In the News

Bloomberg BNA: Conservatives, Reporters, Farmers Back Robber at Supreme Court

By Jordan S. Rubin

Though the justices are asked to decide whether the Fourth Amendment applies in Carpenter’s case, some of the outside briefs are concerned with another amendment: the First.

One of the First Amendment-focused briefs comes from the Reporters Committee for Freedom of the Press and 19 media organizations. Another was filed by a diverse band of racial justice and economic freedom groups, led by the Center for Competitive Politics, an organization whose goal, according to its website, is “to promote and defend the First Amendment’s rights to freely speak, associate, assemble, publish, and petition the government.”… 

The competitive politics brief’s concern is that, in “a world where tracking information is so precise that individual rooms can be differentiated, the locations of multiple people can be amalgamated, allowing the government to assemble an extraordinarily precise picture of citizens’ memberships, meetings, and associations.”

Thus, “the government’s warrantless access to this information threatens Americans’ First Amendment right ‘to pursue their lawful private interests privately and to associate freely with others in so doing,'” they argue, quoting NAACP v. Alabama…

A ruling against Carpenter, then, could “discourage Americans from engaging in public gatherings and private meetings of all types, chilling both social and political association and the collective speech it fosters,” they conclude. 

CCP

The Washington Post Smears Free Speech by Some Groups, Not Others

By Joe Albanese

The article portrays think tanks in sketchy terms, describing how they “shape policy in the nation’s capital, while claiming to be nonpartisan educational organizations.” The deliberate use of “claiming” here is meant to imply that such organizations are neither nonpartisan, nor merely educational. This kind of backhanded comment is nothing new; those who support increased government regulations on political speech often describe 501(c)(3) charities, like CEI, and 501(c)(4) social welfare organizations whose views they don’t like as “fake charities” or “dark money,” respectively.

Such skepticism is also nonsensical. Organizations are only “partisan” if they are formally affiliated with a political party. Expressing a consistent viewpoint – even one that overlaps more with one party’s views than another (though not completely) – does not make an organization “partisan.” And to suggest that charities cannot also be educational organizations is absurd. Well-known educational organizations like the Boy Scouts of America and Teach for America – even humanitarian organizations like the American Red Cross and UNICEF – openly acknowledge the role of public policy in achieving their goals. Every issue where citizens demand government intervention is inherently political. How can we permit some groups to participate in policy advocacy while denying others that same right?

Nonprofit Advocacy

Competitive Enterprise Institute: Washington Post Profile on CEI Climate Work Misses Half the Story

By Kent Lassman, Marlo Lewis, Jr.

The omission of any mention of the political and financial interests of billionaire environmental donors, lobbyists, advocacy groups, the United Nations, and 190-plus other governments that labored in favor of the Paris Climate treaty shows the Post is missing at least half of the story.

Anyone with an Internet connection can find ample evidence that the green movement’s funding sources dwarf those of free-market organizations. Groups like Sierra Club and Greenpeace boast annual budgets that surpass CEI’s by a factor of ten…

The Post strategically describes Greenpeace and the Climate Investigations Center (CIC) as “nonprofits” but CEI and other free-market groups as “charities.” The Post uses this distinction to imply that free-market groups are attempting to flout the law by pretending to be “charities.” It’s an odd and meaningless distinction since all of these organizations are governed by the same definitions and rules. There are indeed strict IRS guidelines for “lobbying” that restrain this activity to 10 percent of our group’s resources.

Many groups on both sides of the global warming debate engage in advocacy and lobbying efforts. 

FEC

Reuters: U.S. election agency seeks comment after Facebook cites Russian ads

By David Ingram

The U.S. Federal Election Commission voted on Thursday to seek public comment on possible regulatory changes after Facebook Inc said that Russians bought ads on the No. 1 social network during the U.S. presidential campaign.

Commissioners agreed to accept comment for 30 days on whether to revise disclaimer rules on when an ad must say who paid for it. The rules generally do not apply to political ads on Facebook and Alphabet Inc’s Google, which years ago sought exemptions from the commission.

Foreign governments are allowed under U.S. law to buy ads and publicity for certain issues if they disclose such spending, but it is unlawful for them to interfere in elections…

Election commissioners said they might hold a hearing after receiving comments, and the invited witnesses could include Facebook, Google and Twitter Inc.

Commissioners disagreed on the need for rules changes and whether the alleged Russian Facebook ads were a problem.

Pillar of Law: Pillar of Law Statement on the Nomination of Trey Trainor to the Federal Election Commission

Following President Trump’s nomination of James “Trey” Trainor III to serve as commissioner at the Federal Election Commission (FEC), Pillar of Law Institute President Benjamin Barr released the following statement:

“Trey Trainor is an excellent attorney who is well-versed in the complexities of campaign finance law. More importantly, he understands that the guarantees of the First Amendment precede campaign finance laws that often prohibit average Americans from engaging in the political process. With his expertise and principles, he is a fantastic choice to help lead the FEC.

“Trey knows all too well what happens when bureaucrats and prosecutors ignore free speech rights: innocent citizens get hurt. In 2015, Pillar of Law engaged Trey as co-counsel for a friend-of-the-court brief in just such a case in Texas, where innocent Texans were convicted-one even imprisoned-for a bribery based on an unconstitutional legal theory. These convictions were rightfully overturned, but we must do better. Appointing Trey to the FEC will help ensure such corrupt prosecutions do not happen in the first place.

“Trey Trainor is among the best legal minds nationally to safeguard political free speech rights. We applaud his nomination and wish him the best in his duties.” 

Washington Post: Our elections are facing more threats online. Our laws must catch up.

By Ellen L. Weintraub

There’s only one federal agency with the power to stem the flow of foreign money into political ads online: the Federal Election Commission, where I serve as a commissioner…

The Facebook bombshell is solid evidence that foreign powers have the will to disrupt the American political process – and the ability to do it invisibly. People can argue in good faith about the merits of unbridled corporate spending in American elections. Me, I’m not such a big fan. But no reasonable person would grant full First Amendment rights to a Russian troll farm.

Whether Russian bots are engaging in express advocacy (think “Vote for Hillary”), issue advertising (think “Build the wall”) or even disseminating news stories (think “Pizzagate”), if the effort involves any money spent by a foreign national in connection with a U.S. election, it’s in the FEC’s jurisdiction, and it’s illegal.

One way to keep bad actors from trying to break the law is by putting robust disclosure requirements in place.

Congress

New York Times: As G.O.P. Moves to Fill Courts, McConnell Takes Aim at an Enduring Hurdle

By Carl Hulse

Though the Senate has virtually eliminated the ability of the minority party to block appointments to the bench from the Supreme Court on down, individual senators can still thwart nominees from their home states by refusing to sign off on a form popularly known for its color – the blue slip.

Now, with some Democrats refusing to consent as the Trump administration moves to fill scores of judicial vacancies, Senator Mitch McConnell, the Kentucky Republican and majority leader, is for the first time publicly advocating that the blue slip be made strictly advisory when it comes to appeals court nominees – the most powerful judges after those on the Supreme Court.

“My personal view is that the blue slip, with regard to circuit court appointments, ought to simply be a notification of how you’re going to vote, not the opportunity to blackball,” Mr. McConnell said in an interview with The New York Times for “The New Washington” podcast. He said he favored retaining the blue slip authority for lower-level district court judges. 

Ethics

Politico: Trump ethics watchdog moves to allow anonymous gifts to legal defense funds

By Darren Samuelsohn

At issue for the Trump staffers is a 1993 OGE guidance document that gave a green light to organizers of legal defense funds for government employees to solicit anonymous donations from otherwise prohibited sources – like lobbyists or others with business before the government. That Clinton-era opinion reasoned that if such donors were anonymous, such donations could be legal because the employee “does not know who the paymasters are.”…

The anonymous donation issue sat on the OGE back burner until just before the 2016 election, when then-Director Walter Shaub initiated a review…

He said that in May, he instructed his staff to add a brief, one-sentence note to the top of the underlying 1993 document to signal that internal practice had diverged from the formal guidance…

The guidance document has since been updated to replace Shaub’s note with a longer disclaimer signaling the August 1993 document allowing anonymous donations to legal funds remains in force – and “HAS NOT CHANGED.” The guidance also notes that “BECAUSE EACH ANALYSIS IS VERY FACT SPECIFIC” government ethics officials should do a deeper dive before advising individual employees on the rules.

The Media

Daily Dot: Here’s why the murky world of digital political ads matters

By Andrew Wyrich

Not only are digital political ads enticing because they can be targeted to specific audiences, but there are practically no regulations imposed on them from the Federal Election Commission (FEC).

Political action committees that create ads for candidates are only required to disclose who is paying for the ads if they are bought on websites. Ads used on free social media accounts like YouTube, Facebook, Instagram and Twitter are not as tightly regulated…

According to the FEC, “electioneering communications” only include broadcast, cable, or satellite communications.

But in the wake of Facebook announcing it sold approximately $100,000 worth of political ads to a Russian “troll farm” during the 2016 election, some lawmakers think it might be time to re-think the hands-off approach the government has had on digital political ads…

While companies like Twitter and Facebook are private companies, their platforms have become essential parts of the American democratic process. Lawmakers like Warner are likely to continue to push the issue of making these kinds of ad buys public in the future. 

The States

Detroit Free Press: Bill passed by Senate would expand corporate and special-interest spending on campaigns

By Kathleen Gray

Under the bill, candidates could solicit unlimited contributions to independent expenditure committees or super PACs, which could then use the money to support the aspirations of the candidate.

Supporters of the bill claim the measure simplify codifies the federal Citizens United decision into state law…

Senate Majority Leader Arlan Meekhof, R-West Olive, said the bill is just an expansion of free speech for all citizens.

“We’re codifying what the Supreme Court said is free speech for all people including corporations,” he said. “Everybody should have free speech, and the Supreme Court has said that free speech equals money and what you give.” 

The bill – SB 335 – passed on a 23-12 vote with only Republicans supporting the legislation. All the Senate Democrats, plus Republicans Margaret O’Brien, of Portage, and Tory Rocca of Sterling Heights, voted against the bill.

The legislation now moves to the House of Representatives for consideration. Meekhof said he has received assurances from Republican leadership in the House that it will be taken up and passed.