant Is Trolling Democrats With Biden Site That Isn’t Biden’s
By Matthew Rosenberg
For much of the last three months, the most popular Joseph R. Biden Jr. website has been a slick little piece of disinformation that is designed to look like the former vice president’s official campaign page, yet is most definitely not pro-Biden.
From top to bottom, the website, JoeBiden.info, breezily mocks the candidate in terms that would warm the heart of any Bernie Sanders supporter…
All the site says about its creator is buried in the fine print at the bottom of the page. The site, it says, is a political parody built and paid for “BY AN American citizen FOR American citizens,” and not the work of any campaign or political action committee.
There is indeed an American behind the website – that much is unambiguously true…
Yet in anonymously trying to exploit the fissures within the Democratic ranks – fissures that ran through this past week’s debates – Mr. Mauldin’s website hews far closer to the disinformation spread by Russian trolls in 2016 than typical political messaging. With nothing to indicate its creator’s motives or employer, the website offers a preview of what election experts and national security officials say Americans can expect to be bombarded with for the next year and a half: anonymous and hard-to-trace digital messaging spread by sophisticated political operatives whose aim is to sow discord through deceit. Trolling, that is, as a political strategy…
Meddling by foreigners is illegal. But trolling or disinformation spread by American citizens is protected by the First Amendment, and if Mr. Mauldin’s work is any guide, Americans may well do a far better job deceiving one another than any Russian troll could hope for.
Fundraising
CNBC: Majority of Americans say they won’t donate to 2020 presidential campaigns
By Joe Andrews
Under one-third of Americans have already made donations or say they plan to make donations to presidential campaigns, according to Invest in You Spending Survey conducted by CNBC and Acorns in partnership with SurveyMonkey. Only 8% of Americans have given to a 2020 presidential campaign so far, according to the survey, with an additional 19% of respondents indicating they plan to donate to a candidate but have not already…
The survey does show an increase in donations planned by Americans, versus data from previous election-cycle surveys…
In 1992 only 6% of Americans reported donating to a political campaign, according to the Pew Research Center. In 2016 this number rose to 12%, doubling in just over two decades…
The internet has made donating to political campaigns as fast and painless as ordering socks on Amazon…
“I think the candidates who have the most success getting donations from small individual donors are people with a national reputation … and then also specifically making the donor appeal to them is another factor,” said Bryner from the Center for Responsive Politics. “So [telling] people, ‘Hey, I don’t really want donations from millionaires. I don’t want $2,500 donations from big donors. … I’m building a campaign based on support from you.’ “
Candidates like Warren have followed this pattern closely by vowing not to accept any PAC money during this campaign cycle. However, Ciara Torres-Spelliscy, a campaign finance expert at Stetson University, has questioned how meaningful these pledges are.
“It’s not clear how many corporate PACs would have supported some of these Democratic candidates, and so saying ‘I’m refusing that’ … it’s an interesting, rhetorical flourish,” said Torres-Spelliscy.
National Review: Our Presidential Nomination Process Is Nuts
By Jay Cost
Over the past quarter century, the Democrats have undergone a wholesale revolution in campaign finance. Whereas Democratic campaigns were once funded by labor unions, New Left public-interest groups, and corporations friendly to left-wing causes, candidates are relying more and more on small donors.
This has been a boon for the party’s coffers, as Democrats have been able to raise eye-popping totals from the socioeconomically upscale portion of their base, more than they ever could accumulate through the old channels. It has also freed the party from the stigma of being in hock to labor unions or other interest groups, which often harmed Democrats’ ability to compete in places where unions are not especially strong.
But the new role of small donors has also shifted the incentives of primary-campaign candidates, in ways that were on display this week. If your goal as a candidate is to maximize your haul from small-dollar donors who are not affiliated with a professional interest group, then you’re basically chasing the Rachel Maddow Show crowd – hyper-engaged, public-spirited progressives. They do not constitute a majority of the party, or of the country. But a lot of them have Act Blue bookmarked on Google Chrome.
The campaign rules established by the party this year – whereby candidates have to secure a certain number of donors and a certain percentage of support in the major polls – reinforce the influence of these donors. Candidates are desperate to get these people to contribute just a dollar, not for so much for that dollar’s ability to buy the candidate campaign services, but to establish the candidate’s viability in the eyes of the party. (And of course there is a long-term opportunity in acquiring new donors, but you can’t reap those benefits if you do not qualify for the next debate.)
The Media
Reason: Antifa Mob Viciously Assaults Journalist Andy Ngo at Portland Rally
By Robby Soave
Andy Ngo, a photojournalist and editor at Quillette, landed in the emergency room after a mob of antifa activists attacked him on the streets of Portland during a Saturday afternoon demonstration.
The assailants wore black clothing and masks, and were engaged in a counter-protest against several right-wing groups, including the Proud Boys. Ngo is a well-known chronicler of antifa activity, and has criticized their illiberal tactics on Fox News. He attended the protest in this capacity-as a journalist, covering a notable public event.
According to Ngo, his attacker stole his camera equipment. But video footage recorded by another journalist, The Oregonian’s Jim Ryan, clearly shows an antifa activist punching Ngo in the face. Others throw milkshakes at him…
Throwing milkshakes at right-wing politicians is a tactic of British progressive activists that recently traveled to this side of the Atlantic. Rep. Matt Gaetz (R-Fla.) was hit with one earlier in June. The tactic has its defenders in mainstream left-of-center media as well: Vox’s Carlos Maza tweeted “milkshake them all” after a British activist hurled a milkshake at Nigel Farage.
Portland police have claimed that some of the milkshakes thrown by the antifa activists on Saturday contained quick-dry cement. That may or may not be true. What is true is that an antifa mob beat up a journalist-one who is harshly critical of them, to be sure, but who posed no physical threat to them and was only there to document their activities-on a public street. This is indefensible, and yet there are tons of progressive-leaning people currently defending it, or at the very least rationalizing and making light of it.
Antifa, of course, rejects the notion that violence should only be used in response to a physical threat. The group believes that the very existence of far-right people, groups, and ideas is a kind of provocation that justifies violence-against the far-right, and against their enablers.
The States
Oregonian: Legislature sends ballot measure to voters setting stage for campaign donation limits
By Rob Davis
Voters in Oregon, one of America’s biggest political money states, will decide next November whether the state constitution should allow limits on campaign donations.
The move follows 44 years of judicial decisions that made Oregon one of just five states to allow unlimited contributions to politicians.
By a 22-5 vote Saturday, the Oregon Senate approved Senate Joint Resolution 18, which would put the campaign finance measure on the November 2020 ballot. The House of Representatives concurred Sunday in a 43-11 vote.
The measure heads to voters without need for a signature from Gov. Kate Brown, who has pushed for a constitutional amendment on campaign finance since before the 2019 session. The Legislature has the authority to refer ballot measures on its own…
House Bill 2716, which the Legislature passed and sent to the governor, some large funders will need to be disclosed in some advertisements…
The Senate on Sunday also passed House Bill 2983 with some bipartisan support in a 20-7 vote. The Brown-backed bill requires disclosure from so-called “dark money” groups like Priority Oregon, which have funded campaign commercials without disclosing the sources of their money.
U.S. News & World Report: Appeals Court Dismisses Suit Affecting Free Speech Rights
By Associated Press
A state appeals court has dismissed a libel suit filed by a Texas energy firm against a Colorado environmental activist, finding that the lawsuit sought to stifle the activist’s freedom of speech.
The ruling in favor of Delta County activist Pete Kolbenschlag came in a case that helped lead to the enactment of a new Colorado law to protect citizens and news outlets from lawsuits that seek to curb their First Amendment rights.
Colorado is one of nearly 30 states that have adopted measures to curb what are called strategic lawsuits against public participation. Kolbenschlag and other citizens testified during the 2019 legislative session about how they’d been sued for libel or slander simply for exercising their First Amendment rights.
The law was signed by Gov. Jared Polis on June 3 and takes effect Monday. It allows a resident to seek an immediate stay of such a lawsuit. A higher court can order immediate dismissal of the lawsuit, and plaintiffs can be held liable for court costs and attorneys’ fees.
In an opinion issued Thursday, the Colorado Court of Appeals dismissed a suit by SG Interests, an oil and gas exploration firm.
SG Interests sued Kolbenschlag for libel in 2017 after he posted comments about its activities on public lands on the website of the Glenwood Springs Post Independent.
A district court dismissed the case in 2018 and awarded Kolbenschlag attorneys’ fees. SG Interests appealed but the appeals court upheld the ruling and directed the lower court to determine and award the fees.
Washington Post: More than money in campaigns
By Mike McGurrin (Letter to the Editor)
In his June 23 Local Opinions essay, “Virginia needs campaign finance reform – now,” state Sen. Chap Petersen (D-Fairfax City) cited outsider campaign financing as the reason for incumbent Fairfax County Commonwealth’s Attorney Raymond F. Morrogh’s defeat. I do not know the decisionmaking that other voters used, but for me, campaign financing played no role. I chose to vote against Mr. Morrogh because he supports the death penalty and opposed then-Gov. Terry McAuliffe’s actions to restore voting rights to felons who had served their time and paid their debt to society. I was alerted to these positions not by political advertisements but, rather ironically, by The Post’s May 12 endorsement of Mr. Morrogh [“For commonwealth’s attorneys,” editorial].
In addition, Mr. Petersen’s observation that Mr. Morrogh’s opponent had “never tried a case in a Virginia courthouse,” while true, left out the opponent’s years of criminal trial experience elsewhere. I have no issue with Mr. Petersen’s efforts to reform campaign finances, but I take issue with his ascribing his preferred candidate’s defeat solely to such efforts.
