In the News
National Review: The Strange World of Kavanaugh Opposition
By Bradley A. Smith
If Judge Kavanaugh thought that the Constitution protected the right of non-resident aliens to make political expenditures in U.S. elections, Bluman was a perfect case to strike down that law. The plaintiffs supported mainstream Republican and Democratic candidates. They were from a nation long allied with the U.S., not from geopolitical rivals such as China or Russia. No less an authority than the president had proclaimed that the ban on foreign spending was now open to question. They sought to make small contributions and expenditures – no more than $100 each in three or four different races. There was no chance that these small contributions would “corrupt” the legislature, the traditional justification for limits on campaign contributions and spending.
Yet, in a thorough, scholarly opinion for a unanimous panel, Judge Kavanaugh upheld the statute banning foreign contributions. Kavanaugh noted that the Supreme Court has upheld laws barring non-citizens from voting, participating on juries, or working as public-school teachers and police officers. Aliens have many constitutional rights, he concluded, but “the right to govern is reserved to citizens.”
At the Supreme Court, Judge Kavanaugh’s decision was summarily affirmed without dissent. And that, as they say, was that.
Until now. Desperate times call for desperate arguments, and Senate minority leader Chuck Schumer and other Kavanaugh detractors now claim that upholding the ban on foreign spending in elections is actually evidence of Kavanaugh’s intent to subvert the ban. Follow?
New from the Institute for Free Speech
Facebook’s Free Speech Paradox
By Eric Peterson
Facebook founder Mark Zuckerberg has come under fire for comments in a recent interview on the technology podcast, Recode Decode. During the interview, Zuckerberg defended Facebook’s practice of not removing content that is blatantly false. In defense of this practice, Zuckerberg articulated his belief that Facebook shouldn’t become an arbiter of truth…
Unfortunately, although Facebook’s respectable policy on false content embodies principles of free speech, some of Facebook’s other policies don’t live up to the same principles.
In the very same interview, Zuckerberg spoke at length of Facebook’s recent policy change regarding online advertisements. Zuckerberg explained, “[a]nd in the U.S., we’re also even going so far as verifying the identify and location of every single advertiser … [w]ho wants to run a political or issue ad, which, for a lot of folks, legitimate folks, has slowed down the process of buying ads, which I think can have its own costs for discourse, but we just think is the right precaution to be taking on this.” …
As Zuckerberg rightly acknowledged, Facebook’s new requirements have indeed impeded Americans’ ability to promote messages on the platform. Take, for example, the story of one author working to promote his forthcoming book on nationalism on Facebook…
Furthermore, many of Facebook’s new “transparency measures” conflict with the company’s stated desire of protecting the safety of the users on the platform. Those wishing to purchase political ads will have to give their Social Security number, a government-issued ID, and their mailing address to Facebook. In an age where companies fear hacking and individuals stress over public exposure of their personal information, it’s little comfort that Facebook will now be in possession of this sensitive data.
First Amendment
New York Times: Liberals, Don’t Lose Faith in the First Amendment
By David Cole
Have conservatives hijacked the First Amendment?
Critics are increasingly making this claim, maintaining that under Chief Justice John G. Roberts Jr., the First Amendment, once an important safeguard for progressive speech, has become a boon to corporations, conservatives and the powerful.
But in most instances, the First Amendment doesn’t favor speech of the right or the left; it simply takes the government out of the business of controlling speakers by virtue of what they say. It often empowers the powerless. And most important, it helps check official abuse…
Some argue that the First Amendment’s very neutrality is problematic, because in an unequal society, the amendment will favor the haves over the have-nots. We all have a formally equal right to speak, but only George Soros, the Koch brothers and a handful of others can spend hundreds of millions of dollars advancing their preferred candidates or positions.
But this argument proves too much. All rights are more valuable for the rich. The rights to have an abortion, to send your children to private school, to exclude others from your property or to hire your own criminal defense lawyer are all more fully enjoyed by people with resources. Social inequality may be a reason to support progressive taxation or robust equal protection guarantees; it’s not a reason to retreat from free speech principles.
In a more fundamental sense, the First Amendment favors people without power and influence. In a democracy, the rich and those in the majority don’t need constitutional protections; they can generally enact their desires through ordinary political processes. The targets of censorship are typically dissidents, outsiders, the marginalized.
Supreme Court
Petition for a Writ of Certiorari in Lair v. Mangan
By James Bopp, Jr.
Montana imposes two types of candidate contribution limits. The first, the Base Limits, restrict the amount an individual or political committee can contribute to a candidate. These limits are among the lowest in the nation. The second, the Aggregate Limits restrict the amount all political party entities in aggregate can make to a particular candidate, even though each political party entity is organized and operates independently from all others…
[T]his case presents the exceptionally important question of whether Montana can stifle the voices of individuals, political committees, and political parties through very low contribution limits without any evidence of quid pro quo corruption, and, with respect to the Aggregate Limits, without any evidence of circumvention concerns, contrary to this Court’s First Amendment jurisprudence and conflicting with other Circuits. The Ninth Circuit conflicts with the Second and Sixth Circuits (in upholding the Limits without actual evidence of quid pro quo corruption or its appearance), the Sixth and Eighth Circuits (in failing to recognizing the Limits are different in kind than those previously upheld), the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, Eleventh, and D.C. Circuits and the Colorado Supreme Court (in failing to recognize Randall as mandatory authority), and with the Fifth Circuit (in upholding the Aggregate Limits). This Court should resolve these splits by granting the petition.
The Courts
Courthouse News Service: Vermont Campaign-Finance Limits Survive Appeal
By Nick Rummell
Vermont does not trample the First Amendment by hinging public financing of political candidates on their adherence to certain rules, the Second Circuit ruled Tuesday.
The 52-page opinion upholds the dismissal of a lawsuit by a candidate for Vermont lieutenant governor who argued that his receipt of public financing should not force him to curtail expenditures and contributions from private parties.
Finding Vermont’s scheme constitutional, the Second Circuit noted that campaigns have the option to turn down public funds but must play by the restrictive rules if they want public financing…
Lieutenant governor candidate Dean Corren brought the underlying suit against the state’s attorney general in 2015 after his campaign was penalized for $72,000 because of an email inviting citizens to a rally.
The email, sent to nearly 20,000 subscribers in October 2014 by the Vermont Democratic Party, invited people to join a rally with Sen. Bernie Sanders, Corren and other local candidates.
A week after the email was sent, Vermont Attorney General William Sorrell alerted the campaign that it had violated Vermont election laws restricting private contributions to publicly financed campaigns…
Corren’s complaint was backed by Lieutenant Gov. David Zuckerman and the Vermont Progressive Party, as well as several other candidates.
Washington Post: Federal judge blocks posting of blueprints for 3-D-printed guns hours before they were to be published
By Deanna Paul, Meagan Flynn and Katie Zezima
U.S. District Court Judge Robert S. Lasnik granted a temporary restraining order Tuesday night barring a trove of downloadable information about creating the do-it-yourself weapons.
Eight attorneys general and the District of Columbia argued that the instructions posed a national security threat. New York Gov. Andrew Cuomo (D) on Tuesday also issued a cease-and-desist order against the man who was scheduled to post them online…
Josh Blackman, a lawyer who represents Cody Wilson, the founder of the nonprofit that planned to post the instructions, said the restraining order violates protected First Amendment rights.
“We were disappointed in the ruling and view it as a massive prior restraint of free speech,” Blackman said…
State Department spokeswoman Heather Nauert said U.S. citizens have been legally able to download the files for years and that the State Department was involved because it controls access to U.S. defense technology.
Wilson has maintained that this is a First Amendment case, claiming that the government’s attempts to block the publication of the information on the Web amounts to prior restraint barred by Supreme Court precedent. Blackman, Wilson’s attorney, compared the state government’s attempts to block his client’s website to the Pentagon Papers case, in which the Nixon administration unsuccessfully tried to stop the New York Times and The Washington Post from publishing the contents of a leaked Vietnam War report.
Nauert said the Justice Department recommended that the case settle because it would probably be lost on First Amendment grounds.
Disclosure
University of Virginia School of Law: Public Disclosure, Once Thought To Be a Cure-All, Can Lead to Corruption
By Eric Williamson
More information leads to less corruption. The thought has been repeated so often, it must be true, right?
Professor Michael Gilbert of the University of Virginia School of Law says the answer is not so clear.
Gilbert, who teaches courses on election law, legislation, and law and economics, has authored a new paper, “Transparency and Corruption: A General Analysis,” which is forthcoming in the University of Chicago Legal Forum.
In it, he argues that knowledge meant to protect the public, such as campaign finance disclosure, can facilitate illicit or unethical behavior…
What are some specific examples of transparency causing crime or other bad behavior?
In 2010, Congresswoman Eleanor Holmes Norton called a lobbyist. She left a message stating that she was “handling the largest economic development project in the United States” and that the committee’s work is “in your sector.” Norton went on to say that the lobbyist had made contributions to other members of her committee, and she was “frankly surprised” that she had not received a contribution herself. Is that extortion? Maybe not, but it’s moving in that direction. How did Congresswoman Norton know that the lobbyist had supported her colleagues but not her? Disclosure records must have been the source. The purpose of those records – the main reason law mandates disclosure of this kind – is to deter corruption, of course, not to promote it.
Online Speech Platforms
Reason: Kevin McCarthy Wants Twitter to Kick Out a Congressional Candidate
By Joe Setyon
House Majority Leader Kevin McCarthy (R-Calif.) wants Twitter to ban a congressional candidate who called first lady Melania Trump a “hoebag.”
In a tweet yesterday, Turning Point USA founder Charlie Kirk pointed out that Trump has significantly fewer staffers than her predecessor, Michelle Obama. Mark Roberts, an independent running to represent Oregon’s 2nd Congressional District, responded by suggesting Trump is a prostitute…
I’d call that tasteless but harmless and move on. McCarthy called it “disgraceful” and declared that Twitter CEO Jack Dorsey should ban Roberts from the platform as soon as possible…
The punchline: McCarthy has spent the last few months accusing social media companies of censoring conservative viewpoints. Apparently, it’s not the censorship part that offended him.
Trump Administration
Wall Street Journal: Trump Presses Sessions to End Russia Investigation
By Michael C. Bender
President Trump on Wednesday urged Attorney General Jeff Sessions to end the Russia investigation “right now,” renewing public pressure on the nation’s top law enforcement official to halt a probe that has resulted in charges against his former campaign officials and more than two dozen Russians.
“This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further,” Mr. Trump wrote in a series of Twitter posts about the investigation led by Special Counsel Robert Mueller.
Mr. Mueller was appointed not by Mr. Sessions, but by Deputy Attorney General Rod Rosenstein after the attorney general recused himself from involvement in any investigation related to the 2016 presidential race.
The president’s comments come a day after the opening of closely watched criminal trial involving Paul Manafort, Mr. Trump’s former campaign chairman who is fighting bank fraud and tax evasion charges. It the first trial by prosecutors for Mr. Mueller, who is investigating Russian interference in the 2016 election and possible coordination with Trump associates. The charges against Mr. Manafort, however, cite activities that predate the Trump campaign and aren’t related to Russia’s electoral activities.
Wall Street Journal: Pence Blames Russia for 2016 Election Interference, Vows to Tighten Cybersecurity
By Dustin Volz
Vice President Mike Pence put the blame for 2016 election interference squarely on Russia and pledged that the Trump administration would step up efforts to deter cyberattacks against U.S. democracy.
“While other nations possessed the capability, Russia meddled in our 2016 election,” Mr. Pence said Tuesday in his first significant speech about cybersecurity. “That is the unambiguous judgment of our intelligence community, and as the president said, we ‘accept the intelligence community’s conclusion.’ “
Mr. Pence’s remarks, delivered at a government-hosted cybersecurity summit in New York, amounted to the White House’s strongest condemnation of Russia’s election interference to date. Their directness stood in contrast to mixed messages from President Donald Trump in recent weeks, in which he has at times played down the role of Moscow in election interference and suggested others could be to blame, while also saying he accepted the finding of Russia’s culpability…
The summit was an attempt by the Trump administration to project a united front on prioritizing cybersecurity as a top national security concern, amid criticism from lawmakers in both parties that it hasn’t developed a coherent cybersecurity strategy, particularly on safeguarding the 2018 midterms from hacking or other forms of Russian interference.
Lobbying
CNN: Exclusive: Mueller refers foreign agent inquiries to New York prosecutors
By Erica Orden
Special counsel Robert Mueller has referred a collection of cases to New York federal prosecutors concerning whether several high-profile American lobbyists and operatives failed to register their work as foreign agents, according to people familiar with the matter.
The transfer of the inquiries marks an escalation of Mueller’s referrals to the US Attorney’s Office for the Southern District of New York in the period since he turned over a case involving President Donald Trump’s former personal attorney, Michael Cohen.
Since the spring, Mueller has referred matters to SDNY involving longtime Democratic lobbyist Tony Podesta and his work for his former firm, the Podesta Group, and former Minnesota Republican Rep. Vin Weber and his work for Mercury Public Affairs, the sources said.
One source said that former Obama White House counsel Greg Craig, a former partner at law firm Skadden, Arps, Slate, Meagher & Flom LLP, is also part of the inquiry.
None of the entities involved have been charged with wrongdoing, and there is no indication the SDNY inquiry will result in criminal charges.
It’s not clear whether they are considered one case or separate matters, these people said, though all involve inquiries into whether the men improperly performed work on behalf of groups associated with Ukraine without registering with the Justice Department as foreign agents.
The States
Arizona Capitol Times: Explanation of Clean Elections measure misleads ‘by omission,’ judge says
By Howard Fischer, Capitol Media Services
A judge on Monday ordered lawmakers to provide voters with a bit more information on the changes they want voters to make in the operation of the Citizens Clean Elections Commission.
Maricopa County Superior Court Judge Christopher Coury said the Republican-dominated Legislative Council left voters in the dark by failing to adequately explain how if the measure is approved in November it would strip away some of the existing authority of the commission to craft its own rules.
That change would require the commission to have its rules reviewed – and potentially vetoed – by the Governor’s Regulatory Review Council, made up of gubernatorial appointees, or the attorney general who is an elected partisan official. And the political campaigns of both the governor and the attorney general are subject to commission oversight and fines for violations of laws governing donations and expenditures.
Coury called the flawed portions “misleading by omission” and blocked the Secretary of State’s Office from distributing a pamphlet to voters until the description, adopted by the Republican-dominated Legislative Council on a party-line vote, is amended.
KTSP ABC Twin Cities: Minnesota Political Donors Benefiting From State Campaign Refund Program
Minnesotans this election cycle are now able to get a refund back from the state when it comes to certain contributions they make to a state-wide political candidate or party.
The political contribution refund program reimburses Minnesotans up to $50, and $100 per married couple, if they donate to a qualified candidate or recognized party, which is paid out from the state’s general fund.
So far this year, more than $1.3 million dollars has been paid back to political donors in the program, according to Department of Revenue data.
“I think some people feel it’s not appropriate to use public funds for candidates, for my view point the benefits are so substantial that this is a really a drop in the bucket for a much more lively democracy,” said George Beck, former Minnesota Campaign Finance Board Chair…
The National Conference on State Legislatures staff said Minnesota’s program is quite unique, and that only Arizona, Oregon, Arkansas, Ohio and Virginia have plans for political contributions.
More GOP backers have taken advantage of the program this election cycle, receiving back $301,653 after making donations to the Republican Party of Minnesota, according to data provided by the Department of Revenue
Meanwhile, DFL party backers were reimbursed $224,977 after their contributions to the party’s Central Committee.
Daily Press: Virginia requires campaign finance reform
By Editorial Board
What’s special about Old Dominion: it is one of only five states that set no limits on what companies can give legislators’ or legislative candidates’ campaign funds…
Most other states set limits on how much a donor can give and in some states, who can give. A law that says campaign funds can only be used for a candidate’s own campaign expenses would ensure that donations are in fact what donor’s say they are and not simply pay to play…
After calling for campaign finance reforms during the Democratic primary, Gov. Ralph Northam accepted checks from some of Virginia’s biggest corporate donors to fund his inauguration. He has also not followed through with his campaign call for a cap on campaign donations and a ban on corporate contributions.
Donations are protected political speech and Americans should be able to financially support candidates with whom they agree. Yet, politicians need to make rules for themselves about the money they get and how they use it.
