Daily Media Links 6/14: Ban on “Political” Clothing in Polling Places Is Unconstitutionally “Unreasonable,” New York Attorney General Sues Trump Foundation, and more…

Supreme Court

The Hill: Supreme Court strikes down ban on political apparel at polling places

By Lydia Wheeler

The Supreme Court on Thursday struck down a Minnesota law that bans all political apparel at polling places.

In a 7-2 ruling, the court said the state law violates the First Amendment’s protection of free speech.

In delivering the opinion of the court, Chief Justice John Roberts said the law does not define what apparel is “political,” a word he that said can be expansive.

“It can encompass anything ‘of or relating to government, a government, or the conduct of governmental affairs,'” he said, quoting Webster’s dictionary definition, “‘or anything ‘of relating to, or dealing with the structure or affairs of government, politics, or the state,'” he added, quoting the American Heritage Dictionary.

“Under a literal reading of those definitions a button or T-shirt merely imploring others to ‘Vote!’ could qualify.” …

Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, Elena Kagan and Neil Gorsuch joined Roberts in the majority.

Justice Sonia Sotomayor filed a dissenting opinion, which Justice Stephen Breyer joined…

At least nine other states – Delaware, Kansas, Montana, New Jersey, New York, South Carolina, Tennessee, Texas and Vermont – have similar laws, according the Minnesota Voters Alliance, which brought the case challenging Minnesota’s ban.

Andrew Cilek, the founder and executive director of the group, which claims to be dedicated to ensuring election integrity, sued state election officials after he was twice turned away from the polls for wearing a “Don’t Tread on Me” T-shirt… 

Cilek was represented by the Pacific Legal Foundation, a conservative legal advocacy group, and supported by the America Civil Liberties Union, which argued in a friend of the court brief that Minnesota’s ban was far broader than necessary to address the state’s compelling interest in protecting the right to vote.

Reason (Volokh Conspiracy): Ban on “Political” Clothing in Polling Places Is Unconstitutionally “Unreasonable”

By Eugene Volokh

In Minnesota Voters Alliance v. Mansky, the Supreme Court today struck down a ban on people, including ordinary voters, wearing any “political badge, political button, or other political insignia” in a polling place…

A broader takeaway for future cases: The Court has in recent years somewhat cut back on the void-for-vagueness doctrine, by insisting that courts (even in free speech cases, where the doctrine is stronger than in others) should generally “consider whether a statute is vague as applied to the particular facts at issue, for ‘[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.'” If the law clearly applies to your speech, you can’t challenge it as vague even if it’s vague as applied to a large zone of other speech. And this means that laws generally can’t be challenged as vague on their face (the way they can be challenged as overbroad), unless they are so vague as to be generally indeterminate.

But vagueness arguments can still be made within other First Amendment doctrines, and can thus prevail in facial challenges (such as this one). We saw that in Reno v. ACLU (1997), where the vagueness of terms in the Communications Decency Act led the Court to conclude that the Act was unconstitutionally overbroad. We see that here, where the vagueness led the Court to conclude that the law was unreasonable. The same logic could lead to a conclusion that the law is not narrowly tailored to a government interest, and thus fails intermediate or strict scrutiny in the many cases where such scrutiny is applied. Expect more such challenges to vague statutory terms in First Amendment cases.

The Courts

Denver Post: Federal judge finds portions of Colorado’s campaign finance complaint process are unconstitutional in ruling likely to prompt big change

By Jesse Paul

In a ruling with a major impact on Colorado elections, a federal judge this week found that portions of the state’s campaign finance procedures centering on private citizens’ ability to file complaints are unconstitutional.

Judge Raymond Moore’s Tuesday decision, on campaign finance law enforcement procedures that voters added to the state’s constitution in 2002, focuses on how when complaints are filed they are automatically forwarded – without review for merit by the Colorado Secretary of State’s Office – to an administrative law judge…

“How is it reasonable to encroach upon First Amendment speech by allowing a person to enforce campaign finance regulations when that person may have no experience of campaign finance regulations?” Moore asked in his 26-page ruling.

Colorado’s deputy secretary of state, Suzanne Staiert, said the decision now means her office has to find a way to satisfy the vetting requirements.

“We have to decide in the next few days, because right now I don’t think we can send a complaint over,” Staiert said Wednesday. “It’s a little upheaval, but we’ll figure it out so there’s an enforcement mechanism for the (2018) election.”

Staiert said one option is for elections officials to add screening procedures through a rulemaking process…

The ruling stemmed from a case involving a Strasburg woman who placed ads in her local newspaper about a school board race. The Secretary of State’s Office says the school district’s superintendent filed a complaint against her, which was then forwarded to an administrative law judge.

The judge found in the woman’s favor, Staiert said, though the process cost her thousands of dollars.


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

Independent Groups

Cleveland.com: Ohio dark-money group broke campaign-finance rules, group claims

By Jeremy Pelzer

Freedom Vote Inc., led by former Republican National Committee political director James Nathanson, failed to report more than $1.1 million worth of spending on ads opposing 2016 Democratic U.S. Senate nominee Ted Strickland, according to complaints filed Tuesday by the group Citizens for Responsibility and Ethics in Washington (CREW) with the IRS and Federal Election Commission…

Between October 2015 and September 2016, Freedom Vote reported political spending of more than $1.7 million – 48.8 percent of the group’s overall spending, according to a CREW statement. But when the anti-Strickland ads are factored in, about 80 percent of Freedom Vote’s spending during that time was political, the group asserted.

CREW, based in Washington, D.C., has asked the IRS to investigate whether Freedom Vote violated its tax-exempt status and requested that the FEC make the group register as a political committee (a step that would force Freedom Vote to disclose its donors).


Washington Examiner: Ex-FEC Dem escalates attack on GOP, ‘self-enrichment’ over ‘public service’

By Paul Bedard

Republican Rep. Darrell Issa is seeking to use money in his campaign kitty to repay an old loan to his failed 1998 Senate campaign, drawing fire from a former Democratic chairwoman of the Federal Election Commission who backed former Senate Democratic Leader Harry Reid’s demand to spend his leftover campaign money on office expenses.

Issa, the California lawmaker who is retiring after this term ends, has asked the FEC to let him use $752,000 left in his debt-free House campaign committee to pay down the outstanding $9 million loan he made to his Senate campaign.

If allowed to make the transfer, Issa’s lawyers said that when he leaves the House, both accounts would be closed and he would eat the remaining debt.

The FEC received his request last week…

But it was immediately attacked by former Democratic FEC Chairwoman Ann Ravel, who recently conceded an anti-GOP bias at the agency.

In a tweet she slammed the Issa in piggybacking on a tweet that suggested he should give the money to charity instead.

“We appear to be in a time when the lofty ideals of public service have changed to self enrichment,” wrote Ravel…

There is a precedent for retiring lawmakers to use remaining campaign funds to pay debts.

Before leaving the FEC and when she was chairwoman in 2016, Ravel pushed to expand that allowance by backing a request by Reid to use over $600,000 in leftover campaign funds to set up his office. Despite criticism from a top Republican on the FEC that it amounted to a “slush fund” and was an unprecedented use of campaign money, Ravel argued for Reid to get the OK.


Wall Street Journal: We Must Improve Our Trust

By Peggy Noonan

All the polls show and have for some time what you already know: America’s trust in its leaders and institutions has been falling for four decades. Trust in the federal government has never been lower. In 1958 Pew Research found 73% trusted the government to do what is right “always” or “most of the time.” That sounds healthy. As of 2017 that number was 18%. That’s not.

Other institutions have suffered, too-the church, the press, the professions. That’s disturbing because those institutions often bolster our national life in highly personal ways. When government or law turns bad, they provide a place, a platform from which to stand, to make a case, to correct.

A problem that has so many parts and so much history-from Vietnam to Twitter bots-will not easily be solved. But there are things we can do individually to help America be more at peace with itself.

First, realize this isn’t merely a problem but a crisis. When you say you believe in and trust democratic institutions, you are saying you believe in and trust democracy itself. When you don’t, you don’t

Be skeptical of our institutions, not cynical toward them…

Finally, we ask so much of government, which is not, we know, the most competent of institutions. When we ask too much and multiply its tasks, it’s likely to fail, and when it does we become angry-and trust goes down again.

Our founders were skeptical of concentrated power. The power of government, arrayed against the individual, could crush him. They devised checks, balances, enumerated rights. Those who believe in their wisdom should speak of it more persuasively.

The States

Wall Street Journal: New York Attorney General Sues Trump Foundation

By Terry Goddard and Vernon Parker

The New York state attorney general’s office on Thursday sued President Donald Trump, his children and the family’s foundation, accusing the charity of unlawfully coordinating with Mr. Trump’s presidential campaign…

The attorney general’s office seeks to dissolve the foundation and asks for $2.8 million in restitution.

It also asks that board members Donald Trump, Donald Trump Jr., Ivanka Trump and Eric Trump be banned from serving on the board of any charity in New York…

Trump Foundation spokeswoman Amanda Miller called the suit “politics at its very worst.” She said the foundation had already proposed its own voluntary dissolution more than a year and a half ago…

The attorney general’s office said its investigation found the foundation raised more than $2.8 million in a matter designed to influence the 2016 election. It said Mr. Trump raised these funds at a nationally televised fundraiser that he held in Iowa instead of participating in a presidential primary debate.

The attorney general’s office also alleges that senior Trump campaign staff dictated the timing, amounts and recipients of grants the foundation made to nonprofits…

In the days immediately before the Feb. 1, 2016, Iowa caucus, the foundation made at least five $100,000 grants to groups in Iowa, the attorney general’s office said.

The attorney general’s office said none of the foundation’s spending was approved by its board of directors. It also says the board didn’t meet after 1999 and it had no policy or criteria for choosing its grant recipients.

The New York attorney general’s office began investigating the Donald J. Trump Foundation in June 2016, legal documents show.

Dothan Eagle: Secretary of State to Ethic Commission: Follow the law or have it changed

By Alabama Secretary of State John H. Merrill

The Ethics Commission held its first quarterly review of the fines against committees who had requested an appeal in December, and has held subsequent reviews in April and June. During each of those meetings, the five-member Ethics Commission voted to overturn all of the 54 requests for appeal that were submitted to the Commission for review of a total of 113 civil penalties. The fines were overturned based on concerns from the Commission that this law was a new law which campaigns could not be held responsible for accountability at this time.

The appeal process is in place for a candidate’s or committee’s first offense for which someone does not meet the standard as prescribed in state law. If they are a repeat offender, the law requires a monetary penalty be issued by the Secretary of State’s office. My question to members of the Ethics Commission, members of the media, and the people of Alabama is why do we pass ethics laws and employ an ethics commission if we do not intend to enforce the rule of law?

Further, the law was not established to function as an expensive, taxpayer-funded, reminder to candidates who fail to timely file, but it was created to provide transparency on campaign contributions and expenses for all Alabamians to see and serve as a deterrent to candidates who wish to deceive voters by not providing evidence regarding the source of their campaign donations or expenditures.

Simply put, the Alabama Ethics Commission, like all other state agencies, should follow the law or ask the legislature to change it.

Arizona Daily Sun: Guest Column: We can’t get rid of dirty money unless it makes the ballot

By Terry Goddard and Vernon Parker

Right now petitions are being circulated to get the “Stop Political Dirty Money Amendment” on the November ballot. If voters approve, the measure would amend the Arizona constitution to require public disclosure of any contributor who spends $2,500 or more to influence an election during a two-year cycle, even if that contribution was passed through a third-party organization.

Gotham Gazette: Campaign Finance Board to Propose Reforms at Charter Commission Hearing

By Samar Khurshid

CFB officials are set to present five proposals to the charter revision commission, empaneled in April by Mayor Bill de Blasio, on Thursday afternoon, at an issue forum at NYU focused on campaign finance reform…

Perhaps the CFB’s most significant proposal involves significantly lowering contribution limits for all offices…

The CFB suggests increasing the matching fund ratio for citywides from 6-to-1 to 8-to-1 and increasing the matchable donations from $175 to $250…

The mayoral charter revision commission’s proposals will be announced in early September and placed on the ballot in the November general election, with city voters approving or rejecting them.

A second charter revision commission is being formed after legislation passed the City Council earlier this year. Its work will culminate with ballot proposals in 2019.

One bill currently at the City Council, proposed by Council Member Ben Kallos, would increase the cap on public campaign matching funds from the current 55 percent of the spending limit for a particular seat to 85 percent. The CFB is now proposing a more moderate increase to 65 percent of the spending limit…

Two other new CFB proposals would alter the thresholds for candidates to qualify for public funds.

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