By Steve Terrell
In an opinion piece published by The New Mexican this week, Gessing and Bradley Smith, chairman of the Center for Competitive Politics and a former member of the Federal Election Commission, wrote, “Bureaucratic rule-makings can serve an important function. They help to implement and clarify laws that are passed by the Legislature. But here, instead of implementing the law, the Secretary of State’s Office is enacting rules that were rejected in the constitutional lawmaking process.”…
Toulouse Oliver’s proposed rule is based on a bill that passed the Legislature with bipartisan support this year but was vetoed by Gov. Susana Martinez. Martinez wrote in her veto message, “While I support efforts to make our political process more transparent, the broad language in the bill could lead to unintended consequences that would force groups like charities to disclose the names and addresses of their contributors in certain circumstances. The requirements in this bill would likely discourage charities and other groups that are primarily non-political from advocating for their cause and could also discourage individuals from giving to charities.”
Santa Fe New Mexican: Rules combatting “dark money” in politics facing growing opposition (In the News)
By Steve Terrell
By Bradley A. Smith and Paul Gessing
Bureaucratic rule-makings can serve an important function. They help to implement and clarify laws that are passed by the Legislature. But here, instead of implementing the law, the Secretary of State’s Office is enacting rules that were rejected in the constitutional lawmaking process. Although pitched as “political disclosure,” as Martinez wrote in her veto message in April, “the broad language in the bill could lead to unintended consequences that would force groups like charities to disclose the names and addresses of their contributors in certain circumstances.”…
Nonprofit speech about candidates allows voters to hear the varied perspectives of groups that do valuable work in our communities. For a variety of religious, civic and political reasons, many donors to these organizations do not want to have their names and home addresses published online for their boss and nosy neighbors to see. Rest assured, many groups will choose silence over exposing their supporters’ private information.
By Bradley Smith and Paul Gessing
This spring, the New Mexico Legislature considered imposing new donor disclosure rules on nonprofit organizations. The measure was vetoed by Governor Martinez over privacy concerns. Now Secretary of State Maggie Toulouse Oliver is attempting to impose those rules by bureaucratic fiat, using a regulation to enact what couldn’t be done through the normal lawmaking process.
Bureaucratic rules can serve an important function. They help to implement and clarify laws that are passed by the legislature.
But here, instead of implementing the law, the Secretary of State’s Office is enacting rules that were rejected in the constitutional lawmaking process. Although pitched as “political disclosure,” as Governor Martinez wrote in her veto message in April, “the broad language in the bill could lead to unintended consequences that would force groups like charities to disclose the names and addresses of their contributors in certain circumstances.”
Furthermore, the rules, if adopted, will almost certainly be challenged in court…
Governor Martinez wisely chose to avoid this course of action for New Mexico. We should be cautious when considering proposals that restrict or chill charitable giving. We should especially not impose such policies through a subversion of the democratic process.
By Michael Thielen
Commissioner Weintraub has been championing brazen partisanship inside a federal agency bound by law and the legal scope and jurisdiction of the agency…
Former FEC Chairman Brad Smith wrote recently that Weintraub should resign immediately because her attacks against Trump and his White House Counsel Don McGahn are in danger of jeopardizing the real work and mission of the FEC.
“Weintraub has placed herself in a position where any participation by her in a matter involving the Trump campaign could jeopardize any agency finding against the campaign. . . . For some time now, Weintraub has apparently given up on the substantive work of the FEC in favor of pursuing her obsession with McGahn (who left the Commission nearly four years ago) and political grandstanding.”
Smith goes on from there to describe the often silly and unprofessional behavior Weintraub has exhibited in her crusade against Trump. Weintraub’s antics are embarrassing enough for a once-respected agency with a reputation for, if not pure impartiality, the ability to get the work done in spite of political differences.
Now, Weintraub threatens to make it nearly impossible for the FEC to remain impartial on any matter regarding President Trump.
Concurring Opinions: FAN 155 (First Amendment News) “The Past, Present and Future of Free Speech” – Journal of Law and Policy posts First Amendment Symposium (In the News)
By Ronald K.L. Collins
When it comes to First Amendment symposia, Brooklyn Law School seems to be the go-to-venue, at least judging from the latest issue of the Law School’s Jounral of Law and Policy. The symposium was done under the watchful eye of Professor Joel Gora, who authored the Introduction – The Past, Present and Future of Free Speech. In that introuction Gora writes:
This may be a historic moment for the First Amendment. In 2016, a landmark Supreme Court ruling turned forty, the Supreme Court turned a corner, and First Amendment rights may turn out to be strengthened. January 30, 2016 marked the fortieth anniversary of the U.S. Supreme Court’s landmark decision in Buckley v. Valeo, dealing with the clash between First Amendment rights and campaign finance limits. And February 12, 2016, the day Supreme Court Justice Antonin Scalia died, marked the end of a ten-year period when the “Roberts Court” became perhaps the most First Amendment friendly and speech-protective Court in the Nation’s history. And the surprise outcome of this past presidential election may, unexpectedly, enhance the future of free speech, because Judge Neil Gorsuch, Donald Trump’s nominee to succeed Justice Scalia, seems to be a strong supporter of the First Amendment.
By Brad Smith
Today, the FEC is under attack from members of Congress with a misguided proposal to “reform” the agency. A bill co-sponsored by Rep. Lou Barletta (R-11, Hazleton) would shrink the agency from six commissioners to five. It may sound minor, but it has huge implications.
Republicans and Democrats now have equal influence over the commission. With six commissioners, at least one vote from each side is needed to write new rules or open investigations. In a proposed five-commissioner agency, one party would consistently trump the other.
The proposal would give the president the power to choose the pivotal fifth vote. In theory, no more than two commissioners could be from the same party, so no party would have a majority. But that would be illusory – for example, a Democratic president could appoint socialist U.S. Sen. Bernie Sanders; Trump could appoint a registered independent, such as his daughter Ivanka. The president could also name a commissioner to a 10-year term as chairman, meaning that the disadvantaged party would spend a decade on the losing end, even if it managed to win the presidency in between. The result, could be a partisan agency not trusted by roughly half of Americans.
Washington Examiner: New study fails to prove that money sways politicians, despite activists’ excitement (In the News)
By Joe Albanese and Brad Smith
“Money in politics” obsessives have long been frustrated at the lack of scholarly support for the notion that political spending directly alters legislative votes, which would help them to push for greater political speech restrictions. This complaint is a central theme of a new report by the progressive Roosevelt Institute, which the institute claims finally proves the link between money and policy.
The authors look at House Democrats who voted for financial regulations in the 2010 Dodd-Frank Act, but then voted to amend it in later years. They claim that political spending by the “finance industry” caused these Democrats to suspiciously “change their minds” – as if nobody can support a law while hoping to improve parts of it. The study’s methods discredit its conclusion…
Restricting how campaigns are financed necessarily involves limiting the speech and political activity needed to bring about political change. If this is the best evidence for claiming systemic corruption, there is little corresponding benefit from regulating campaign finance.
By Brad Smith
Buck’s proposal would give the president the power to choose the pivotal fifth vote. In theory, no more than two commissioners could be from the same party, so no party would have a majority. But that would be illusory. For example, a Democratic president could appoint Socialist U.S. Senator Bernie Sanders; Donald Trump could appoint a registered Independent, such as his daughter Ivanka. The president would also name one commissioner to a 10-year term as chairman, meaning the disadvantaged party will spend a full decade on the losing end, even if it managed to win the presidency in between. The result, before long, will be a partisan agency not trusted by roughly half of Americans.
Washington Examiner: Is the Supreme Court about to give state and local political parties a boost? (In the News)
By Bradley A. Smith
As part of the McCain-Feingold campaign finance “reform” of 2002, virtually everything these local parties do was brought into the web of federal regulation, and their sources of funding largely cut off. A poorly-reasoned Supreme Court decision, McConnell v. Federal Election Commission, upheld these restrictions against a constitutional challenge in 2003. Cases decided since McConnell, however, have relied on traditional First Amendment reasoning to overturn many parts of that decision. One of the few parts that remains is the restrictions on state and local parties.
The Supreme Court now has a chance to rectify this element of the McConnell decision. Currently before the court is the case of Republican Party of Louisiana v. Federal Election Commission, which challenges those legal restrictions on state and local party activity. The party’s position is simple: Why can super PACs, or a nonprofit like Planned Parenthood Action Fund, accept and spend unlimited sums from any source to influence elections, while political parties cannot? And how can parties corrupt their own candidates by trying to help them win elections?
By Brad Smith
The Watergate scandal that forced Richard Nixon to resign the presidency showed the dangers of allowing one party to use the power of government against the other. In the aftermath, the Federal Election Commission was created to make sure future administrations could not abuse campaign regulations to bludgeon their opponents.
But today the FEC is under attack from members of Congress whose misguided proposal to “reform” the agency could take us back to the Watergate era. A bill co-sponsored by Rep. Jim Renacci, an Ohio Republican, would shrink the agency from six commissioners to five…
Proponents justify this radical change by pointing to gridlock at the FEC. But in fact, the FEC usually reaches a majority vote except on controversial cases – The Center for Competitive Politics’ 2015 analysis found that 93 percent of FEC decisions were bipartisan. And not all gridlock is bad. A six-member commission with three votes on each side was designed to allow gridlock when the parties are in firm disagreement over whether campaign finance laws were violated.