In the News

Santa Fe New Mexican: Rules combatting “dark money” in politics facing growing opposition

By Steve Terrell

In an opinion piece published by The New Mexican this week, Gessing and Bradley Smith, chairman of the Center for Competitive Politics and a former member of the Federal Election Commission, wrote, “Bureaucratic rule-makings can serve an important function. They help to implement and clarify laws that are passed by the Legislature. But here, instead of implementing the law, the Secretary of State’s Office is enacting rules that were rejected in the constitutional lawmaking process.”…

Toulouse Oliver’s proposed rule is based on a bill that passed the Legislature with bipartisan support this year but was vetoed by Gov. Susana Martinez. Martinez wrote in her veto message, “While I support efforts to make our political process more transparent, the broad language in the bill could lead to unintended consequences that would force groups like charities to disclose the names and addresses of their contributors in certain circumstances. The requirements in this bill would likely discourage charities and other groups that are primarily non-political from advocating for their cause and could also discourage individuals from giving to charities.”

CCP

Disclosure Rulemaking Violates New Mexico Constitution, CCP Says

Can an administrative agency use the regulatory process to implement proposals that were rejected through the legislative process? Comments filed Tuesday by the Center for Competitive Politics (CCP) explain how the New Mexico Constitution forbids this violation of separation of powers.

Secretary of State Maggie Toulouse Oliver has proposed vague and onerous reporting requirements for groups that mention candidates. These proposals first appeared in S.B. 96, a bill that Governor Susana Martinez vetoed in April. Repackaging failed legislation as a regulatory proposal wrongly usurps the Legislature’s role in the lawmaking process.

“The Proposed Rule attempts to legislate rather than implement existing law, as evidenced by the Proposed Rule’s cut-and-paste of the legislature’s failed bill,” wrote CCP Attorney Tyler Martinez. “While the Secretary has some authority to write interpretive rules, the wholesale adoption of new disclosure requirements – particularly when they may be suspect under the First Amendment to the United States Constitution – is simply beyond the scope of the Secretary’s authority.”

Constitutional and Practical Issues with New Mexico Secretary of State Proposed Rule 1.10.13 NMAC

By Tyler Martinez

Among other things, this regulation supplants the state’s existing Campaign Reporting Act to create new, extra-statutory reporting requirements for individuals and organizations that make independent expenditures or publish information that simply mentions the name of a candidate in a specified window before a primary or general election. The provisions of this new rule would ultimately chill protected speech by mandating the disclosure of donors to organizations engaged solely in issue advocacy.

In attempting to impose requirements essentially identical to proposed legislation vetoed by the Governor, the Proposed Rule advances new and burdensome reporting requirements for organizations. It purports to cover only “independent expenditures,” but the definition of independent expenditure is so broad that it would cover many activities that have no relation to express advocacy for or against a candidate. Furthermore, the regulation extends onerous disclosure requirements that “call out” an organization’s funders-whether or not the donors agree with the specific communication. Complicating matters, the regulation goes even further and creates a vague “coordination” standard.
PDF 

FEC

Bloomberg BNA: Trump Jr.’s Emails Gain Attention as FEC Eyes Foreign Influence Issue

By Kenneth P. Doyle

The FEC is set to again consider in an open meeting July 13 what can be done to protect U.S. elections from interference by Russia and other foreign powers. The FEC is not expected, however, to directly address the newly revealed Trump meeting or other specific cases.

The commission already had more than a dozen pending cases about foreign influence in last year’s elections when the news broke about Donald Trump Jr.’s meting with the Russian, leading inevitably to even more new enforcement complaints…

“We and our staff need to know what happened, what is happening now and what may happen next,” Weintraub said, suggesting the FEC should cooperate more closely with other agencies involved in investigating Russia’s election interference.

In the past, however, FEC Republicans and critics outside the agency have push back hard against initiatives to expand the FEC’s role, suggesting they could backfire and chill the First Amendment rights of Americans to participate in the political process.

Congress

Senate Republican Policy Committee: Correcting the Record on the First Amendment

Judges awaiting confirmation are often attacked for their views on the First Amendment, whether on religious liberty or political speech. Attacks in this area just as frequently include misstatements of law, conflations of separate concepts, and mischaracterizations of facts. One frequent area of misunderstanding involves criticism on how nominees have applied Justice Anthony Kennedy’s 2010 opinion in the Citizens United case and the meaning and impact of that case…

Citizens United established the First Amendment right of all corporations to make independent expenditures.

As Justice Kennedy’s opinion noted, Supreme Court precedent “recognized that First Amendment protection extends to corporations” and that such “protection has been extended by explicit holdings to the context of political speech.” The court also pointed to a decision in 1978 that “reaffirmed the First Amendment principle that the Government cannot restrict political speech based on the speaker’s corporate identity.”  

Politico: Khanna starts PAC-free caucus

Theodoric Meyer

Rep. Ro Khanna (D-Calif.) is starting a new caucus for members who have sworn off contributions from PACs or lobbyists. The caucus, called the NO PAC Caucus, is “designed to encourage members of Congress to voluntarily not accept PAC money and to push for legislation that ultimately bans PAC money from Congress,” Khanna said in an interview. The caucus has just two other members so far – Reps. Beto O’Rourke (D-Texas) and Jared Polis (D-Colo.) – but Khanna is recruiting Republicans and Democrats, including Reps. Phil Roe (R-Tenn.), Francis Rooney (R-Fla.) and John Sarbanes (D-Md.), to give the caucus bipartisan bona fides…

Khanna, who represents much of Silicon Valley, acknowledges that not every member will have an easy time quitting PAC money. Khanna defeated Democratic Rep. Mike Honda last year after raising $3.7 million, including big checks from tech elites including Marc Andreessen, John Doerr, Sean Parker and Laurene Powell Jobs, and Polis is one of the richest members of Congress. “I’m very sympathetic to the argument that members” in less affluent districts “have a harder challenge in fundraising,” Khanna said. “I think we have to be sensitive to that.”   

Candidates and Campaigns

Washington Post: Can it be a crime to do opposition research by asking foreigners for information?

By Eugene Volokh

Say that, in Summer 2016, a top Hillary Clinton staffer gets a message: “A Miss Universe contestant – Miss Slovakia – says that Donald Trump had sexually harassed her. Would you like to get her story?” The staffer says, “I’d love to,” and indeed gets the information, which he then uses in the campaign.

Did the staffer and the Miss Universe contestant just commit a crime? Yes, under the analysis set forth in the past couple of days by some analysts, such as my University of California colleague and leading election law scholar Rick Hasen (UC Irvine School of Law) and by Common Cause…

Can Americans – whether political candidates or anyone else – really be barred from asking questions of foreigners, just because the answers might be especially important to voters?

The Supreme Court did affirm (without opinion) a federal court decision in Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), that upheld a ban on contributions and independent expenditures by non-citizen non-permanent-residents, on the theory that the government can use such a ban to limit foreign influence on American elections. But the panel decision expressly stressed that it was limited to the restriction on spending money. And it seems to me that restrictions on providing information to the campaigns – or on campaigns seeking such information – can’t be constitutional.

Reuters: Online ads offer legal option for U.S. election meddling

By David Ingram

The laws that prohibit foreign nationals from spending money to influence U.S. elections do not prevent them from lawfully buying some kinds of political ads on Facebook and other online networks, campaign finance lawyers said.

The omission of online ads could be a potential hurdle for those investigating alleged Russian meddling in last year’s U.S. presidential election, according to the campaign finance lawyers, who are not involved in the probes.

Since 1974, the United States has barred foreign nationals from giving money to campaigns and it later barred them from donating to political parties. The laws also prohibit foreign nationals from coordinating with a campaign and from buying an ad that explicitly calls for the election or defeat of a candidate…

Foreign nationals cannot spend money on electioneering communications but the term under U.S. law applies only to communications made by broadcast, cable or satellite – with no mention of the internet.

A related law does bar foreign nationals from expressly advocating the election or defeat of a candidate in any advertising medium. But as long as online ads do not call on people to vote for a specific candidate, “they are not prohibited as a campaign finance matter,” said Jan Baran, a Washington lawyer who frequently represents Republican candidates.

The States

U.S. News & World Report: Idaho’s Top Election Chief Talks Possible Campaign Reforms

By Kimberlee Kruesi, Associated Press

Idaho Secretary of State Lawerence Denney told lawmakers Wednesday that if a company wants to try to buy a lawmaker with campaign contributions then the public should have easy access to those records.

Denney added that he would be fine if there were no limits on campaign contributions because courts have consistently ruled the government can’t restrict the public’s First Amendment rights. Furthermore, the Republican election chief stressed that the system could benefit with having more transparency and possibly harsher fines for campaign violations…

“There’s a lot less money that’s coming directly to candidates. A lot more of the money is being spent by independent expenditures,” Denney said. “I think that’s a change that we probably need to address in the sunshine laws, because it’s really not reported.”

Denney made his remarks Wednesday while listing possible changes to the state’s Sunshine Law…

Earlier this year, House Speaker Scott Bedke and Senate President Pro Tem Brent Hill announced they were forming a work group to find ways to increase transparency in the timing and reporting of campaign activity surrounding candidates, political action committees and lobbyists.

Detroit News: Don’t pump more money into politics

By Joe Schwarz

The Michigan Senate is considering Senate Bill 335, which would allow unrestricted independent political spending by outside groups in Michigan’s elections. The bill, introduced by Sen. Dave Robertson, R- Grand Blanc, would do away with state campaign contribution limits and allow Super PACs to get involved in state referenda and ballot initiatives by expanding existing campaign finance loopholes.

To say that this is bad policy would be an understatement. We are at a moment when Americans’ trust in government is incredibly low, and efforts like these only erode that trust further. I am particularly disappointed to see leaders from my own party looking to further weaken basic expectations of transparency and accountability. How can Michigan citizens believe that their elected representatives are looking out for their best interests, if they are receiving undocumented and unlimited financial contributions from anonymous individuals and corporations?

Madison Capital Times: We need a statewide referendum on big money in politics

By Rep. Lisa Subeck and Sen. Dave Hansen

It’s gotten to the point where even the candidates themselves are being drowned out to the point they have little to no control over their campaigns or message.

To fix the problem we’ve introduced a resolution calling for a statewide advisory referendum to give voters the opportunity to voice their support for a constitutional amendment overturning Citizens United…

Now is the time to end this dangerous trend of selling our government to the highest bidder. In the post-Citizens United era, public distrust in elected officials is at an all-time high. It is time to get big money out of politics, and the first step is to let the people’s voices be heard on overturning Citizens United.