Daily Media Links 6/12: Will the Supreme Court’s Understanding of the First Amendment Thwart Laws Aimed at Limiting Foreign Influence in U.S. Elections?, Publishers stop Facebook ad spending over policy that treats publishers as political advertisers, and more…

In the News

Election Law Blog: “Hidden Super-PAC Contributors Win Round as Court Upholds Secrecy”

By Rick Hasen

 Bloomberg BNA:

A federal court upheld the Federal Election Commission’s dismissal of disclosure charges involving two wealthy contributors who allegedly funneled $14 million to super-political action committees through obscure companies.

The FEC’s three Republican commissioners, who voted to dismiss the charges, exercised permissible discretion in “an issue of first impression” following the Supreme Court’s 2010 decision in Citizens United v. FEC, ruled Judge Trevor McFadden of the U.S. District Court for the District of Columbia. The judge accepted the Republican commissioners’ argument that the rules for such contributions were uncertain and a new legal standard should be established going forward…

The three Democratic FEC commissioners said longstanding rules barring “straw donations” applied to campaign money funneled through a company… 

The judge’s decision to uphold the Republican commissioners’ view drew praise from David Keating, president of the nonprofit Institute for Free Speech, which criticizes campaign regulation.

“It was the right decision,” Keating said in a phone interview, adding that the FEC should provide “formal guidance” going forward about the legal standard for straw donations. Such guidance would require FEC Democrats and Republicans to agree on an approach.

The judge’s decision was faulted by Paul Seamus Ryan, a lawyer with the nonprofit Common Cause, which supports strong disclosure rules. On Twitter, Ryan noted that McFadden is a judge appointed by President Donald Trump and said his ruling bent “over backwards … to let campaign finance law violators off the hook for laundering millions of dollars into our elections.”

New from the Institute for Free Speech

Connecticut Legislators Challenge Censorship of Campaign Ads

For voters, what information about legislative candidates could be more important than knowing their views on the governor’s key policies? Yet the state of Connecticut has fined two General Assembly members simply for mentioning the governor in their campaign ads. Now they are suing the State Elections Enforcement Commission (SEEC) for violating their First Amendment rights, with the help of the Institute for Free Speech.

“Just as candidates for Congress must be able to discuss the president, candidates for state legislature must be able to discuss the governor. Yet Connecticut law prevents candidates for the General Assembly from criticizing the governor’s policies in ads unless they first secure the approval and funding of one of the governor’s opponents. This policy effectively bans candidates from speaking to voters about one of the most important responsibilities of the office they seek to hold – checking the power of the executive,” said Institute for Free Speech Legal Director Allen Dickerson.

Joe Markley, a state senator, and Rob Sampson, a state representative, were ensnared by the law after they decided to split the costs on a series of standard campaign mailers highlighting their achievements in office. The mailers promoted Markley and Sampson as opponents of Governor Dannel Malloy’s policies on taxes and government spending. Two additional ads by Sampson also mentioned Malloy’s policies…

Sampson’s opponent in the election filed a complaint with the State Elections Enforcement Commission alleging that these ads violated state campaign finance laws. The SEEC agreed…

In order for the ads to be legal, the SEEC believes the governor’s opponent would have had to approve and share the costs of the ads.

To read more about the case, click here.

Administrative Appeal from Final Decision of the State Elections Enforcement Commission

Appellants deny that the communication was a joint expenditure to defeat Governor Malloy, and therefore deny that its costs must be shared within the meaning of CGS § 9-616. 

Appellants assert that any prohibitions restricting any reference in a legislative campaign to a sitting governor or his policies violates the Separation of Powers clause of the Connecticut Constitution, which bestows upon the legislative branch a “separate magistracy” from the executive department. Conn Const. art II. 

Appellants also claim that any restriction on the content of their political communications violate the First Amendment to the United States Constitution…

Appellants Markley and Sampson have each been found to have violated state election laws, to the detriment of their reputations. 

Appellant Markley was fined $2,000 for two such violations. 

Appellant Sampson was fined $5,000 for five such violations. 

The Commission application of applicable laws and regulations is unconstitutional and will harm future candidates by restricting or chilling free political speech, and association.

Event

Cato: NAACP v. Alabama after 60 Years: Should Associational Privacy Still Be Protected by the Constitution?

Featuring Bradley Smith, Chairman and Founder, Institute for Free Speech and Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School, Capital University; Lawrence Norton, former General Counsel, Federal Election Commission; moderated by John Samples, Vice President, Cato Institute.

Sixty years ago, the United States Supreme Court decided the landmark case of NAACP v. Alabama. In 1956, as part of the civil rights struggle, the state of Alabama sought the membership lists of the NAACP chapter in that state. The Court ruled against the state and discerned a “vital relationship between freedom to associate and privacy in one’s associations.” The decision remains a high point from the civil rights era. However, many now deny the Court’s assertion that a broad right to privacy offers a vital protection for the freedom to associate and to speak.

Since the decision, the Court has placed few limits on government’s power to mandate disclosure of political activities and associations. As the new online era of speech dawns, the principles at stake in NAACP v. Alabama remain at the center of public debates. Is the right to associational privacy recognized in NAACP v. Alabama still good law? Or should the Court reconsider the tie between privacy and association? Please join us for a vigorous debate that takes this important anniversary as a starting point for our common future.

Date: June 28, 2018

Time: 12:00 PM to 1:30 PM EDT

Location: Cato Institute

Register here

Supreme Court

Just Security: Will the Supreme Court’s Understanding of the First Amendment Thwart Laws Aimed at Limiting Foreign Influence in U.S. Elections?

By Richard L. Hasen

In this post, I want to call attention to perhaps the greatest impediment to effective limits on foreign influence on our elections: the United States Supreme Court…

[I]t is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban. For example, a Russian ad promoting a Black Lives Matter rally, but not mentioning or showing a candidate for office, likely would not be considered an election ad under current law, which does not cover pure issue advocacy even if intended to influence election outcomes.

These advertisements also would not be covered under proposed federal legislation, the “Honest Ads Act,” which would extend rules barring foreign spending on television or radio “electioneering communications” to communications via digital outlets like Facebook. Electioneering communications must feature the name or likeness of a candidate for office to be covered by the proposed law.

Even if Congress passed a statute purporting to make illegal all of the activity Russians engaged in during the 2016 election, such a statute would likely run into First Amendment resistance.

Internet Speech Regulation

HuffPost: Media Groups Protest Facebook Ad Rules That Lump News With Propaganda

By Paul Blumenthal

Facebook’s decision to require news organizations to adhere to its new political advertising disclosure policy has brought protests from media associations, including a letter sent Monday by seven groups demanding that advertisements purchased by news media not be subject to the disclosure requirements…

The groups demand that Facebook immediately stop applying its new political advertising rules to news organizations…

The rules state that anyone who purchases an ad that targets the U.S. audience and that, according to Facebook’s determination, could have the effect of influencing public opinion on issues of public importance must register with the company, carry “paid for by” disclosures and be included in Facebook’s political ad database…

[Facebook’s director of product Rob] Leathern affirmed that the company recognizes “news coverage of elections and important issues is distinct from advocacy or electoral ads.”

However, he added in the emailed comment, “Any ad that has political content on Facebook going forward will require authorization, labeling and archiving – regardless of who’s running it. We think it’s important that any ad that mentions a candidate, for example, include this transparency and be accessible via the archive. If an ad is deemed political and doesn’t have a label, we’ll take it down and add it to the archive.”

Digiday: Publishers stop Facebook ad spending over policy that treats publishers as political advertisers

By Lucia Moses

Facebook’s new ad-labeling policy has come under fire from publishers who are concerned that their news articles will be treated as political advocacy ads, and at least two – The Financial Times and New York Media – have suspended their paid media spending on Facebook in response to the policy…

Some publishers also have expressed concern over the requirement in Facebook’s policy that advertisers verify their identity – a stipulation that publishers say would pose liability risks for the publishers’ employees.

“We strongly believe to conflate news with advocacy is a very dangerous direction to take,” said Jon Slade, the FT’s chief commercial officer. “There’s also a lack of clarity around the liability.”

“For the time being, New York Media is pausing its paid marketing on Facebook for content and brand promotion unless we’re certain that it can’t be construed as political, and thus subject to Facebook’s ad archive disclosure requirements as we understand them,” a company spokesperson said.

The Courts

Fox News: DOJ excoriates University of Michigan’s ‘bias response team,’ says free speech is ‘under attack’

By Gregg Re

In the statement of interest filed in the U.S. District Court for the Eastern District of Michigan, the DOJ wrote that “free speech has come under attack on campuses across the country,” including at schools like the University of Michigan that regularly receive tens of millions of dollars in federal funds.

The filing then excoriates the University of Michigan’s “overbroad, vague, and subjective” bias response policy — which comes complete with a fast-acting “Bias Response Team” (BRT) — that the DOJ paints as an Orwellian betrayal of First Amendment principles…

Speech First, a pro-First Amendment group, sued the University of Michigan in May.

While the DOJ is not directly involved in the case as a party, the move is yet another sign that the department wants a campus free-speech case to go to the Supreme Court, which could help set nationwide law on public school bias policies…

The DOJ previously has filed statements of interest challenging restrictive campus speech policies that established limited “free speech zones” in Georgia and California.

And, in January, the DOJ filed a statement of interest in defense of the Berkeley College Republicans, who said the school unfairly applied a “High-Profile Speaker Policy” that unconstitutionally hurt their efforts to bring conservative speakers to campus.

Washington Examiner: Federal judge halts secret FEC plot to target GOP groups

By Paul Bedard

In a newly released decision, Trump-appointed District Court Judge Trevor N. McFadden shined a spotlight on the FEC’s general counsel who recommended action against four Republican groups but dismissal of similar charges against supporters of a Democratic group, “Black Men Vote.”

In the case, the Washington-based Campaign Legal Center charged that the FEC wrongly voted to drop charges against three of the Republican super PACS accused of taking “straw donations” through corporations.

In a February 2016 3-3 vote, the FEC’s Republicans voted to dismiss action in all five cases…

In the federal court case, McFadden considered only three Republican cases involving straw donors from limited liability corporations, but since the FEC combined all five confidential recommendations, he considered them all too and made a point to note how the FEC counsel’s enforcement recommendations were biased against Republicans…

The judge’s decision won support from a former Democratic FEC chairman who said it was a major victory for the election commission. “A resounding victory for the FEC at the USDC for DC. The agency wins deference for its decision (three Commissioners voted not to investigate three ‘dark money cases) and quite a ‘tip of the hat to the First Amendment’s role in agency decisions,” tweeted Bob Lenhard.

Congress

Politico: Illinois Republicans buck Trump over Blagojevich

By Natasha Korecki

The Illinois Republican congressional delegation is asking President Trump to call off any plans to commute ex-Gov. Rod Blagojevich’s 14-year sentence, saying it would “set a detrimental precedent and send a damaging message.”

A copy of the letter obtained by POLITICO shows the state’s seven GOP House members in unified opposition to freeing the former Democratic governor.

“[W]e ask that you consider very carefully the precedent this may set and the impact it will have on acts of public corruption in the future. As you well know, the integrity of our democracy and the core of American values depend on our elected officials being honest in upholding the trust given to them by the American people. Granting clemency to Rod Blagojevich would go against this trust,” the letter concludes.

The letter was signed by Reps. Peter Roskam, Darin LaHood, John Shimkus, Mike Bost, Randy Hultgren, Adam Kinzinger and Rodney Davis.

Trump Administration 

Wall Street Journal: A Democrat Dissents on the Mueller Probe

By Jason Willick

President Trump opened the week in a typical fashion, angrily denouncing special counsel Robert Mueller’s investigation. But Mr. Trump appealed to an unlikely authority: Mark Penn, the Democratic pollster who guided President Clinton through his second-term scandals and then served as chief strategist for Hillary Clinton’s 2008 presidential campaign…

Mr. Penn says it is his detractors who are putting political interest over principle. “There were not enough Republicans who came out in ’98 against the process,” he tells me, “and there are not enough Democrats who are coming out against the process now.”

By “the process” Mr. Penn means the use of legal tools to settle political differences, a phenomenon he sees as getting worse. “If all politics, even after elections, becomes the politics of personal destruction and destroying our opponents rather than fighting for the next election,” he asks, “what will be left of an ideas-based democracy?”

The States

New York Times: Democratic Women Are Running for Governor. Men and Money Stand in Their Way.

By Jonathan Martin and Alexander Burns

Mr. Reid, the former Senate Democratic leader, was even blunter when he warned the president of Emily’s List, Stephanie Schriock, that the Democratic women’s group would be inviting disaster if they spent heavily for Ms. Giunchigliani, according to two Democrats who described the private conversation on condition of anonymity.

Were Ms. Giunchigliani, a veteran officeholder and outspoken liberal, to be nominated, Mr. Reid said, the casino executives who dominate Nevada politics would not only throw their support to Adam Laxalt, the likely Republican candidate for governor – they would also work to wrest control of the state Legislature away from Democrats.

His plea fell on deaf ears. Emily’s List polled the race, found Ms. Giunchigliani could be competitive and has spent about $2 million on her candidacy, lifting her into contention…

“You can’t wait to be asked because a lot of guys won’t ask you,” said Kathleen Sebelius, the former Kansas governor. “You have to crash the party and, if there’s an opening, go for it because a lot the party organizations are run by the old boys.” …

Ms. Giunchigliani – who has gone by “Chris G” since teaching middle school and spells out the pronunciation, “June-kill-e-on-e,” on business cards – has closed a spending gap in her bid to succeed the term-limited Gov. Brian Sandoval…

And thanks to outside allies like Emily’s List and the state chapter of the National Education Association, she has drawn closer to parity on Nevada’s airwaves ahead of Tuesday’s primary.

Columbia Daily Tribune: Greitens panel done with end of special session

By Rudi Keller

As soon as Gov. Mike Parson finished his address to a joint session of the General Assembly, lawmakers adjourned their special session and with that action ended the investigation of former Gov. Eric Greitens.

The House Special Investigative Committee, established to investigate and possibly write articles of impeachment, went out of existence. Whether it will be reborn as an interim committee with broader powers is uncertain, and House Speaker Todd Richardson, who has authority to re-establish it, has not been available to reporters…

The committee’s meetings ended the day Greitens announced he would resign. On Wednesday, the House stopped trying to enforce a subpoena for documents from Greitens for Missouri, his campaign committee, and A New Missouri, a not-for-profit established to promote Greitens’ agenda…

Since the withdrawal of the subpoena – which came as a surprise to most committee members – the future of the investigation has been uncertain… 

Rep. Nate Walker, R-Kirksville and one of the first Republicans to call for Greitens to resign, said the committee’s investigation should continue.

“If we don’t get to the root of dark money and it has some reform in regard to elections and also ethics, then this thing could reappear or happen again,” he said…

House Minority Whip Kip Kendrick, D-Columbia, said the investigation needs to continue so the House can’t be accused of trying to cover up how money from anonymous donors is used in Missouri.

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