Daily Media Links 2/8: FEC commissioner’s departure leaves panel with bare-minimum quorum, How about a little bipartisanship to protect nonprofits and privacy?, and more…

In the News

Washington Examiner: If $1,000 is crumbs, as Nancy Pelosi says, then campaign disclosure laws are out of date

By Bradley A. Smith

If Nancy Pelosi thinks that $1,000 is “crumbs,” why does she support a law that requires every American who contributes more than $200 (and as little as $10 in some states) to a candidate, political party, or PAC, to be reported to the government, with their names, addresses, and employment information published for the world to see?

You might think of it this way: Federal campaign finance reporting is a vast government database, stretching back literally decades, of the political views and activity of millions of ordinary Americans. This database is not only available to government bureaucrats, it is made public where it can be accessed by potential or actual employers, financial institutions, college admissions officers, or any nosy neighbor. In this era of Twitter mobs, social media bullying, and politically-inspired vandalism and boycotts, is this really necessary, or even a good idea? …

The threshold at which contributor information must be publicly disclosed should be substantially higher than it currently is. That would simplify the reporting system, make harassment of small donors less likely, and encourage small donor participation. That would be one campaign finance reform both Left and Right could get behind. And it wouldn’t be “crumbs.”

National Press Foundation: The Pros and Cons of Campaign Finance Limits

By Chris Adams

In a session with Paul Miller fellows, two experts on the nation’s complex campaign finance laws differed on the effectiveness of those laws – and whether they should even exist.

Larry Noble, senior director and general counsel of the Campaign Legal Center, detailed the ways in which recent decisions by the U.S. Supreme Court have made it easier for wealthy donors to funnel money to support the candidates and campaigns they favor…

“The game that’s being played right now is hide the donor,” he said.

David Keating, president of the Institute for Free Speech, questioned the need for limits or for disclosure rules.

“So-called ‘dark money’ is a very small percentage of the total,” he said, adding that it amounted to less than 4 percent of the total in the 2016 election cycle. “I think it’s very unlikely to increase in the future. When you look at it from a donor’s view, if you want to influence an election, it’s a very wasteful way to go about it.”

He also said that the concern over big money in elections is overblown – and that people often forget the underlying issue that limits represent.

“What we’re talking about here is the First Amendment right to speak out about our government,” he said.

New from the Institute for Free Speech

Oregon H.B. 4076; Taxpayer-Financed Campaigns – A Failed and Costly Policy

By Matt Nese

These programs have failed to live up to their lofty expectations, while wasting precious taxpayer dollars, and forcing citizens to subsidize the candidacies of individuals with which they may disagree on many issues, including at times highly controversial candidates with which many, if not most, taxpayers may disagree…

I highlight a number of policy issues in my analysis: (I) recent corruption scandals in Oregon would have been unaffected by the existence of a tax-financing program; (II) New York City’s matching funds program, one of the oldest in the country, is fraught with corruption; (III) similar programs in Arizona, Maine, and Los Angeles have also experienced much corruption since their inception; (IV) academic studies have found no evidence that these programs decrease the incidence of public corruption or improve trust in government; (V) an analysis of Connecticut’s tax-financing program has demonstrated its failure to change legislative voting patterns; (VI) existing statewide programs have done little to diminish alleged “interest group” influence; (VII) many other claims by advocates of “clean elections” have also been shown to be false; and (VIII) the cost of a statewide program in Oregon is likely to be immensely expensive and rise in cost over time.


Campaign “Pledges” Are Often Self-Serving for Incumbents

By Joe Albanese

Americans are well aware that they live in a time of great partisan division, one of the consequences of which is Congress’s continual inability to function efficiently. Senator Joe Manchin of West Virginia thinks he has a solution: a pledge that sitting senators not campaign against each other…

Would following these rules make Congress more collegial and efficient? Possibly. But what is certain is that such an arrangement would do more to prop up incumbent politicians at the expense of their challengers and critics. As long as it makes their lives easier during campaign time, politicians might think it’s good for politics as a whole.

One obvious implication of this pledge is that, were senators to stop campaigning against each other, their time, resources, and attention would likely become more focused on shutting out critics who are outside of the Senate, like electoral challengers, nonpartisan advocacy groups, and other political outsiders. Fresh-faced candidates often rely on more recognizable allies to establish a brand and compensate for their own low profile, but without that support, incumbents can dominate the conversation by virtue of their office, media contacts, franking privileges, record of legislative accomplishments, and likely fundraising prowess.


Washington Post: FEC commissioner’s departure leaves panel with bare-minimum quorum

By Michelle Ye Hee Lee

With Goodman’s departure, the FEC has a bare-minimum quorum of four members – two Republicans, one Democrat and one independent – whose unanimous votes are now required to take official action…

In anticipation of the departures of Goodman and Petersen, the White House in September nominated Trey Trainor, a conservative Texas lawyer who worked for Trump’s campaign, to serve on the FEC. But the Senate has not held a confirmation hearing for Trainor…

Goodman said he believes that Trainor would replace him on the commission and that his departure will spur the White House and Senate Rules and Administration Committee to work quickly to fill the vacancies…

“I leave one principle area sort of incomplete: That’s greater deregulation of state and local political parties, and there’s still work underway here,” Goodman said. “Otherwise, I thought I had fought the good fight to keep political speech on the Internet free, to protect free-press rights and generally protect the First Amendment rights of American citizens.”


Washington Examiner: How about a little bipartisanship to protect nonprofits and privacy?

By Eric Peterson

Rep. Peter Roskam, R-Ill., recently introduced legislation that would bar the IRS from collecting Schedule B forms, as well as the “name, address, or other identifying information” of donors to 501(c) organizations, otherwise known as nonprofits.

One doesn’t need to look too far into America’s past to figure out why the IRS, or any other government agency, shouldn’t be collecting this private information.

Only last year, new revelations were still coming out about the behavior of the IRS during the Obama administration. The agency admitted that it targeted 36 Tea Party and other conservative groups between 2009 and 2012… 

Everyone should be able to agree that government agencies exist to protect and serve the public, not to use private information as a political weapon against groups fighting on behalf of causes that a particular administration doesn’t like.

Roskam’s bill would be a bipartisan step toward protecting everyone from government targeting and overreach.

Supreme Court

ABA Journal: Free speech at the Supreme Court

By Erwin Chemerinsky

In a term filled with potential blockbuster decisions, it is striking that there are five cases involving issues of freedom of speech. They touch on many different aspects of First Amendment jurisprudence and collectively have the potential for significantly changing the law in this area…

Most terms, like last year, have two or three free speech cases. To have five, and in such controversial areas and with such potentially broad implications, is extraordinary. 

The Atlantic: Can Government Officials Have You Arrested for Speaking to Them?

By Garrett Epps

If a citizen speaks at a public meeting and says something a politician doesn’t like, can the citizen be arrested, cuffed, and carted off to the hoosegow?

Suppose that, during this fraught encounter, the citizen violates some law-even by accident, even one no one has ever heard of, even one dug up after the fact-does that make her arrest constitutional?

Deyshia Hargrave, meet Fane Lozman. You need to follow his case.

Hargrave is a language arts teacher in Kaplan, Louisana. She was arrested Monday after she questioned school-district policy during public comment at a school board meeting…

Fane Lozman, whose case will be argued in front of the Supreme Court on February 27, faced the same fate at a meeting of the Riviera Beach, Florida, city council in November 2006…

It’s established law that the First Amendment protects citizens from “adverse actions” by government, if the “adverse actions” are “retaliation” for their exercise of First Amendment rights.

Citizens United

Center for Responsive Politics: 8 years later: How Citizens United changed campaign finance

By Bob Biersack

At the highest levels, the changes appear quite modest. Following a surge in spending in congressional elections in 2010 (perhaps reflecting the Republican “wave” in that cycle), there has been no growth at all in the overall amount spent in congressional races when adjusted for inflation. Presidential campaigns are inherently idiosyncratic, but real spending in those also has declined since reaching its peak in 2008.

Direct spending by Senate candidates has declined each cycle since 2012, from $748 million in 2012 to $625 million in 2016…

Spending by House candidates also has declined from a peak of $1.1 billion in 2012 to $970 million in 2016. While these races also are subject to changes based on competitiveness – wave elections in 2006 and 2010 and challenges to new party majorities in 2008 and 2012, for instance – there is no denying the flattening of the growth curve after Citizens United…

Spending by Republican Party organizations has been little changed since 2004. And while there was an increase for Democrats in 2016, growth in spending has been modest for them as well, with no obvious acceleration after 2010…

In 2016, more than one out of every five dollars spent in connection with presidential and congressional campaigns was spent by committees and groups with access to unlimited and unrestricted sources of funds.

Candidates and Campaigns

Roll Call: Montana’s Greg Gianforte Ditches ‘No PAC’ Pledge for 2018

By Simone Pathé

After pledging not to take corporate PAC money during his 2017 campaign for Congress, Rep. Greg Gianforte accepted nearly $20,000 in corporate PAC donations during the fourth quarter of 2017.

“I have been taking PAC money,” the Montana Republican said Tuesday…

It’s not unusual for candidates to make some variation of “no PAC” pledges – a growing number of Democratic challengers are making similar commitments this year…

Gianforte first made the pledge against taking all PAC money when he was running for governor in 2016. He made it the subject of a campaign ad and attacked Democratic Gov. Steve Bullock for not making the same commitment. Gianforte ended up losing that race, but not before spending $6 million of his own money…

Democrats ridiculed Gianforte, a wealthy businessman, for making these pledges during his gubernatorial and congressional bids since he spent his own money on his races.

The States

NW News Network: Washington House Considers State Campaign Finance Reform Bill

By Emily Schwing

It passed the state Senate last month.

The bill is still being debated. According to the version in the House right now, nonprofits and other similar organization that spend $25,000 or more to advocate for or against ballot measures and candidates will have to disclose the names of donors that give more than $10,000.

It’s sponsored by state Senator Andy Billig, a Democrat from Spokane.

“This bill is quite a moderate approach,” he said. “It doesn’t say that a non-profit can’t spend money on elections. It just says ‘if you do, disclose your donors.’ It doesn’t even say you have to disclose all your donors. It just says ‘let’s see who the big money behind the donations are.'” …

But opponents are concerned it could hinder free speech.

“This bill would impact small local associations,” said Mark Johnson, vice president of government affairs for the Washington Retail Association. “This bill will have the unintended consequence of encouraging the opportunity to file more complaints against more organizations. If the goal is to improve campaign finance laws, one way might be to streamline the laws that exist now and better fund the [Public Disclosure Commission].”

Times Union: Group picks Alaska to challenge unlimited campaign donations

By Becky Bohrer, Associated Press

Equal Citizens is supporting complaints that have been filed with the Alaska Public Offices Commission over contributions made in the 2016 election to independent groups that backed candidates to the Alaska Legislature…

The complaints contend that state law would cap contributions individuals or other groups could contribute to $500 and $1,000 a year, respectively, but that the law was flouted…

Since the 2010 U.S. Supreme Court decision, states and localities have so far had no success using the courts in attempts to impose limits on spending by corporations or labor unions, said election law expert Richard Hasen, a law professor at the University of California at Irvine.

The legal effort in Alaska “is the next step, the question of contributions by individuals, corporations, labor unions through independent expenditure committees, these so-called super PACs,” he said…

Staff for the Alaska Public Offices Commission has concluded the complaints should be rejected. If the commission agrees, the matter can be appealed to state court.

Heather Hebdon, the commission’s executive director, said the allegations involve activities approved by the commission in a 2012 advisory opinion.

U.S. News & World Report: New Mexico Lawmakers Embrace Effort to Regulate Dark Money

By Associated Press

A state-by-state initiative aimed at regulating and possibly limiting the role of money in politics through an amendment to the U.S. Constitution has won its first endorsement from a state legislative chamber.

The New Mexico House of Representative voted 41-28 on Wednesday to urge Congress to restore greater federal and local regulation of political spending that influences elections and governance. State Senate action is pending.

The effort seeks to reverse Supreme Court actions including the 2010 Citizens United decision that cleared the way for unlimited independent elections spending. It sparked a spirited floor debate Wednesday about political spending and free speech.

Similar measures are slated for introduction soon in Alabama and New Hampshire.

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