Daily Media Links 6/29: Pro-Hillary group takes $200K in banned donations, Supreme Court again supports ‘ingratiation and access’ in politics, and more…


Supreme Court declines review of Delaware disclosure law, Thomas dissents

“We are disappointed that the Court declined to hear this important case,” said CCP Legal Director Allen Dickerson, who is representing Delaware Strong Families (DSF) in the case. “We are studying other options that might allow our client to publish this information without violating its supporters’ privacy rights.”

“Eventually the Supreme Court is going to have to decide if Buckley v. Valeo is still good law, or if the government has a right to know about and publicly disclose your affiliations and memberships every time a candidate is mentioned,” said CCP Chairman Bradley Smith, a former Chairman of the Federal Election Commission.

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In the News

Washington Times: Joyful Noise unites ‘citizens for Sanders’

Eric Wang

Meanwhile, a Sanders supporter recently demonstrated that the current campaign finance laws are already so burdensome that even relatively sophisticated Americans cannot comply with them. Ironically, despite the resentment Sen. Sanders has unfairly stoked against the Citizens United decision, this corporate supporter “feeling the Bern” ran smack into multiple legal obstacles that prevent political participation by mom-and-pop corporations.

Evidently unbothered by “the absurd notion that money is speech,” Joyful Noise, an independent music label, recently used its corporate resources to raise money for Mr. Sanders by creating and distributing an audio track on its website entitled “Feel It In Your Guts.” To download the track, visitors had to first contribute to the Sanders campaign and then upload proof of the contribution.

According to the download page, this Byzantine process was required because “Joyful Noise is a company … and that means Bernie won’t accept a check from us. True story. So, we can’t merely sell you the release and pass the donation to Bernie.”

The Center for Competitive Politics has identified at least four ways in which Joyful Noise apparently violated the misguided and complex campaign finance laws:

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ABC News: Justices Reject Challenge to Delaware Campaign Finance Law

Associated Press

The Supreme Court is rejecting a conservative group’s challenge to a Delaware campaign finance law.

The justices on Tuesday left in place a lower court ruling allowing the 2012 law to be enforced. The measure requires third-party groups working independently of candidates to influence elections to disclose the source of donations.

Delaware Strong Families challenged the disclosure requirements.

Justices Samuel Alito and Clarence Thomas said they would have heard the group’s appeal.

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Wilmington News Journal: Supreme Court rejects challenge to Delaware election law

Jessica Masulli Reyes

Center for Competitive Politics President David Keating said they were disappointed that the court declined to hear the case. He called the law the most radical in the country.

“The concern is anyone who mentions the name of a candidate near an election has to file reports of all their donors,” he said. “It is an enormous burden.”..

The center pointed to an unusual six-page dissent by Justice Clarence Thomas that said this case could have been an opportunity to clarify that the state’s interest in transparency does not always trump First Amendment rights in federal and state elections.

“In my view, the purported government interest in an informed electorate cannot justify the First Amendment burdens that disclosure requirements impose,” Thomas wrote.

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Courthouse News Service: Supreme Court Rejects Citizens United Offshoot

Barbara Leonard

Delaware Strong Families sought appellate relief, but the Supreme Court shot the group down Tuesday without comment.

Justice Samuel Alito said simply that he would have granted certiorari, but Justice Clarence Thomas penned a six-page dissent about the case.

Arguing that “First Amendment harms justify eliminating disclosure requirements altogether,” Thomas said Delaware’s scheme “is far broader than those the court has previously upheld.”

“In my view, it is time for the court to reconsider whether a State’s interest in an informed electorate can ever justify the disclosure of otherwise anonymous donor rolls,” the dissent continues.

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SCOTUS Blog: Court to hear major new controversies — next Term

Lyle Denniston

Again without an explanation, the Court refused to hear a Delaware group’s challenge to a new state law requiring the public disclosure of information about people who gave money to an organization that sought to put out a guide for voters.  In Delaware Strong Families v. Denn, Justice Thomas wrote a dissenting opinion for himself alone, arguing that the Court should now reconsider its support for compelled disclosure rules for political donors.  Justice Alito separately noted simply that he would have granted review of the Delaware group’s petition.

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Event Today

Cato Institute: Digital Speech under Attack: How Regulators Are Trying to Shut Down Dissent Online

June 29, 2016

In recent years political speech on digital media has again come under increasing scrutiny from regulators in Washington. This is particularly true of the FEC — which has tried to expand disclosure laws and apply campaign finance laws to unpaid political accounts on Twitter — and the FCC — which ruled last year that Internet service providers do not have a right to free speech.

But, this move toward tighter regulation has not been without its dissenters. In February of last year, FEC commissioner Lee Goodman and FCC commissioner Ajit Pai co-authored a Politico op-ed arguing that “without government regulation, political speech and civic engagement have flourished on the Internet, and ordinary citizens have had the same freedom and ability to disseminate their political opinions to a wide public audience as large media corporations.”

Is our digital speech under serious attack? What is the current status of free speech online, and what is it likely to look like under the next administration? How might new regulations impact political organizing online?

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Free Speech

Library of Law and Liberty: Speech Equality’s Crushing Weight: Derek Muller Replies

Derek Muller

To a new series of rhetorical questions, what is the difference between the wealthy billionaire (cited as Sheldon Adelson in Professor Hasen’s piece) funding a candidate’s campaign, and the wealthy billionaire (perhaps Ross Perot) funding his own campaign? (An answer might be to neutralize the speech of both billionaires in the name of equality.) Or Sheldon Adelson the casino magnate speaking, subject to potentially onerous restrictions, against Sheldon Adelson the newspaper owner speaking, subject to an exemption because of our robust commitment to, at least, wealthy media as speakers?

It might be, I suppose, that only some forms of wealth are uniquely problematic to our democratic discourse. But I have not yet been convinced, given the many exceptions we feel compelled to include in our discourse that will naturally lead to some inequality. The better solution, I think, is to avoid the government picking the winners and losers in this equality debate.

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Independent Groups

The Hill: Pro-Hillary group takes $200K in banned donations

Harper Neidig and Jonathan Swan

According to a review of contributions by The Hill, Boston-based Suffolk Construction made two contributions of $100,000 to Priorities USA, which is backing the presumptive Democratic presidential nominee. 

At the time it made the contributions, Suffolk held multiple contracts worth $976,560 with the Department of Defense for maintenance and construction projects at a Naval base in Newport, R.I., and the U.S. Military Academy in West Point, N.Y., according to the government website USASpending.gov…

The donations from Suffolk highlight how a 70-year-old campaign finance law meant to prevent pay-to-play deals between public officials and companies making money from the government is often ignored by those making the donations and those on the receiving end.

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Washington Post: Dark money’s deceptive power flows down to the states

Editorial Board

The center on Monday published a study of campaign money flows in Alaska, Arizona, California, Colorado, Maine and Massachusetts that found dark money infiltrating state and local politics. Looking at outside funds, raised and spent outside candidates’ organizations, the center found that in 2006, about three-fourths of campaign spending in these states was fully transparent, but in 2014 only about 29 percent was transparent. According to the study, “dark money surged in these states by 38 times between 2006 and 2014.” That is a huge and disturbing shift from sunlight to the shadows. If it is happening in these states, which are home to about 20 percent of the U.S. population, then it probably is happening elsewhere, too.

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Sedgewick County Post: GOP dismisses former governors as ‘liberal, dark-money group’

“It is hardly surprising that four former governors who presided over massive and needless growth in the size of state government would engage in this kind of political stunt,” the GOP said in a statement. “They joined the ranks of the ‘tax and spend’ crowd a long time ago.”

The group includes former Democratic governors John Carlin and Kathleen Sebelius, and former Republican governors Mike Hayden and Bill Graves. They announced an initiative last week to oppose conservative Republican candidates in this fall’s elections for the Kansas legislature.

The new group said it is asking for money “to help educate Kansas voters.”

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Atlantic: How Semi-Secret Spending Took Over Politics

Chisun Lee and Douglas Keith

Gray money can be a deliberate tactic to obscure the original source of campaign funding. In Los Angeles, a local PAC bearing the folksy name of the Parent Teacher Alliance in Support of Rodriguez, Galatzan, and Valdovic for School Board 2015 spent $2.3 million in the 2015 school board election. Its existence served to give a “local flavor” to the advertising, according to Richard Garcia, a spokesperson for the California Charter Schools Association, which created the PAC. Those funds came mostly from prominent mega-donors including billionaire Michael Bloomberg, an arrangement first reported by the Los Angeles Times. Bloomberg and other individual donors did not appear on the public disclosures filed by the Parent Teacher Alliance. Instead, their money went through the donor that was disclosed, the California Charter Schools Association Advocates.

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Supreme Court

Washington Post: Supreme Court again supports ‘ingratiation and access’ in politics

Robert Bauer

It would be natural to recoil at the outcome here. This is, after all, a case involving conduct the court describes as “distasteful.” How then to account for the unanimity of the outcome? One explanation is that the justices recognize that in addressing various conceptions of political corruption, the law has its limits. Trade-offs are inevitable: As Justice Stephen G. Breyer stated at argument, the line between accepted political and condemnable corrupt conduct “won’t be perfect,” and to prevent the abuse or misuse of laws that affect politics, government “will fail to catch some crooks.”

The decision in McDonnel l suggests that voters may have to take on more responsibility for catching the crooks — or voting them out of office.

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Wall Street Journal: Decision of the Year

Editorial Board

“In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event—counts as a quo,” writes the Chief.

If merely meeting with constituents or contacting other officials on their behalf is a crime, he adds, “Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.”

Self-styled public interest scolds will claim this opens the door to more corruption, but it’s more accurate to say the High Court is protecting against more arbitrary and politicized prosecutions. If routine obligations of elected government can be defined as official acts for the purposes of corruption, then any official can be vulnerable to prosecution for accepting any favor.

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More Soft Money Hard Law: Concerns about the McDonnell Case: A Hurdle for Public Corruption Prosecutions?

Bob Bauer

Once before a jury, these cases come complete with real personalities, convoluted fact patterns, cooperating witnesses, politicians and their staffs who have been careless in what they say and write, evasive behaviors, and regulators who dislike or distrust politicians’ interventions and take them almost by definition to be “pressure.” There is plenty for prosecutors to work with. Even with a jury instruction consistent with McDonnell standards, they will come away with more than a few victories in cases that involve apparent access-buying.

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Dangers of Disclosure

San Francisco Chronicle: Campaign to ID rich who try to hide political donations

Melody Gutierrez

Schur said she hopes outing those who secretly contributed against Prop. 30 in 2012 will pressure the wealthy donors to support efforts this year to extend the temporary taxes. Supporters of Prop. 30 are waiting to hear this week whether a ballot measure to extend personal income taxes on the state’s wealthiest residents will have enough valid signatures to make the November ballot.

“We are saying billionaires beware, we are watching what you are doing, and you won’t do this in secret,” Schur said. “We will out you, and let the public know what policies you are supporting.”

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Candidates and Campaigns

Washington Free Beacon: Bernie Sanders Gives No Indication That He Will Suspend Campaign

Madeleine Weast

“What we are trying to do is to address the major crises facing working families in this country and we are going to use all of the tools we can to do that,” Sanders responded. “We have some 1,900 delegates who are going to be coming to Philadelphia [for the convention]. Those delegates without exception are going to stand up and fight to make sure that the working class has a voice in this country, that government listens to them, that we end a corrupt campaign finance system. That’s what this campaign has been about and will continue to be about.”

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The States

Helena Independent Record: GOP governors group agrees to register campaign committee

Bobby Caina Calvan, Associated Press

Montana law requires groups spending money on Montana campaigns to register with Motl’s office and file monthly spending reports. Motl acknowledged a gray area in state law that he said could be interpreted as allowing federally registered committees to report less frequently under the schedule set by the Federal Election Commission.

Prompted by an AP report earlier this month about the pace of spending and fundraising in the Montana governor’s race, Motl sent a letter noting that the Republican Governors Association had not filed as a political committee under state law.

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