Daily Media Links 3/8: Multnomah County political spending limits unconstitutional, judge rules, Phoenix voters may get to weigh in on ‘dark money’ donations, and more…

In the News

Washington Examiner: Don’t give the IRS personal information it doesn’t need

By Bradley A. Smith

For many years now, the IRS has required nonprofits to report their major donors to the IRS on what is known as Form 990, Schedule B. Recognizing the sensitive nature of this information, however, charitable organizations are not required to make this information public, and the IRS is prohibited by law from making it public.

Unfortunately, the IRS is not always successful at keeping the information secret…

Moreover, this information can be used improperly within the IRS. Certainly, most IRS employees are fair and responsible, but it only takes a handful of bad apples to use this information to harass citizens for the views and causes supported by their charitable giving.

The form is also an administrative burden for charities. The Institute for Free Speech estimates that Schedule B repeal would save charities and other nonprofits an estimated $63 million in costs spent complying with the dictates of the form…

Rep. Peter Roskam, R-Ill., has taken a first step to ending abuses of privacy by introducing H.R. 4916, the Preventing IRS Abuse and Protecting Free Speech Act, which would reverse current law and prohibit the IRS from collecting this information. This legislation passed the House in the last Congress, but was not taken up in the Senate. Its best chance to pass this year will be through its inclusion in the omnibus budget bill currently being negotiated in both chambers.

Orlando Sentinel: Probable cause is not a bludgeon for the thought police

By David Keating and Thomas Wheatley

When former U.S. Marine Corps officer Fane Lozman approached the lectern during a Riviera Beach City Council meeting to air his grievances as a citizen, he didn’t suspect he’d be hauled out in handcuffs.

Yet only a few seconds into his speech, that’s exactly what happened. His arrest triggered a First Amendment retaliation lawsuit now before the U.S. Supreme Court, which heard arguments last week. The case has important implications for citizen activists and journalists alike…

Now the court will decide whether probable cause for an arrest can stop such a retaliation claim.

For the sake of the freedoms of speech and press, the answer must be no. Instead, the court should consider the presence of probable cause holistically without automatically extinguishing a First Amendment claim.

Granting probable cause such weight gives government a powerful tool to punish critics. With so many laws on the books, it is often easy to find probable cause for an arrest…

Of course, none of this is to say that probable cause should never defeat a First Amendment retaliation claim. But it shouldn’t disqualify it. Let’s hope the court recognizes this and sides with Lozman.

SCOTUSblog: Thursday round-up

By Edith Roberts

In an op-ed for the Orlando Sentinel, David Keating and Thomas Wheatley weigh in on Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a retaliatory-arrest claim, arguing that “the court should consider the presence of probable cause holistically without automatically extinguishing a First Amendment claim.”

Bloomberg BNA (via Election Law Blog): Edwards Case Looms Over Payments to Women Alleging Trump Links

By Ken Doyle

Bradley Smith, a former Republican commissioner on the FEC who now heads the nonprofit Institute for Free Speech, said in a phone interview that it would be “very difficult” to show the payments to women linked to Trump were related to the presidential campaign. Smith noted that Trump had a long history before his candidacy trying to shape his news coverage as a public figure.

Smith said it was likely the FEC would dismiss the Common Cause complaints based on responses from Cohen and others.

Adav Noti, a former FEC staff attorney now with the nonprofit Campaign Legal Center, said the timing of payments to Clifford and McDougal raised serious legal questions. He added, however, that “we don’t know nearly enough facts” to determine whether the campaign finance law was violated.

Whether the FEC will investigate and determine those facts is doubtful, Noti said.

Internet Speech Regulation

Center for Responsive Politics: Low transparency, low regulation online political ads skyrocket

By Megan Janetsky

As fears of Russia meddling continue and midterm spending is expected to reach record levels, politicians from both parties are debating ways to fill what Tyler Cole, legislative director for the advocacy organization Issue One, called “huge holes in our disclosure system.”

The Federal Election Commission (FEC) is expected to consider a proposal Thursday that would do just that…

On March 8, the FEC will consider a proposal for new regulations in a public hearing…

The move follows similar legislative attempts by Senators Amy Klobuchar (D-Minn.), Mark Warner (D-Va.) and John McCain (R-Ariz.), who introduced the Honest Ads Act in October 2017.

The bill, which also had a companion in the House, would require digital platforms like Google, Facebook and Twitter to release information about the purchasers and targets of online political ads, and require those ads to be made publicly available.

The idea has also gained traction in state legislatures. Recently, the Vermont State House advanced a bill that would require state and local buyers using Facebook and Twitter to identify who they are and who they’re supporting in their ads.

Free Speech

New York Times: We’re All Fascists Now

By Bari Weiss

In advance of the lecture, nine student groups, among them the Portland National Lawyers Guild, the Minority Law Student Association, the Women’s Law Caucus, the Jewish Law Society and the school’s Young Democratic Socialists of America chapter sent a letter protesting the appearance by this “known fascist.”

The letter added that her invitation amounted to an “act of aggression and violence” and went on to offer a curious definition of free speech: “Freedom of speech is certainly an important tenet to a free, healthy society, but that freedom stops when it has a negative and violent impact on other individuals.”

Yes, these future lawyers believe that free speech is acceptable only when it doesn’t offend them. Which is to say, they don’t believe in it at all…

At this point, such incidents have become so routine that it’s tempting to wave them off.

We shouldn’t. What happened to Ms. Sommers on Monday is a telling example of a wider phenomenon that reaches well beyond the confines of campus. 

FEC

Providence Journal: R.I. GOP chairman files FEC complaint over Raimondo fundraising deal

By Katherine Gregg

State GOP Chairman Brandon Bell has filed a complaint with the Federal Election Commission about the fundraising agreement that Gov. Gina Raimondo’s reelection team struck with state employee Patrick Ward – the chairman, at the time, of the Providence Democratic City Committee – to provide another outlet for her maxed-out donors to give money…

Raimondo’s Washington, D.C., campaign lawyer, Jonathan Berkon, has said the pact is not a “joint-fundraising agreement” that in any way “enlarge(s) the Providence Democratic City Committee’s ability to raise or spend funds.” …

But Bell, in a news release put out Wednesday morning, said the agreement is, in fact, a joint-fundraising agreement out of compliance with the rules for such arrangements in 11 C.F.R. § 102.17.

In the complaint he sent to the FEC on March 3, he listed the alleged violations: “The Raimondo-Ward agreement does not satisfy the requirements for engaging in a federal joint fundraising activity. For example, it did not establish a fundraising representative either by establishing a separate political committee to serve as the joint fundraising committee or by selecting an additional participating committee registered with the FEC.

“Also, it did not state an allocation formula providing the amount of percentage of each contribution received would be distributed to each participant. The federal requirements for joint fundraising activity apply to all committees even if they are not registered with the FEC.”

New York Daily News: Trump’s alleged payoff for porn star’s silence warrants a Federal Election Commission investigation

By Paul S. Ryan

It’s now almost beyond dispute that Donald Trump was involved in negotiating a nondisclosure agreement with Daniels just before he was elected President. Between Trump lawyer Michael Cohen’s admission that he “facilitated the payment” of hush money to Daniels and Daniels’ new lawsuit alleging Trump’s direct involvement, the facts point to the necessity for Federal Election Commission and Department of Justice investigations of this matter.

That’s why in January Common Cause filed complaints with the FEC and DOJ accusing President Trump and his campaign of violating federal campaign finance law by hiding the payment to Daniels and potentially receiving an illegal in-kind contribution.

The complaints make a compelling case that the $130,000 payment to Daniels was made to influence the presidential election; that makes it a campaign expenditure. Daniels herself admits this in her new lawsuit, claiming Trump agreed to pay her “to avoid her telling the truth, thus helping to ensure that he won the Presidential Election.” …

Daniels’ new lawsuit claims the nondisclosure agreement was never signed by Trump, and therefore is invalid. By not signing the agreement, Trump could have been trying to avoid prosecution for a knowing and willful violation of federal campaign finance law.

Independent Groups

CNBC: Trump to reportedly dine with key figures in America First Policies, a secretive pro-Trump nonprofit group

By Christina Wilkie

President Donald Trump will reportedly dine Wednesday night with officials from the pro-Trump nonprofit America First Policies, just one week after a group representative told CNBC that it maintains “very clear lines and high walls” intended to keep its work separate from the White House…

Following the publication of CNBC’s report, the nonprofit watchdog group Common Cause filed complaints with the Federal Election Commission and the Department of Justice, both alleging that America First Policies had violated campaign finance laws that require groups to disclose any money they spend on elections or campaigns.

“There’s ample reason to believe that President Trump and his outside groups are illegally coordinating their fundraising and other activities, including flagrant violations of the soft money rules,” said Stephen Spaulding, a former FEC special counsel who is now with Common Cause…

By attending a small, private dinner with key figures at American First Policies, “Trump is saying, in effect, that America First Policies has the White House’s blessing,” said Brendan Fischer, an election law expert at the nonprofit Campaign Legal Center.

Fundraising

Center for Public Integrity: Are congressional Democrats lying their way to riches?

By Dave Levinthal

Last month, House Minority Leader Nancy Pelosi sent supporters an email. Subject line: “NOT asking you for money.”

Open the email and Pelosi scolds Republicans for “playing politics with our national security.” She urges you to click a link if you agree. The link leads to a “Russia investigation survey,” which concludes with Pelosi doing exactly what she said wouldn’t do.

She asks you for money.

“Will you pitch in $3 (or more!) to help the DCCC support Democratic House candidates every step of the way to victory and flip the House in 2018?” Click, and a donation page pops up urging readers to “take the next step” and donate $15, or $100, or $1,000, or more…

No other national political party committee – Republican and Democrat – so overtly serves such bogus fare. Save for a couple of Democratic Senatorial Campaign Committee messages of a similar sort, DCCC all but owns a monopoly on communications that begin with a demonstrable lie.

Candidates and Campaigns

The Atlantic: The Radicalization of Richard Painter

By Elaine Godfrey

Painter, a longtime Republican who teaches at the University of Minnesota Law School, announced Wednesday that he’s launching an exploratory committee for the Senate seat currently held by Tina Smith, who was appointed to the Senate after Al Franken resigned amid allegations of sexual misconduct. “I’ve been concerned about ethics in government for a long time,” Painter told me in an interview Wednesday, ahead of the announcement. “And the problems we’ve had under President Trump are only indicative of the longer-term problem of the erosion of public office and government.” That erosion, Painter said, stems from the outsize role of money in politics, which was exacerbated by the Supreme Court’s Citizens United decision in 2010…

Painter and Eisen, who was chief ethics lawyer in the Obama administration, are now board chairs at the nonprofit government-watchdog group Citizens for Responsibility and Ethics in Washington, which filed multiple lawsuits against Trump in early 2017 for failing to place his assets in a blind trust. 

The States

Oregonian: Multnomah County political spending limits unconstitutional, judge rules

By Gordon R. Friedman

Multnomah County’s voter-approved limits on campaign contributions are an unconstitutional infringement on free speech, a county judge ruled Tuesday. 

Judge Eric Bloch ruled that the county and its voters cannot cap campaign contributions to candidates for county office at $500 per donor, force disclosure of the largest contributors to political mailers, or limit other types of spending. The limits are “impermissible” under the free speech guarantees within the Oregon Constitution, Bloch wrote, citing a related Oregon Supreme Court opinion.

His ruling falls in line with previous decisions by the state high court that tossed out limits on political spending as unconstitutional…

Dan Meek, an attorney representing several supporters of the spending limits, said they will appeal Bloch’s decision. He said he believes the decision was “very unusual” in part because it struck down a provision mandating disclosure of political spending, which other states have successfully adopted.

“We think we have an excellent argument on appeal,” Meek said.

Opponents to the now-overturned limits include the Portland Business Alliance, Taxpayer Association of Oregon, Portland Metropolitan Association of Realtors, and Oregon Business and Industry.

Arizona Republic: Phoenix voters may get to weigh in on ‘dark money’ donations

By Jessica Boehm

Mayor Greg Stanton and council members Kate Gallego and Debra Stark requested city staff to draft an amendment to the city’s charter that requires political non-profits to disclose the sources of “major contributions used to influence city elections.” …

The council voted 6-3 to move forward with exploring a charter change. The drafted amendment will have to come back to the council for a final vote and then must win approval from Phoenix voters…

Councilman Sal DiCiccio has been targeted by “dark money” groups before – “I’ve probably been the biggest victim here of all,” he said – but he still opposed disclosure.

“They have a right to oppose me without having to disclose who they are,” DiCiccio said. “They have a right to do those things and they have a right to be anonymous if they want to be. That’s what America is about.”

DiCiccio joined Vice Mayor Laura Pastor and Councilman Jim Waring in opposing the request…

In response to Tempe’s attempt to force campaign disclosures, state Rep. Vince Leach, R-Tucson, proposed statewide legislation that would make Tempe’s enforcement of the measure impossible.

House Bill 2153 would bar cities, counties and the state from requiring non-profits to disclose their donors. The bill passed the House and is awaiting action in the Senate.

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