Daily Media Links 12/21: State attorneys general chill climate debate with government subpoenas, Texas ‘dark money’ regulation survives second court challenge from a 501(c)(4) group, and more…

Free Speech 

The Hill: State attorneys general chill climate debate with government subpoenas

By Patrick Morrisey

Over the past year, several state attorneys general have sought to subpoena from ExxonMobil and the Competitive Enterprise Institute, a non-profit think tank, millions of records relating to climate change. Among them are the attorneys general from New York, Massachusetts, and the U.S. Virgin Islands.

These attorneys general are not targeting false information intended solely to induce a commercial transaction. They have sought information on donations made to think tanks and advocacy groups. One subpoena included a demand for communications between ExxonMobil and a number of journalists…

Attorneys general have a duty to vigorously defend the First Amendment. Unfortunately, burdensome and far- reaching subpoenas are punishing companies with which some attorneys general disagree, and chilling debate on an issue of public importance.

As the United States Supreme Court has said, “free speech, thought, and discourse are … a foundation of our freedom.” If the government objects to speech, “the remedy to be applied is more speech, not enforced silence.”  

Washington Post: Texas AG: Lawyer speech code proposed by American Bar Association would violate the First Amendment

By Eugene Volokh

While decisions of the United States Supreme Court have concluded that an attorney’s free speech rights are circumscribed to some degree in the courtroom during a judicial proceeding and outside the courtroom when speaking about a pending case, Model Rule 8.4(g) extends far beyond the context of a judicial proceeding to restrict speech or conduct in any instance when it is “related to the practice of law” [including, among other things,] … [“]participating in bar association, business or social activities in connection with the practice of law.[“] Given the broad nature of this rule, a court could apply it to an attorney’s participation in a continuing legal education panel discussion, authoring a law review article, or informal conversations at a bar association event…

A court would likely conclude that the American Bar Association’s Model Rule of Professional Conduct 8.4(g), if adopted in Texas, would unconstitutionally restrict freedom of speech, free exercise of religion, and freedom of association for members of the State Bar. In addition, a court would likely conclude that it was overbroad and void for vagueness. 


Bloomberg BNA: FEC Drops Illegal Coordination Charges Against McGinty Campaign

By Kenneth P. Doyle

The Federal Election Commission has voted unanimously not to pursue allegations of illegal coordination against the campaign of Katie McGinty, the 2016 Democratic U.S. Senate nominee in Pennsylvania.

The FEC commissioners agreed to follow staff recommendations and find “no reason to believe” that McGinty’s campaign coordinated its activities with super political action committees and other outside campaign spending groups, according to documents released by the agency Dec. 16…

The Pennsylvania race became the most expensive U.S. Senate race in history. The total price tag was more than $177 million, including campaign money spent in both the primary and general election. That included nearly $125 million from outside groups not formally linked to the candidates.

The Pennsylvania GOP’s complaint to the FEC cited reported comments in Politico by McGinty’s campaign manager, former Pennsylvania Gov. Ed Rendell (D). Rendell was quoted as saying that EMILY’S List would spend far more than $1 million on the Pennyslvania Senate primary race, and that outside groups, including LCV, would need to spend a total of at least $3.5 million on the primary. 

Political Parties  

The Guardian: The Clintons turned the Democratic party over to donors. Can it recover?

By Jill Abramson

Hillary Clinton chose a bitterly ironic party location to thank her massive donor network last week: the grand ballroom of The Plaza, once owned by Donald Trump.

The people gathered for the glum get-together, including hedge fund managers and media titans, had built the most formidable fundraising network ever seen in American politics. They pumped more than $4bn into various Clinton campaigns and related political and charitable groups over four decades. Many of them have been cutting huge checks since Bill Clinton’s first presidential campaign in 1992.

In 2016, they expected their $1.2bn infusion to catapult Hillary Clinton back into the White House and were astonished, like the rest of the country’s elite, to see all that money go down the tubes…

But Bill and Hillary Clinton are the people responsible for turning the Democratic party into the party of Wall Street and their glitzy friends. During his time in office, Bill Clinton did little to change a campaign finance system that has always been fundamentally at odds with the party’s egalitarian message.

Independent Groups

American Spectator: Larry the Loser – And Would-Be Briber

By Scott McKay

There was Lessig’s disastrous foray into campaign finance in 2014; his Mayday PAC raised and spent millions on House and Senate candidates on both sides of the aisle who agreed to an agenda limiting “money and influence” from corporate lobbyists and other nefarious actors in the political process and won practically no races at all. Politico mocked Lessig in a piece entitled “How To Waste $10 Million,” after that year’s cycle ended.

Then, undaunted by his failure, Lessig commenced a presidential bid of his own in 2015… He even managed to parlay about a month’s worth of media whoring into a pair of columns at the New Yorker about the experience, patting himself on the back for his efforts to expose the corrupt campaign finance system after he raised a million dollars as a presidential candidate for a month…

At 0-for-2 in efforts at relevance outside of Cambridge, Lessig then launched his most recent scheme – tampering with the Electoral College…

Lessig formed an organization called The Electors Trust to facilitate “pro bono legal advice” for those GOP electors who agreed to violate their pledge and named a mid-sized Boston law firm, Durie Tangri, as the provider of that counsel.


San Antonio Express-News: Texas ‘dark money’ regulation survives second court challenge from a 501(c)(4) group

By David Saleh Rauf

A contentious “dark money” regulation approved by Texas campaign finance regulators has survived a second court challenge claiming the rule could thwart politically active nonprofits from influencing elections.

State District Judge Tim Sulak has tossed a lawsuit from the Texas Home School Coalition Association, a 501(c)(4) organization that has spent hundreds of thousands of dollars on independent political expenditures to benefit Republican candidates.

The home school group claimed that the Texas Ethics Commission’s rule, which sets parameters for when a politically active nonprofit is required to start disclosing anonymous donors, was unconstitutional and could “chill” its political speech.

Politically active nonprofits are allowed to spend money in an election independent of candidates, and federal law does not require disclosure of who is funding the efforts. However, Texas campaign finance regulators have said that a 501(c)(4) organization and its donors can be regulated like a political action committee, which is required to reveal donors.

The Media

Sacramento Bee: Fake news Concerns could lead to assault on free speech

By George Runner

Trump’s unconventional win over Clinton is worth studying; however, blaming websites that publish hoaxes like “Pizzagate” and satirical information is shortsighted. What’s worse, it could lead to an assault on our First Amendment rights. Some politicians have seized the moment by calling for government regulations of such websites…

Yes, there are limits to free speech – but our courts have already recognized this reality through the “imminent lawless action” doctrine to prevent people from spreading disinformation to cause chaos. If we further limit free speech to include satire and salacious news, government could take the role of determining what types of satire are acceptable.

That would be a dangerous precedent.

Government could then label alternative news sources or critical outlets as propaganda in an effort to discredit them. Lawmakers who would love nothing more than to punish the press would then have the power to do so.

Christian Science Monitor: Pulse victims lawsuit: Did social media provide ‘material support’ for terrorism?

By Steven Porter

Lawyers representing the families of three people killed in last summer’s mass shooting at the Pulse nightclub in Orlando, Fla., filed suit Monday against Facebook, Twitter, and Google, accusing the three companies of violating US anti-terrorism law by failing to halt terrorist recruiters on their social media platforms…

Professor Addicott says the case boils down to a First Amendment dilemma, and suggests a free society must defend its principles of free speech and reject the lawsuit’s “novel” take on the law: “It’s a battle between increased security and civil liberties,” he says, arguing in favor of the latter.

Perhaps the most pronounced legal hurdle for the lawsuit comes in Section 230 of the Communications Decency Act, which shields “interactive computer services” from liability for the content they transmit.  

The States

Huffington Post: The Future Of Campaign Finance Reform Is At The State And Local Level

By Paul Blumenthal

Portland’s passage of campaign finance reform legislation came on the heels of similar victories in South Dakota and Missouri, as well as in Berkeley, California, and Howard County, Maryland. These successes showcase the broad bipartisan support across the country for campaign finance reform that boosts the power of small donors to counter the dominance of big money.

These wins, while big in their own right, were supposed to be overshadowed by changes at the Supreme Court level. It’s likely that the election of Donald Trump will have monumental consequences for the issue of money in politics.

Democratic presidential nominee Hillary Clinton was poised to appoint a Supreme Court justice who would have been skeptical of the court’s recent push toward complete deregulation of campaign finance. People who support reform and putting limits on big money in politics were already plotting bringing forward cases that could overturn past decisions – decisions that had opened the door to big, corporate money in politics and restricted how states or local governments could structure public financing systems…

So reformers rest their hopes where they can: at the state and local levels. 

Winston-Salem Journal: How new state laws restrict the powers of North Carolina’s next governor

By Wesley Young

Legislation passed by the North Carolina General Assembly limiting the governor’s powers comes about through the passage of two bills: Senate Bill 4 and House Bill 17.

The main changes under SB4: The functions of elections, campaign finance, lobbying and ethics are consolidated into one state agency called the Bipartisan State Board of Elections and Ethics Enforcement. The board will have eight members, half from each major party. The governor will appoint four members and the General Assembly will appoint the other four.

At the county level, local elections boards will have four members, half from each major party.

These changes diminish the governor’s power because under the current system, the governor’s party controls a majority on the state and county elections boards. For instance, the Forsyth County Board of Elections now has three members – two Republicans and one Democrat – and without the change would have switched over to two Democrats and one Republican with the election of Roy Cooper as governor.

Riverside Press-Enterprise: This map tells you who broke California’s campaign finance rules

By Jeff Horseman

The Fair Political Practices Commission, the state’s campaign finance watchdog, unveiled this week a “heat map” showing violations broken down by county for 2016. Click on a county and you’ll get information on who broke what rules and what it cost them…

Each case includes a link with more specific details about the infractions.

This year, the FPPC successfully prosecuted 311 cases throughout the state resulting in $894,257 in penalties, the commission said in a news release.

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