In the News

SCOTUSblog: Reactions to the Kavanaugh nomination

By Andrew Hamm

In reaction to President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court, politicians and interest groups are releasing statements. SCOTUS Watch is tracking “the public statements made by United States senators about how they plan to vote.” This post tracks the statements by interest groups that we have received…

In support of the nominee: …

Institute for Free Speech (Bradley Smith, chairman and founder)

Capital Research Center: Required Donor Disclosure: A Threat to the First Amendment

By Caroline Downey

June 30th marked the 60th anniversary of NAACP v. Alabama, the Supreme Court decision protecting citizens’ rights to free association as well as the right to privacy, including in political activity and affiliations…

The Cato Institute and the Institute for Free Speech jointly hosted a debate on June [28th] titled, “[NAACP v. Alabama after 60 Years: Should Associational Privacy Still Be Protected by the Constitution?],” featuring Bradley Smith of the Institute for Free Speech and former general counsel of the Federal Election Commission, Lawrence Noble. The speakers re-examined the court decision and explained how it is still relevant today.

Smith argued that compulsory disclosure “chills” freedom of speech and association. The protestors that periodically appear on TV are a political minority; most Americans prefer to refrain from political engagement. Forced disclosure exacerbates political apathy even more. Without the protection of anonymity, potential activists and donors are disincentivized from participating in politics, largely because of the fear of backlash and retaliation. Few would choose to lose their jobs over their political affiliations. They’ll just leave the civic sphere instead…

Smith warned that many lawmakers are looking to expand invasive disclosure laws to a new realm: ideas. Meaning, non-profits that educate the public about political issues are the next target. As Smith wrote in the Wall Street Journal:

“Today legislators in at least 24 states have proposed expanding compulsory disclosure to include financial support for think tanks and other nonprofit groups. In other words, organizations like the NAACP.”

Ballot Access News: Judge Brett Kavanaugh, Chosen for U.S. Supreme Court, has Sparse but Bad Record on Voting Rights

By Richard Winger

Judge Brett Kavanaugh, President Trump’s choice for the U.S. Supreme Court, has had few voting rights cases. In Libertarian Party v District of Columbia Board of Elections, he voted to uphold the action of D.C. election officials who refused to count write-in votes for Bob Barr, 2008 Libertarian nominee, even though Barr was a declared write-in candidate. The decision, signed by Kavanaugh, said it was good enough that D.C. counted the total number of all write-ins cast for President, without specifying how many were received by any particular candidate. Barr was the only declared write-in presidential candidate in D.C. that year.

Judge Kavanaugh has also generally upheld campaign finance restrictions. Here is a summary of his involvement in those cases, by the Institute for Free Speech.

Supreme Court

Popehat: You’ll Hate This Post On Brett Kavanaugh And Free Speech

By Ken White

Kavanaugh has been an appellate judge for 12 years and has written many opinions on free speech issues. They trend very protective of free speech, both in substance and in rhetoric. His opinions are consistent with the Supreme Court’s strong protection of free speech rights this century. People who buy into the “conservatives are weaponizing the First Amendment” narrative will see him as a strong advocate of that movement, in that he has applied the First Amendment to campaign finance laws, telecommunications regulation, and other aspects of the regulatory state. But he’s also demonstrated fidelity to free speech principles in classic speech scenarios. Even when he concurs in a First Amendment decision, he frequently writes a separate opinion to clarify his analytical approach to the problem. He’s quoted First Amendment guru Eugene Volokh – one of the leading voices in free speech analysis and a strong defender of speech rights…

Kavanaugh has voted to strike down campaign financing laws and regulations under the First Amendment. Because he’s a judge on the D.C. Circuit, which tends to get cases challenging federal regulations, he’s done so multiple times. In Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 4 (D.C. Cir. 2009), he ruled in favor of the progressive EMILY’s List, striking down the Federal Election Commission’s regulations of political expenditures by nonprofits. He concurred wtihout writing a separate opinion in Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 510-11 (D.C. Cir. 2016), which struck down an FEC regulation prohibiting unauthorized political committees from using candidates’ names in the titles of their web sites and social media pages.

Reason: Another Surprisingly Subversive Justice

By Jacob Sullum

Trump, who wants to jail flag burners, yank licenses from annoying broadcasters, and loosen libel rules so he can sue his critics into submission, shows little appreciation for freedom of speech. Not so Kavanaugh, who last year highlighted the First Amendment issues raised by the Federal Communications Commission’s “net neutrality” rule and in 2009 sided with the abortion rights group Emily’s List when it challenged Federal Election Commission regulations that made it harder to raise money for political advocacy.

The Courts

New York Post: Court to decide if flipping off NYPD officers is free speech

By Kathianne Boniello

Shyam Patel, 22, decided to test the limits of the First Amendment by flipping off a pair of hero NYPD officers in the middle of Times Square.

The foul expression of free speech landed him in the clink – and he wants the cops to pay for their overzealous enforcement, according to a Manhattan Federal Court lawsuit…

The provocative gesture prompted Armani, Cybulski and other cops to approach Patel and ask for his identification.

Instead of complying, Patel asked, “What crime do you suspect me of committing?”

“You cannot gesture such …” Armani told him, according to Patel’s lawsuit against the two officers.

“Oh yes I can, it’s freedom of speech,” Patel insisted.

“No it’s not, you can’t curse a police officer,” said Armani, who then allegedly grabbed Patel, took his phone and again demanded Patel’s ID.

Courts have found profanity, even when directed at police, is protected by the First Amendment and the New York Civil Liberties Union told The Post no law prohibits cursing at a cop, or giving them the middle finger.

Patel was cuffed and spent 22 hours awaiting arraignment on disorderly conduct and resisting arrest charges, he said. The case was later dismissed.

Washington Times: 27 Republicans vote against Trump pick for 9th Circuit

By Alex Swoyer

President Trump saw the first major signs of discontent on the Senate floor from Republicans over his judicial picks Tuesday as a majority of GOP senators voted against his nominee for a seat on a federal appeals court.

Mark Jeremy Bennett was still confirmed, 72-27, to the 9th U.S. Circuit Court of Appeals. But all 27 opponents were Republicans, while all Democrats voted for him.

Republican defectors said Mr. Bennett is hostile toward gun rights and free speech…

During Mr. Bennett’s confirmation hearing in April, Sen. Ted Cruz, Texas Republican, also questioned Mr. Bennett over his criticism of Citizens United, the Supreme Court case that overturned campaign-finance restrictions and helped pave the way for the current system.

“You took positions, taking a very narrow view of what the First Amendment protects,” Mr. Cruz told him.

Congress

The Hill: ‘Unmasking Antifa Act’ includes 15-year prison term proposal

By Emily Birnbaum

The “Unmasking Antifa Act of 2018,” legislation introduced in the House, carries a potential 15-year prison sentence for those caught engaging in behaviors typically associated with the “antifa” movement of anti-fascist activists. 

Under the act, anyone “wearing a mask” or in disguise who “injures, oppresses, threatens, or intimidates any person … in the free exercise or enjoyment of any right or privilege” would be subject to a fine or up to 15 years in prison…

The bill was introduced by Republican Rep. Dan Donovan (N.Y.) and is co-sponsored by GOP Reps. Pete King (N.Y.), Paul Gosar (Ariz.) and Ted Budd (N.C.).

The bill is currently in the House Judiciary Committee.

Elko Daily Free Press: Rosen’s DISCLOSE Act really CHILL Act

By Thomas Mitchell

Democratic Rep. Jacky Rosen, who is seeking Republican Sen. Dean Heller’s seat in the November election, has come out strongly in support of a bill that would require disclosure of donors to groups seeking to influence political issues and campaigns.

Rosen announced that she is a co-sponsor of the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act of 2018. She touted the bill using the latest Democratic hot button – the alleged use of foreign money to influence elections…

But the bill, which has been stalled in Congress for years, would do far more than require disclosure of foreign cash.

It would mandate any group spending more than $10,000 on political ads to file a report within 24 hours with the Federal Election Commission and reveal the names of those who donate more than $10,000…

Though the ruling barred the censorship of electioneering communication, it did not go so far as to allow anonymous spending, thus leaving the door open for Congress to require spending reporting.

But in a dissent to this aspect of Citizens United, Justice Clarence Thomas took issue, saying the disclosure, disclaimer, and reporting requirements in McCain-Feingold were also unconstitutional.

“Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information’ … In continuing to hold otherwise, the Court misapprehends the import of ‘recent events’ that some amici describe ‘in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation.'” …

Perhaps, instead of calling it the DISCLOSE Act, they should call it the CHILL Act – Citizen Harassment Initiative to Limit Locution.

The States 

St. Louis Post-Dispatch: VP Pence’s top aide, tied to Greitens, targeted in new Missouri ethics complaint

By Jack Suntrup and Kurt Erickson

The complaint also says that Greitens for Missouri, which Pence chief of staff Nick Ayers advised, “funneled” donations through 501(c)(4) nonprofits, which do not have to reveal donor identities.

One potential donor, according to an email a Missouri House investigative committee obtained, was employed by a company that “manages money for the state of Missouri” – and could thus be barred by federal law from donating to political campaigns.

It is unclear to what extent, if any, Ayers was involved in discussions with that particular donor. But an email from 2015 shows that Ayers was in contact with the Greitens campaign about a “restricted donor.”

The revelation is contained in a 24-page complaint by Rep. Jay Barnes, R-Jefferson City, who led the now-defunct House committee that was collecting evidence to determine if Greitens should be impeached and removed from office…

Barnes alleges several campaign infractions by the disgraced former chief executive, including that Greitens failed to form a campaign committee after spending $500 on his statewide bid and that he did not report the $4 million spent by LG PAC as an in-kind contribution.

East Oregonian: Independents unwitting beneficiary of campaign finance law

By Paris Achen

Rep. Nancy Nathanson, D-Eugene, said the intent of House Bill 2505 was to drive out “dark money” from elections.

“The topic of the legislation was campaign finance reform, to improve transparency and reporting; the topic was not political debates,” Nathanson said. “The exception for non-partisan activities, such as publishing voter guides or conducting forums, etc., was written so that there was no need to report when those activities were clearly non-partisan and not intended to influence an election and only to provide access to information in an impartial way.”

The law requires disclosure of $750 or more of spending by individuals and nonprofit groups that reference, and effectively campaign for or against, a candidate within 30 days of an election. Previously, individuals and groups didn’t have to report that type of spending unless they included words such as “elect” or “vote for” in public communications.

House Bill 2505 specifically exempts from the requirement nonpartisan candidate debates or forums for a state office “when all major political party candidates for the state office have been invited to participate.”

The [Independent Party of Oregon] is using that wording to argue that upcoming gubernatorial debate hosts, such as KGW-TV, must either invite candidates from all three major parties, or report an in-kind campaign contribution for the cost of the debate and advertising to the candidates who were allowed to participate.

Portland Press Herald: Bills to borrow for transportation and higher education go to governor

By Scott Thistle

Partisan divisions are blocking agreement on providing funding for Clean Election Act candidates, as well as a tax conformity bill that would align Maine’s income tax code with the new federal code. The two bills have become linked politically and are likely to be the subject of political horse-trading when lawmakers return.

Democrats, who hold a narrow majority in the House and control the flow of bills to the chamber for a vote, are sitting on the tax conformity bill…

Leaders in the Republican minority caucus, which is withholding its votes on the Clean Election funding fix, criticized Democratic leaders in a prepared statement Tuesday for holding out on tax conformity…

But Democrats said House Republicans were breaking their word on what should be a routine fix to a simple drafting error.

“Voters have approved Maine’s Clean Elections law by strong margins at the ballot box twice, and last year’s budget agreement included a deal to fund it,” said House Majority Leader Erin Herbig, D-Belfast. “To me, it’s a matter of being true to our word.”

Rep. Jared Golden, D-Lewiston, the assistant majority leader, said Republicans believe delaying the Clean Election funds would hurt Democrats in the fall elections more than Republicans.

“It’s clear they believe gutting the Clean Elections system will give them a fundraising advantage so they can be free to raise money from corporations and the special interests that fund their campaigns,” Golden said. “Fortunately for the people of Maine, as has been proven time and time again, money isn’t everything in politics.”

Allentown Morning Call: Lehigh County officials search for fixes to pay-to-play law

By Tom Shortell

While the ordinance spells out strict punishments for donors, it does nothing to candidates or incumbents who knowingly solicit or accept donations from vendors.
The law also fails to spell out who makes the decision to punish those vendors; while the law department conducts an investigation, the law is silent on whether the county executive or commissioners enforce their findings.

Armstrong said he wants to address those problems by amending the law and creating an Ethics Commission to handle enforcement. While his administration and the law department are still going over how to best accomplish those changes, he believes a public referendum will be necessary.
The commission, he said, should have the power to remove offending officials from office, but that power doesn’t exist anywhere in the Home Rule Charter. A referendum could create that authority and would allow the voters to weigh in on the process…

Craig Holman, a good government lobbyist who helped draft New Jersey’s pay-to-play law, said many of the proposed changes would make for healthier government.
Clawback provisions are common in these types of laws and prevent companies from facing serious consequences for honest mistakes.

Many corporations have large teams of executives, some of whom aren’t involved in government work, making it easy to unknowingly violate campaign finance laws. Giving businesses a chance to claim back the donation removes any harm while stressing the importance of compliance, he said.