Daily Media Links 12/19: Separation of Campaign and State, Would the Far Left [have] Required Disclosure for the NAACP in the 40s and 50s?, Arizona high court upholds higher campaign-contribution limits, and more…

In the News

George Washington Law Review: Separation of Campaign and State

By Bradley A. Smith

The Court correctly recognizes the deeply troubling nature of the government policies at issue in Davis and Arizona Free Enterprise Club, which involved the government in favoring certain candidates over others, but it has not successfully articulated why those policies are offensive to the First Amendment, given that each law provides more resources for a candidate to speak.

This Article argues that the Court’s opinions show only an inchoate recognition of the core problem. Government involvement in regulating and especially in subsidizing candidate speech inherently entangles government in campaigns in a manner incompatible with core American assumptions about democracy, in much the same way that direct subsidies to churches violate the First Amendment’s religion clauses even if made available to all religions.

The Roberts Court, however, is trapped by its refusal to challenge precedents allowing government subsidies of campaigns and wrongly confusing the government’s authority to regulate the “time, place and manner” of elections under Article I, Section 4 of the Constitution as the authority to regulate political speech and campaigns. This Article argues from history, text, and structure that Article I, Section 4 applies only to regulating such actual election mechanics as the system of election, maintenance of voter lists, and the method of casting and counting ballots, not to the regulation of political debate that precedes elections.

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RNLA: Would the Far Left Required Disclosure for the NAACP in the 40s and 50s?

Former Federal Election Commission (FEC) Chair, Professor and RNLA Member Brad Smith has an excellent article tearing down the house of cards that is the argument for the IRS regulation of politics.  Smith points out that really this effort to so involve the IRS is an end run around the bipartisan FEC and is based on three myths. 

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Human Events: Silencing Conservatives – the Administration’s latest attempt to censor political speech

By Hans von Spakovsky

But the new proposed regulation would make things even worse.  It suffers from a crucial defect: the assumption by the IRS that engaging in political speech and political activity do not “promote social welfare.”  We live in a society in which an all-too-powerful federal government regulates almost every facet of Americans’ lives, businesses, and property.  Membership organizations such as the NRA or NARAL have to participate in the political life of the nation if they want to advance the particular issues their members care about.  As former FEC Chairman Brad Smith says, “What kind of democracy claims that political participation is not in the interest of ‘social welfare’?”

Another fundamental mistake with the proposed regulation is its sweeping view of “candidate-related political activity.”  This would include nonpartisan voter registration and get-out-the vote drives as well as voter guides and hosting of candidate debates or meet-the-candidate events.

What is partisan about inviting the candidates in a particular election to a debate to discuss their views on the issues of interest to an organization’s members?  How is an organization supposed to educate its members if it can’t provide them with a voter guide that lists an officeholder’s votes on bills affecting the particular issues the organization is organized around?

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Real Clear Markets: Obama Makes the IRS Free Speech Cop Too

By Diana Furchtgott-Roth

I am not suggesting that the Internal Revenue Service regulate other tax-exempt organizations, such as 501(c)(3)s and 501(c)(5)s. Rather, the IRS should not be regulating in this area at all. Political activity is regulated by the Federal Election Commission. The First Amendment requires that everyone have free speech, and to the extent that contributions and speech are limited, this should be the purview of the FEC.

Writing in the Wall Street Journal last month, law professor and former FEC chairman Bradley Smith said, “Furthermore, while Section 501(c)(4) states that it applies to organizations operating exclusively for the promotion of “social welfare,” the statute does not define ‘social welfare.’ Since when, in a democratic society, are nonpartisan get-out-the-vote drives, voter registration, voter education, and meet-the-candidates nights-all of which will be limited by the IRS’s proposed rules-not activities in support of social welfare?”

Meanwhile, unions are actively engaged in political activity and get-out-the-vote drives, the vast majority on behalf of Democratic candidates. In the 2012 election cycle, according to the Center for Responsive Politics, unions gave $143 million to federal candidates, parties, and outside groups.

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Independent Groups

Roll Call: The Year in Political Money: Less Transparency, More Deregulation

By Eliza Newlin Carney

It was a bad year for disclosure, both on the legislative and regulatory fronts. Congressional Democrats lost no time reintroducing the transparency bill known as the DISCLOSE Act, which had come close to passing in the previous Congress. But the bill was quickly overwhelmed on Capitol Hill by politically charged disputes over immigration, health care and the federal budget.

Advocates of campaign finance limits managed to generate more than 600,000 public comments urging the Securities and Exchange Commission to require corporations to more fully report their political spending. Both the SEC plan and the DISCLOSE Act had set out to shed light on unreported political spending in the wake of the Supreme Court’s 2010 Citizens United v. Federal Election Commission ruling, which deregulated independent campaign spending, including by social welfare and trade groups exempt from disclosure rules.

But the SEC backed away from its public disclosure agenda, omitting from its to-do list for 2014 any mention of a corporate disclosure rule that the agency had once flagged as a priority for this year.

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Candidates, Politicians, Campaigns, and Parties

Washington Post: Worst Year in Washington


By Chris Cilizza

First came the scandals.

The Internal Revenue Service acknowledged that it had targeted tea party groups’ applications for nonprofit, tax-exempt status and subjected them to heightened scrutiny, giving Republicans a way to rally their base after a dispiriting election.

Edward Snowden’s leaks of scads of classified materials detailing the vastness of the National Security Agency’s spying operation not only put Obama on his heels for months but badly damaged his credibility with U.S. allies such as Germany and Brazil.

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Politico: Congressman horse trades for Humane Society

Whitfield defends the interaction between his official actions and his wife’s lobbying, and he adds that anyone who doesn’t like it can file a complaint against him with the House Ethics Committee.  

“I don’t view that as an ethics violation because it’s an issue that I’ve been involved in since I’ve been in Congress and this is a practice that must be and should be stopped,” Whitfield said. “There’s a big difference in my mind of getting financial gain for some financial institution, to trying to prevent cruelty to animals.”  

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More Soft Money Hard Law: More about the FEC’s Troubles

By Bob Bauer

There was a time, then, when the FEC did muster bipartisan majorities, but its actions met with severe disapproval. Now the disapproval attaches to its failure to reach agreement. Damned if it does act—damned if it doesn’t. What would account for this? This would account for it: that on the hard questions, which are the questions the FEC is judged on, there is considerable ideological and legal disagreement outside the agency, and its inaction will be judged harshly by some while its action is condemned just as harshly by others. The FEC is not having a family feud incomprehensible to outsiders. Its deadlocks, squabbles and sniping are a miniaturized version of the brawl taking place in the wider political and policy world. 

Calls for agency reform presume that divisions inside the agency can be overcome by a unity of perspective found outside. But it seems unlikely that a political and legal community divided on campaign finance reform could reform the agency to overcome those same divisions—divisions which the agency is simply replicating. 

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State and Local

Arizona –– The Republic: Arizona high court upholds higher campaign-contribution limits

By Mary Jo Pitzl

Higher campaign-contribution limits — up to $4,000 per candidate in a statewide race — are in force for the 2014 elections, in the wake of a Tuesday state Supreme Court ruling.

The five-member court sided with state legislative leaders, who argued the higher limits set out in a bill passed this year do not violate the state Constitution.

Led by Senate President Andy Biggs, R-Gilbert, and House Speaker Andy Tobin, R-Paulden, the lawmakers argued the existing limits inhibited a candidate’s free-speech rights. The higher limits would help fend off potentially distorting messages from richly funded independent-expenditure committees, they said.

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New York –– NY Post: Wife of key Cuomo aide quits lobbying firm

By Fredric U. Dicker

ALBANY — The wife of a key aide to Gov. Cuomo has quietly resigned as managing director of one of New York’s most aggressive lobbying and public-relations firms amid questions of whether she was cashing in on her administration ties to the governor, The Post has learned. 

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Oklahoma –– NewsOK: Proposed rule changes would change Oklahoma’s political contribution limits

By Randy Ellis

Under the proposed rules, each person would be allowed to give up to $2,600 to a candidate per election, which means an individual could give a candidate $2,600 for a primary election, $2,600 for a runoff election and another $2,600 for the general election if the candidate was on the ballot each time. The individual’s spouse could do the same thing. Unopposed candidates could receive up to $2,600 from each contributor.

Why change?

“I believe that family limit to be unconstitutional,” said Lee Slater, executive director of the Oklahoma Ethics Commission. “I believe that it discriminates against a married person as opposed to a single person.”

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The Center for Competitive Politics is now the Institute for Free Speech.