Daily Media Links 2/25: Exonerating Rick Perry, Twilight of the Super PAC, Does Money Really Matter in Politics?, and more…

In the News

New York Times: The Power of Politcal Money Is Overrated

Bradley A. Smith

Money can be an equalizer even when it is unequal. Consider all the free media that Donald Trump receives. Because he’s colorful and controversial, the press covers his every utterance. His competitors, however, have to rely much more on paid media to reach voters. On the Democratic side, Hillary Clinton has raised far more than Sanders, but if we limited candidate spending, as some advocate, Hillary would already be taking a victory lap thanks to high name recognition, support from the Democratic Party, and a media that presupposed her nomination. Spending has helped Bernie compete, despite being outspent. And for thousands of Americans excited by Sanders’ campaign, contributing is the one thing they can realistically do to help.

But while money is critical to inform the public and give all views a hearing, this election proves once again that money can’t make voters like the views they hear. Jeb Bush is not the only lavishly funded candidate to drop out of the race – Rick Perry, Scott Walker and others also raised and spent considerable sums.

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CCP

Victory in SBA List v. Driehaus

Luke Wachob

After the Supreme Court ruled 9-0 that the challenge could move forward, the Sixth Circuit rightly determined that Ohio’s false statement is unconstitutional. The court concluded: “Ohio’s political false-statements laws are content-based restrictions targeting core political speech that are not narrowly tailored to serve the state’s admittedly compelling interest in conducting fair elections. Accordingly, we affirm the district court’s judgment finding the laws unconstitutional.”

Voters, not the government, should be the ones to determine whether political statements are true, false, or somewhere in between. Unfortunately, Ohio is not the only state to implement false statement laws that insert government into the absurd business of acting as the “truth police.” Hopefully, the Sixth Circuit’s ruling will knock some sense into other states with similar statutes and serve as a reminder that restrictions on speech, no matter how well-intended, lead to disastrous results.

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The Courts

Wall Street Journal: Exonerating Rick Perry

Editorial Board

Political prosecutions are far too common these days, so thank heavens for the courts. On Wednesday the highest criminal court in Texas threw out the last of two indictments in the egregious case against former Republican Governor Rick Perry.

Special prosecutor Michael McCrum persuaded a Travis County grand jury to indict then-Gov. Perry in 2014 of the high crime of vetoing legislation. Seriously. In 2013 Mr. Perry threatened to veto $7.5 million in funding for the public integrity arm of the Travis County district attorney’s office unless the Democratic DA resigned after she was caught on video berating police officers who had arrested her for drunk driving. She refused, and the legislature failed to override the Governor’s veto.

The prosecutor called Mr. Perry’s veto threat “coercion of a public servant” and the veto itself an “abuse of official capacity” under Texas law. On Wednesday the Texas Court of Criminal Appeals ruled 6-2 that charging Mr. Perry under the abuse statute violated the separation of powers in the state constitution: “No law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime,”

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Washington Post: Court strikes down Ohio ban on knowingly or recklessly false statements about candidates

Eugene Volokh

The U.S. Court of Appeals for the Sixth Circuit just held today, in Susan B. Anthony List v. Driehaus, that the Ohio ban on “disseminating false information about a political candidate in campaign materials during the campaign season ‘knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate’” violates the First Amendment.

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Independent Groups

The Atlantic: Twilight of the Super PAC

David Frum

Never has so much bought so little of what it was meant to buy. Obviously the funds expended on behalf of Jeb Bush have bought a great deal for a great many people. Even if the estimate of Mike Murphy’s take is overstated—or possibly confuses gross billings by his firm with net income to himself—the 2016 super PACs have provided princely incomes for their principals and comfortable livelihoods for hundreds more. The question that is bound to occur to super PAC donors is: “Are we being cheated?” Increasingly, super PACs look like the political world’s equivalent of hedge funds: institutions that charge vastly above-market fees to deliver sub-market returns.

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“Money in Politics”

New York Times: Does Money Really Matter in Politics?

When Jeb Bush dropped out of the presidential race Saturday night after three ignominious primary defeats, many wonder what his $150 million in campaign and super PAC donations had meant. Opponents of the Supreme Court’s weakening of campaign finance rules warned that the role of money in politics would swell. But if such a huge treasury did nothing for a prominent candidate — and even Hillary Clinton’s coffer haven’t kept Bernie Sanders at bay — is the role of campaign contributions exaggerated?

Heather McGhee, Bradley A. Smith, David Donnelly, and Jennifer N. Victor discuss.

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Supreme Court

Washington Post: Republican governor of Nevada Brian Sandoval being considered for Supreme Court

Mike Debonis and Juliet Eilperin

The White House is considering picking the Republican governor from Nevada to fill the current vacancy on the Supreme Court, scrambling political calculations in what is expected to be a contentious confirmation battle in which Senate Republicans have pledged to play the role of roadblock.

President Obama is weighing the selection of Brian Sandoval, a centrist former federal judge who has served as governor since 2011, according to two people familiar with the process. Though the review process is in its initial phases and it is unclear whether the governor could ultimately emerge as the president’s pick.

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Wall Street Journal: Only Eight Justices? So What

Josh Blackman and Ilya Shapiro

Justice Antonin Scalia’s death leaves the Supreme Court in a tough spot, but it is one for which the institution is prepared. Due to death, retirement or resignation—or recusal in individual cases—the high court has often been short-handed. Since World War II there have been 15 periods when the court had eight justices, and each time the court managed its docket without a hitch.

Even in the rare cases when eight justices split evenly, 25 times the court affirmed the lower-court judgment without opinion (or precedential value) and 54 times the court set the case for reargument. The former approach allowed the issues to be raised again in similar future cases. The latter allowed for proper resolutions once the ninth justice joined—and only 25 of those cases ended up 5-4, meaning the new justice made no difference in over half of the reargued cases.

In other words, rather than making the judicial system grind to a halt, a Supreme Court vacancy merely delays rulings in a small number of cases.

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Dangers of Disclosure

Washington Post: Cubs chairman thinks it’s ‘surreal when Donald Trump threatens your mom’

Cindy Boren

It’s a little surreal when Donald Trump threatens your mom,” Tom Ricketts told reporters Wednesday (via the Chicago Tribune). “The fact is, whether it’s my mom or my dad on his spending stuff or my sister on marriage equality or my brothers and what they do or what we do with the team, we’re pretty much an open book.”

Ricketts, the chief executive officer for a Chicago investment bank, denied that Trump would find something if he investigated the family.

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Influence

Fader: How Artists Have Helped Sustain Bernie Sanders’ Run To The White House

Jeff Ihaza

The show, titled Weekend With Bernie, was organized by 27-year-old artist Matt Starr and ran on a budget of $54, which he and his producer Brittany Natale split evenly. Starr’s and Natale’s single contributions have a bigger significance, though, as it’s the average individual donation to Sanders campaign. Currently, Sanders has raised over $20 million in individual contributions, a fact that has become a unifier among supporters.

“I wanted to make it a point to show people that anyone who wants to help out with the campaign can find a way,” Starr said in an email ahead of the event. All of the artwork for the show—from political curiosities like an installation by digital artist Ryder Ripps that features video chats with the members of the prolific Facebook group “Bernie Sanders Dank Meme Stash” to a painting of Bernie Sanders as Lil B (B for Bernie, of course) made by electronic producer Ryan Hemsworth—was donated, with sale proceeds going directly to the campaign. Artist input, Starr said, is vital.

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The Media

New York Times: My Firsthand Encounter With Donald Trump’s Free Media Machine

Nicholas Confessore

But even beyond that, it is because Mr. Trump doesn’t spend much on television ads, usually the single most expensive budget item for a modern presidential campaign. Instead, Mr. Trump garners what political hacks call “earned media.” He holds big rallies, says provocative things that his audience adores — “I’d like to punch him in the face,” Mr. Trump said of a heckler at his event in Nevada on Monday — and reaps of a wave of news coverage in newspapers and on television. This dynamic has earned the scorn of Trump-haters on the right and left, who have taken to blaming the news media for enabling Mr. Trump’s rise.

Just how effective is it? Mr. Trump won the Nevada caucuses on Tuesday. Now, according to a tally published this week by NBC News, three of his Republican rivals — Mr. Kasich, Marco Rubio and Ted Cruz — are spending a combined $1.5 million on television ads in the 11 states holding primaries or caucuses on March 1, known as Super Tuesday.

Mr. Trump’s bill?

Zero.

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Candidates and Campaigns

New York Times: Donald Trump, Crony Capitalist

Luigi Zingales

Four years ago, in the first draft of my book “A Capitalism for the People,” I had a section dedicated to how worrisome a Donald J. Trump presidential bid would be for America. I was not prescient. It’s just that having grown up in Italy, I knew how a real estate tycoon — in this case, Silvio Berlusconi — whose career exemplified crony capitalism could become the leader of supposed pro-market forces, and I knew what it meant for the country.

I cut this section after being told that my point was irrelevant: In America, there was no chance that a character like Mr. Trump would ever be seriously considered as a candidate.

Then 2016 happened: After sweeping wins in New Hampshire and South Carolina, Mr. Trump has shattered that notion. The Trump phenomenon caught everybody by surprise. Yet it is a manifestation of a fundamental contradiction long present in the Republican Party: Despite fierce anti-big-business sentiment among many Republican voters, no Republican candidate has emerged to champion them.

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The States

Billings Gazette: Emails show Bullock’s office quietly influenced ‘dark money’ rules

James DeHaven

Motl, who has been called “the most important person in Montana politics,” said there are no circumstances under which his coordination with Bullock’s office would qualify as a reportable election activity.

He had a harder time explaining how and why Bullock’s top policy adviser wound up helping to rewrite the state’s campaign finance rules.

Motl recalled Molloy was only looped into the drafting process after a bruising legislative committee review of the proposed regulations and only at the request of Al Smith, executive director of the Montana Trial Lawyers Association and a foremost critic of several draft rules.

That’s not the way Smith remembers it.

He said he thought Molloy was involved in the rule-making process from the get-go.

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