Daily Media Links 8/8: In Defense of ‘Dark Money,’ Jury overturns convictions in Anne Arundel robocall case, and more…


CCP Asks Supreme Court to Refute “Welcome Restraint” Speech Doctrine in Trump “Travel Ban” Case

The United States Court of Appeals for the Fourth Circuit reviewed campaign statements to infer the motivations behind the “travel ban,” despite the fact that doing so was unnecessary. Making matters worse, the majority brushed off the chilling effect this would create as a “welcome restraint” on candidate speech.

As the brief filed by CCP and PPLI explains, the Supreme Court has never directed lower courts to review campaign statements in similar contexts. Moreover, candidate speech generally enjoys a high level of protection due to its importance to voters. For example, controversial, offensive, and false speech is protected in campaigns.

“The Supreme Court should reiterate its longstanding protection of robust campaign speech by rejecting the Fourth Circuit’s analysis,” said CCP Legal Director Allen Dickerson. “The majority’s hopeful prediction that this case is ‘highly unique’ and unlikely to apply in other circumstances ignores the contentious reality of political campaigns. The potential applications of the ‘welcome restraint’ analysis extend far broader than the majority realizes,” Dickerson added. 


Giving Taxpayer Dollars to Local D.C. Politicians is a Bad Idea

By Joe Albanese

D.C. Councilmember and Chair Pro Tempore Kenyan McDuffie took to the pages of The Washington Post to advocate for taxpayer funding for local political campaigns. Under this system, candidates for Council (and a handful of additional races) who agree to only accept small-dollar contributions and completely forgo donations from PACs would receive $5 of government (read: taxpayer) funding for every $1 they receive in voluntary support from D.C. residents.

McDuffie calls this proposal an investment in democracy and, indeed, supporters of tax-financing often claim that such a system would achieve many lofty, transformative goals. CCP Attorney Tyler Martinez testified before the D.C. Council in June casting doubt on this optimism – including for reasons outlined below…

The benefits of tax-financing, at least as described by proponents like McDuffie, do not materialize in practice. Meanwhile, the costs – wasting public money in corruption scandals and forcing taxpayers to subsidize politicians they find objectionable or even offensive – are considerable. Governments should not try to claim a bigger role in the political process at the expense of voluntary actors.

Independent Groups

American Prospect: In Defense of ‘Dark Money’

By Nan Aron and Abby Levine

For decades, social-welfare nonprofits have been used responsibly by the AARP, the National Organization for Women, the American Civil Liberties Union, the Sierra Club, the Human Rights Campaign, and thousands of others.

The 501(c)(4)’s value lies in its almost unlimited ability to use a variety of advocacy strategies, mixing public education with lobbying and, sometimes, partisan electoral work. While many 501(c)(4)s never get involved in politics at all, it is the combination of two components-lobbying and the ability to hold politicians accountable at the ballot box-that bolsters these organizations’ influence, particularly in policymaking…

They provide a forum for individuals to come together and speak out collectively on the issues that matter to them most. While sometimes that may mean taking a political stance on the issues of the day, 501(c)(4)s focus on social welfare, not political activities. These organizations got a bad rap after the IRS scandal, but many of these groups have also come together to further social welfare and to take steps to prevent future abuses. A vibrant 501(c)(4) nonprofit sector is indispensable, and anyone concerned with bolstering the progressive movement should consider devoting more resources to these organizations.

Political Parties

Center for Public Integrity: Comeback for ‘legalized money laundering’ in party politics?

By Carrie Levine

Top donors spent the 2016 election cycle legally writing six-figure checks to so-called joint fundraising committees – committees that can dole their contributions out to multiple allies, notably including state political parties.

But rather than keep all the cash, the state parties have been quickly steering the money to the national parties, taking advantage of their ability to transfer unlimited cash to their national affiliates.

The joint fundraising vehicles aren’t new, but the Supreme Court’s 2014 decision to eliminate some obscure but important campaign contribution limits in McCutcheon v. Federal Election Commission had the effect of supercharging them…

The point of campaign limits is to avoid corruption, [Jim Bopp] says, and parties aren’t public officials. “What is different is a particular donor can give to more state parties than those they were limited to in the past,” he says, which was “the whole purpose and point of the case.”

There are some upsides to this brave new money era, political scientists allow-notably the rebuilding of political parties that had atrophied under the old rules.

The Courts

Annapolis Capital Gazette: Jury overturns convictions in Anne Arundel robocall case

By Amanda Yeager

A jury on Thursday overturned the conviction of two political operatives found guilty this year of violating state election laws with a robocall sent days before the 2014 Anne Arundel County Council race.

Dennis Fusaro, campaign manager for Republican Councilman Michael Peroutka in 2014, and Stephen Waters, a political strategist from Virginia, were exonerated of misdemeanor charges of violating and conspiring to violate the authority line requirements of Maryland election laws…

John Garza, an attorney for the defense, lauded the jury’s decision Thursday as a victory for free speech, and anonymous speech in particular. He pointed out that the authors of the Federalist papers, which encouraged the signing of the Constitution, had published their essays under a pseudonym.

“This jury found that anonymous speech is going to be protected and the state of Maryland is not going to be able to shut down free, anonymous speech – that people can send robocalls, Facebook pages, send blast emails to their friends,” Garza said. “If you want to speak about matters of public concern, you’re not going to get charged in a criminal case.”

Pillar of Law: Maryland Jury Says “Not Guilty” in Pillar Free Speech Case

“Maryland’s campaign finance laws are an indecipherable, unconstitutional mess,” said Benjamin Barr, Pillar President and co-author of the institute’s briefs. “Particularly in this case, the prosecutors claimed Fusaro and Waters needed to include a disclaimer, but refused to disclose just what that disclaimer was supposed to say.”

A judge in a previous bench trial found Fusaro and Waters guilty of misdemeanors and sentenced them each to 30 days in jail and $1,000 fines. This second trial afforded a jury.

“You cannot just charge two citizens for speaking, say ‘disclosure,’ and send them to jail,” said Stephen Klein, Pillar attorney and co-author of the briefs. “This case amounted to nothing more than censorship. The jury got it right, and saw the corrupt result of what far too many prosecutors, professors and pundits call ‘campaign finance reform.'”…

“We were honored to join a distinguished legal team and vindicate free speech,” said Barr. “Our only concern is that these laws will remain on the books. While Fusaro and Waters are free, prosecutors still have the power to try and punish other citizens for their speech, and the next jury might fall for the prosecutors’ ploy.”

NMPolitics.net: Why the Rio Grande Foundation is suing Santa Fe

By Paul J. Gessing

Last year, the Rio Grande Foundation, the public policy think tank I lead, worked to educate Santa Fe voters on the soda tax that went down to defeat earlier this year…
Literally the same day that we announced our public education campaign, the Santa Fe city attorney notified us that if we spent more than $250 on certain advertising tools that so much as “refers to a clearly identifiable ballot measure within 60 days” of it being on the ballot, we would be compelled to hand over a list of our donors for publication on a government database…

Ultimately, as the media reported, while we dutifully kept our outright expenditures below $250 as prescribed by law, the Rio Grande Foundation was deemed to be in violation of the law due to the aforementioned video and website. These were “in-kind” donations to the Foundation, but because their value clearly exceeded $250, we were deemed to be violating the law…
We’re asking the City of Santa Fe to change the law so that future nonprofits, whatever their beliefs or political outlook, can engage legally in a conversation over pressing public issues without handing over their donor lists.


New York Times: Political Donors Put Their Money Where the Memes Are

By Kevin Roose

Imagine you’re a millionaire or billionaire with strong political views and a desire to spread those views to the masses. Do you start a think tank in Washington? Funnel millions to a shadowy “super PAC”? Bankroll the campaign of an up-and-coming politician?

For a growing number of deep-pocketed political donors, the answer is much more contemporary: Invest in internet virality.

As TV, radio and newspapers give way to the megaphonic power of social media, today’s donor class is throwing its weight behind a new group of partisan organizations that specialize in creating catchy, highly shareable messages for Facebook, Twitter and other social platforms. Viral media expertise is emerging as a crucial skill for political operatives, and as donors look to replicate the success of the social media sloganeers who helped lift President Trump to victory, they’re seeking out talented meme makers…

Donor funding is no guarantee of success for partisan publishers – as with all viral internet content, there are limits to what money can buy. But given the outcome of the presidential election, Democrats may have no other choice than to enter the meme wars.

The Media

Reason: Thanks, Obama! Trump Is Expanding Your Effort to Imprison Leakers!

By Scott Shackford

Attorney General Jeff Sessions announced [Friday] that the Department of Justice has tripled the number of investigations into unauthorized leaks of government information and will be examining their rules for subpoenaing journalists.

The press conference lacked details-after complaining about leakers and saying that the power of the press to report is not unlimited, Sessions declined to answer any reporters’ questions. But Sessions and his department clearly want both leakers and journalists to know that they are actively trying to hunt down sources of information. Sessions said he fully intends to prosecute any he can find.

In other words, Sessions is continuing a war that began before he took office. Nothing he said today is all that different from how the federal government under President Barack Obama treated unauthorized leaks other than the expansion of the effort…

Bringing up Obama here isn’t “Whataboutism.” It’s about recognizing that we’ve been on this slippery slide for years. The government has been demanding the authority to decide what information the public is allowed to know, and it frequently defaults to secrecy instead of openness. Sessions and Trump are being more open and aggressive about attitudes that already existed.

The States

Forbes: Fighting Another Progressive Attack On The First Amendment

By George Leef

The tax that funds the vouchers is levied on all Seattle property owners. It takes money from them and, through the medium of the vouchers, gives it to political candidates – candidates with whom they may strongly disagree…

The complaint in Elster v. City of Seattle seeks declaratory judgment and injunctive relief against enforcement of the law. Its key argument is that under the Supreme Court’s First Amendment jurisprudence, government may not forcibly extract money from individuals and then use it to provide monetary support for the speech of others.

That problem has arisen in a number of cases relating to compulsory union dues that help to fund political speech by the union that the worker disagrees with. In Knox v. Service Employees International Union (2012), the Court held that any time compulsory subsidies are given to private speech, strict First Amendment scrutiny is necessary. (The hostility between the First Amendment and forced speech through union dues was also the key element in the Court’s 1988 decision in Beck v. Communication Workers of America.) 

Columbus Dispatch: Reveal Issue 2 donors’ names

By Editorial Board

Ohioans Against the Deceptive Rx Ballot Issue received $15.8 million in contributions from a nonprofit, limited-liability company of the same name, campaign-finance filings show. That LLC disclosed a single donor: the Pharmaceutical Research and Manufacturers of America (PhRMA). That’s the international trade association representing drug makers.

But who, exactly, within the giant PhRMA gave that money? Which drug companies? Voters weighing the merits of the ballot issue should know, but they can’t, because federal law allows LLCs, such as the anti-Issue 2 group, and nonprofits organized under Section 501(c) of the tax code, such as PhRMA, to support political causes without naming individual donors…

LLCs such as the anti-Issue 2 group can take the secrecy a step further, because laws in many states allow them to be formed with minimal information about their founders or purpose – often to make a single large donation, after which they’re dissolved. Indeed, Issue 2 backers have filed a complaint with the Ohio Elections Commission alleging Issue 2 opponents engaged in an illegal scheme to avoid Ohio’s campaign-finance disclosure laws.

The Atlantic: The Campus-Speech Debate Spends Summer Break in Statehouses

By Conor Friedersdorf

Tennessee, Utah, and Virginia have all passed campus-speech bills, with the Virginia bill garnering broad bipartisan support and a Democratic governor’s signature. And in North Carolina, a campus-speech bill was just approved by the state legislature and passed into law when a Democratic governor declined to exercise his veto.

That law, modeled on draft legislation created by the Goldwater Institute, a conservative think tank, may portend more of the same. “The North Carolina Restore Campus Free Speech Act accomplishes the lion’s share of what the Goldwater model proposed, including important steps forward on discipline for shout-downs,” Stanley Kurtz argues at National Review. “Goldwater-based bills are under consideration in several states, with more likely to follow next year. Any state bill can be strengthened in a second legislative round if universities continue to abuse their powers.”…

Indeed, bills based on the Goldwater Institute model, or very similar to it, are under consideration, or likely to be considered, in states including Arizona, Colorado, Illinois, Louisianna, Michigan, and Texas. Variations and amendments could make the difference between a law that would do more harm than good and vice versa.

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