In the News
MSNBC: To Regulate or Not to Regulate “The American Swamp: For the People, Buy the People” (Video)
Sunday mark[ed] the premiere of a new docuseries on MSNBC from our very own Jacob Soboroff and Katy Tur. Tune in to “The American Swamp” as the two correspondents explore the murky waters of American politics. In this first episode, the pair takes a hard look at the ways that big money influences our elections – from dark money donations to negative political ads. Take a look as Katy discusses the issue with an outspoken supporter of less campaign finance regulation [IFS Chairman Bradley A. Smith].
Society and the State (Libertas Institute): 160: Zac Morgan on Is Dark Money a Good Thing? (Podcast)
What kind of reaction does the term “dark money” elicit when you first hear it? If it’s a mixture of fear and suspicion, you may be playing right into the hands of the political operatives who coined the phrase. Zac Morgan from the Institute for Free Speech joins Connor to discuss how campaign donations have never been more public and the chances of the Koch brothers or George Soros taking over the world may have been exaggerated.
Free Speech
Reason (Volokh Conspiracy): “Free Speech Rules,” My New YouTube Video Series-Episode 5 (Is Money Speech?) Now Out
By Eugene Volokh
Thanks to a generous grant from the Stanton Foundation, and to the video production work of Meredith Bragg and Austin Bragg at Reason.tv, I’m putting together a series of short, graphical YouTube videos-10 episodes to start with-explaining free speech law. Our first four videos were
“7 Things You Should Know About Free Speech in Schools,”
“The Three Rules of Hate Speech and the First Amendment,”
“Fake News and the First Amendment,” and
Our fifth, which we just released, is “Is Money Speech? Free Speech Rules (Episode 5).“
As usual for our episodes, the full script is also posted right below the video on YouTube.
National Review: Episode 50: Money, Money, Money (Podcast)
By Jay Cost and Luke Thompson
Jay and Luke dig through the twisted, confusing, and occasionally sordid history of campaign finance to tell you where we are, how we got here, and why McCain-Feingold was a terrible law. From Martin Van Buren to Citizens United, get the full picture with this episode of Constitutionally Speaking.
The Courts
Center for Responsive Politics: Steve Bullock scores debate night win against Trump administration in ‘dark money’ case
By Karl Evers-Hillstrom
A federal judge in Montana overturned a new Internal Revenue Service rule that allowed some tax-exempt nonprofits, including politically active 501(c)(4) groups, to avoid reporting names and addresses of donors who gave $5,000 or more in tax returns submitted to the agency.
The new rule, enacted by the Treasury in July 2018, was met with opposition from Democrats and groups advocating for stricter campaign finance rules. Political nonprofits are already able to keep donors hidden from the public, but Bullock argued the new rule would make it harder for Montana to crack down on illegal foreign money in its elections if the IRS didn’t have donor information on hand.
Bullock, as well as the state of New Jersey, swiftly filed a lawsuit against the IRS, arguing the federal government violated the Administrative Procedure Act by failing to give the public enough time to offer input on the proposed rules.
Judge Brian Morris sided with Bullock, overturning the new rule. The Barack Obama appointee said the IRS must provide a notice-and-comment procedure before adopting a similar measure.
“Then, and only then, may the IRS act on a fully-informed basis when making potentially significant changes to federal tax law,” Morris wrote in his conclusion.
Treasury Secretary Steven Mnuchin said his agency changed the rules in part to prevent leaking of confidential donor information, which occurred in 2013 when the IRS posted unredacted tax forms revealing donors to the Republican Governors Association Public Policy Committee. Mnuchin said the IRS could still get names and addresses of donors to nonprofits during audits…
Senate Democrats, along with Sen. Susan Collins (R-Maine), voted to overturn the rule in December on a near party-line vote, but the Republican-led House never held a vote. Democrats introduced new legislation this year to overturn the new rule, but it wasn’t going to get a vote in the upper chamber – Senate Majority Leader Mitch McConnell (R-Ky.) applauded the IRS rule change saying it “protects free speech and association.”
Politico: Judge dismisses DNC suit against Trump campaign, Russia over email hack
By Josh Gerstein
U.S. District Judge John Koeltl rejected the central theory of the racketeering suit: that the Trump campaign, campaign aides and Trump allies abetted the theft of the emails by encouraging WikiLeaks to publish the messages and by urging they be released when they would be of maximum political benefit to then-candidate Donald Trump.
Koeltl said such actions were protected by the First Amendment when taken by people not involved in the actual hacking.
“Even if the documents had been provided directly to the Campaign [and] the Campaign defendants … they could have published the documents themselves without liability because they did not participate in the theft and the documents are of public concern,” the judge wrote in an 81-page opinion. “The DNC cannot hold these defendants liable for aiding and abetting publication when they would have been entitled to publish the stolen documents themselves without liability.”…
“The DNC’s published internal communications allowed the American electorate to look behind the curtain of one of the two major political parties in the United States during a presidential election,” Koeltl wrote. “This type of information is plainly of the type entitled to the strongest protection that the First Amendment offers.”
Koeltl, a Manhattan-based appointee of President Bill Clinton, also rejected the DNC’s contention that fundraising-related records amount to trade secrets that get special protection under the law.
“The DNC’s interest in keeping ‘donor lists’ and ‘fundraising strategies’ secret is dwarfed by the newsworthiness of the documents as a whole,” the judge wrote. “If WikiLeaks could be held liable for publishing documents concerning the DNC’s political financial and voter-engagement strategies simply because the DNC labels them ‘secret’ and trade secrets, then so could any newspaper or other media outlet.”
Congress
New York Times: ‘Moscow Mitch’ Tag Enrages McConnell and Squeezes G.O.P. on Election Security
By Carl Hulse
Republican colleagues say that Mr. McConnell, a longtime foe of tougher campaign finance restrictions and disclosure requirements, is leery of even entering into legislative negotiation that could touch on fund-raising and campaign spending…
“I’m sure all of us will be open to discussing further steps Congress, the executive branch, the states and the private sector might take to defend our elections against foreign interference,” he said as he seethed on the Senate floor over what he described as McCarthy-style attacks on his integrity and distortions of both his position on election security and his hawkish history of challenging Russia…
Lawmakers in both parties have election security proposals waiting on the sidelines, and the furor has caused some to step up demands for Congress to take up their bills.
Senators Marco Rubio, Republican of Florida, and Chris Van Hollen, Democrat of Maryland, wrote on Monday to colleagues reconciling the annual House and Senate military policy bill to request that they include stalled sanctions legislation meant to deter Russia or other foreign actors from interfering in American elections…
On Tuesday, Senator Susan Collins of Maine, a Republican member of the Senate Intelligence Committee, signed on to a measure by Senator Mark Warner of Virginia, the committee’s top Democrat, that would require campaign officials to report to federal authorities any offers of campaign assistance from foreign entities.
A bipartisan measure in both chambers would require internet companies like Facebook to disclose the purchasers of political ads.
Online Speech Platforms
Reason: The Puny Reality of Russian Election Meddling
By Jacob Sullum
[C]lear thinking about the issue requires distinguishing between different kinds of meddling, some of which are more troubling than others…
The third kind of meddling, social media activity aimed at reinforcing political divisions or favoring one candidate over another, is also largely illegal, violating statutes dealing with fraud and foreign campaign contributions. But it is otherwise virtually indistinguishable from what Americans do on their own, and it seems quite unlikely that it had any measurable impact on the election results…
Some more numbers from the Mueller report help put the issue in perspective. Between January 2015 and August 2017, Facebook identified 470 IRA-controlled accounts out of more than 1 billion active daily users. “The IRA purchased over 3,500 advertisements,” the report says, “and the expenditures totaled approximately $100,000”-roughly 0.0004 percent of Facebook’s ad revenue in 2016.
Twitter “identified 3,814 IRA-controlled Twitter accounts,” which represents close to zero percent of active daily users. Even if some accounts “had tens of thousands of followers,” as the report says, that’s a drop in the bucket. The story is similar on Instagram (170 accounts out of half a billion active monthly users in 2016) and YouTube (43 hours total vs. 300 hours uploaded per minute).
Don’t forget the rallies! The Mueller report says Russians posing as Americans managed to instigate “dozens” of pro-Trump or anti-Clinton rallies in the run-up to the election, some of which attracted “few (if any) participants,” while others “drew hundreds.” Trump alone held 323 rallies, attended by a total of 1.4 million people, during his campaign…
Not only were these Russian efforts to influence the election minuscule; they were effective only to the extent that they changed people’s voting behavior. While sophisticated security measures are necessary to ward off Russian hackers, all it takes to combat Russian propagandists is a brain.
Independent Groups
Politico: Pro-Inslee super PAC to hit rivals on climate during debate
By Daniel Strauss
Act Now on Climate, a super PAC supporting Washington Gov. Jay Inslee’s presidential campaign, plans to push a TV ad attacking five of Inslee’s opponents during this week’s Democratic presidential debates…
The pro-Inslee super PAC is spending six figures to show the ad on CNN in Iowa during this week’s debates in Detroit. The ad will continue airing on regular broadcast TV in Iowa for another week after that, in the Des Moines and Cedar Rapids media markets.
Fundraising
The Intercept: Kamala Harris Receives Donations From Big Pharma Executives Despite Claim She Rejects Them
By Lee Fang
Ian Sams, the national press secretary for the Harris campaign, told CNN on Monday that Harris “is not taking any money from pharmaceutical executives.”
Federal Election Commission campaign finance records, however, show that the California senator has received thousands of dollars from executives at drug companies this year, most of which has not been returned…
There has been some effort by the Harris campaign to return drug company money. Records show the campaign returned a $2,700 donation from John Guthrie, an executive at Pharmaceutics International Inc., in March, for example. Why some drug company donations were accepted and returned, while others were not, is not immediately clear.
During his remarks, Sams swiped at the Bernie Sanders campaign, suggesting that the demand by Sanders that candidates reject drug and insurance money is hypocritical because Sanders also “took some money from pharmaceutical companies before he gave it back.” Sams added that the donations “blurs the line of what the actual issue is here.” The Sanders campaign returned donations from employees at drug companies last month when they were flagged by ABC News.
In an email, Sams reiterated that the campaign does not accept drug company executive money. Sams said the campaign had already returned the donations from Meaney and Stein, though he did not say when the money was returned. Many of the donations, including donations by Meaney and Hughes, were made early in the year – and were not refunded in either the first or second quarter filings. Sams also said the campaign is in the process of returning the donation from Global Blood Therapeutics’ executive. He did not address the other donations.
