Daily Media Links 8/20: Supreme Court Requests Response in Austin Campaign Finance Limits Case, ‘Uninhibited,’ You Say?, and more…

In the News

Washington Examiner: Gov. Steve Bullock’s nosy lawsuit to make the IRS collect more of your data

By Allen Dickerson

As the Supreme Court noted in 1976, when the government demands to know “the giving and spending of money” our freedoms are threatened, “for financial transactions can reveal much about a person’s activities, associations, and beliefs.” It was not for nothing that the IRS was one of Richard Nixon’s favorite tools to harass critics and rivals.

So when the IRS announced it would stop requiring that some nonprofit groups, including labor unions, report the names and addresses of their major donors, everyone should have breathed a sigh of relief. If it doesn’t have this information, the Trump administration cannot misuse it for political gain, or to promote the harassment of donors to left-wing causes.

But Bullock disagrees. His complaint, filed July 24 in federal court, argues that the IRS did not have the statutory power to cease collecting donor information. He’s wrong.

Congress expressly gave the IRS wide discretion to determine the information it needs from nonprofit groups. And federal regulations allow the IRS commissioner to “relieve any … class of organizations … from filing” information when “he determines that such returns are not necessary for the efficient administration of the internal revenue laws.”

Here, the commissioner determined that because contributions to these non-profits (as opposed to 501c(3) non-profits) are not tax-deductible, there is no need to collect donor information to ensure people aren’t improperly claiming deductions. And given the obvious privacy concerns, it was unwise to keep a list of sensitive financial transactions lying around on the IRS’ servers.

Despite all this, Gov. Bullock sued because he would very much like access to private donor information – but without the inconvenience of having to set up his own procedures for getting it.

WDAY Fargo: 970 WDAY on Demand: The Rob (re)Port 08/17/18

Rob discusses Measure One on the state wide ballot with Eric Wang, a senior fellow at the Institute for Free Speech …

[PDF of Eric Wang’s Analysis Of November 2018 North Dakota Campaign Finance/Lobbying Initiated Constitutional Amendment available here]

Ethics & Public Policy Center: A Compendium on the Kavanaugh Nomination

By Ed Whelan

I am compiling this ongoing compendium of materials on the Kavanaugh nomination in order to give the interested reader guided access to selected items that I consider worth reading. I have not attempted to be exhaustive, nor does my inclusion of an item mean that I necessarily agree with it…

Free Speech

Ken White reviews Judge Kavanaugh’s free speech decisions on the DC Circuit.

Institute for Free Speech posts a four-part series exploring Judge Kavanaugh’s jurisprudence in the sphere.

Brian Miller notes how Judge Kavanaugh is impartial in his support of free speech…

Campaign finance

The Institute for Free Speech analyzed Judge Kavanaugh’s rulings in five campaign finance cases

Meriden Record-Journal: Markley, Sampson continue to fight SEEC fine after judge dismisses appeal

By Mike Savino

Republican lawmakers Joe Markley and Rob Sampson continue to fight fines resulting from a 2014 election complaint, and are considering a federal lawsuit just as their 2018 campaigns are about to hit high gear. 

Markley and Sampson said Friday they are working with the Institute for Free Speech on a federal lawsuit challenging the State Elections Enforcement Commission’s interpretation of a state law requiring a candidate to only use campaign funds to further their own election. 

Separately, the two politicians also plan to appeal a New Britain Superior Court judge’s Aug. 2 decision… 

The SEEC in February imposed fines of $5,000 for Sampson and $2,000 for Markley after determining that in 2014 they improperly funded ads that included Gov. Dannel P. Malloy.

The SEEC determined that Sampson and Markley should have sought payment from Republican gubernatorial candidate Tom Foley…

Judge Joseph M. Shortfall dismissed the appeal, though, saying Sampson and Markley took longer than the allowed 45 days to file it. Agencies have 25 days to act on a request to reconsider, after which time the request is automatically rejected. 

Sampson and Markley filed their request on February 14, but the SEEC failed to take action until March 23. Shortfall said the request was automatically rejected in early March, when the 25-day window came and went, meaning Sampson and Markley had until late April to file their appeal. 

They maintain that the March 23 decision should start the clock…

[T]he two are also working with IFS on a federal lawsuit in hopes of getting a federal judge to stop SEEC from imposing its interpretation of the law. 

New from the Institute for Free Speech

Brief of the Public Policy Legal Institute and Institute for Free Speech As Amici Curiae Supporting Petitioner in Zimmerman v. Austin (U.S. Supreme Court)

This case asks whether a government can limit political speech and association solely because those activities are unpopular, as measured by public opinion polls. The Fifth Circuit below required no more evidence than that, a decision that accords with a recent holding of the Ninth Circuit. By contrast, the Second, Sixth, and D.C. Circuits all require specific evidence that meets this Court’s recent interpretations of the government’s anticorruption interest.

The evidentiary question presented is dispositive. There was no evidence in the record below showing actual corruption in Austin, Texas. The ballot initiatives which created the campaign contribution limits at issue here were a “response to the public perception that large campaign contributions from land developers and those with associated interests were creating a corrupt, ‘pay-toplay’ system in Austin politics.” App. Pet. for Cert. 2. There was, however, no evidence in the record and no finding of the lower courts that such a corrupt system actually existed. Austin proceeded to limit speech and association on the basis of perception alone.

This Court has identified only one legitimate governmental interest sufficient to outweigh the considerable First Amendment rights inherent in contributions to political candidates and campaigns: “preventing corruption or the appearance of corruption.” McCutcheon v. Fed. Election Comm., 572 U.S. 185, 206 (2014) (Roberts, C.J., controlling op.)…

Although the anticorruption rationale allows the Government to stave off the “appearance of corruption,” that interest does not include deterring the “appearance of influence or access.” Citizens United, 558 U.S. at 360 (“Ingratiation and access . . . are not corruption” and “[t]he appearance of influence or access will not cause the electorate to lose faith in this democracy.”).

Supreme Court

Election Law Blog: Supreme Court Requests Response in Austin Campaign Finance Limits Case

By Rick Hasen

From an emailed press release:

[Last] week, the Supreme Court of the United States issued an order requiring the City of Austin to respond to the request filed in July by Don Zimmerman, former District 6 Councilmember, seeking High Court review of two of Austin’s limits on campaign contributions.

Austin had previously notified the Court that it would waive its right to file a response. The Court’s action [last] week requires the City to respond to Zimmerman’s petition by September 13.

No doubt Judge Jim Ho’s dissent from denial of en banc rehearing in the 5th Circuit got this case some attention.

Free Speech

Washington Post: In an era when everything is political, is any Metro ad noncontroversial?

By Martine Powers

Metro’s aim is to keep anything controversial off trains and buses and station walls, evidenced by its most sweeping advertising restriction: a ban on ads intended to “influence members of the public regarding an issue on which there are varying opinions.” …

Last month, the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of Metro, declaring that the transit agency’s ban on “advertisements that promote or oppose any religion, religious practice or belief” is legal and has been enforced fairly.

Ed McFadden, secretary of communications for the archdiocese, said the organization is determining whether it will appeal the court’s ruling. It has another week to decide.

But already, behind the scenes, Metro is preparing for the possibility that the case may wind its way to the U.S. Supreme Court.

Other organizations have also pointed out what they believe is the excessive sweep and vagueness of Metro’s restriction on issue-oriented advertising. The ACLU sued Metro a year ago, arguing that “in its zeal to avoid hosting offensive and hateful speech, the government has eliminated speech that makes us think.”…

“By having an across-the-board ban, what’s not getting placed anymore are clear political ads, like those posters at Navy Yard station that used to say ‘Buy more ships,’ or other reasonable political statements,” [former Metro board chairman Mortimer Downey] said.

“In this town,” he added, “people want to communicate with opinion leaders.”

Online Speech Platforms 

Wall Street Journal: When Digital Platforms Become Censors

By Glenn Harlan Reynolds

Call 2018 the “Year of Deplatforming.” The internet was once celebrated for allowing fresh new voices to escape the control of gatekeepers. But this year, the internet giants decided to slam the gates on a number of people and ideas they don’t like. If you rely on someone else’s platform to express unpopular ideas, especially ideas on the right, you’re now at risk. This raises troubling questions, not only for free speech but for the future of American politics and media…

Today, the big internet companies are treated not as publishers but as conduits-tools that other people use to spread their own ideas. That’s why the “safe harbor provision” of the 1996 Communications Decency Act, a landmark in internet regulation, states that platforms aren’t legally responsible for what other people publish on their sites. The law was originally intended to protect things like newspaper comment sections, but its application has become very broad, encompassing virtually all of the content on social media and sharing sites.

Now these companies are trying to have it both ways. They take advantage of the fact that they are not publishers to escape responsibility for the endless amounts of problematic material on their sites, from libel to revenge porn. But at the same time, they are increasingly acting like publishers in deciding which views and people are permitted on their platforms and which are not. As a narrow matter of First Amendment law, what these companies are doing will probably pass muster, unless some federal court decides, as in Marsh v. Alabama (1946), that their platforms are functionally equivalent to “company towns,” where the public square is privately owned.

As a more general issue of free speech, however, the fact that a few corporations can play such a disproportionate role in deciding what subjects are open for debate is a problem. 

Politico: ‘We won’t let that happen:’ Trump alleges social media censorship of conservatives

By Politico Staff

President Donald Trump on Saturday took to Twitter to allege social media companies are discriminating against prominent conservatives, saying “we won’t let that happen.”

“Social Media is totally discriminating against Republican/Conservative voices. Speaking loudly and clearly for the Trump Administration, we won’t let that happen. They are closing down the opinions of many people on the RIGHT, while at the same time doing nothing to others…….” the president tweeted.

“…..Censorship is a very dangerous thing & absolutely impossible to police. If you are weeding out Fake News, there is nothing so Fake as CNN & MSNBC, & yet I do not ask that their sick behavior be removed. I get used to it and watch with a grain of salt, or don’t watch at all.”

Trump in July said his administration will look into the practice of “shadow banning” on Twitter, or reducing the visibility of certain people or groups on the platform, which he alleged was happening to prominent conservative voices…

The president later added: “….Too many voices are being destroyed, some good & some bad, and that cannot be allowed to happen. Who is making the choices, because I can already tell you that too many mistakes are being made. Let everybody participate, good & bad, and we will all just have to figure it out!”

Twitter CEO Jack Dorsey is slated to appear before the Senate Intelligence Committee to discuss Russian election interference, along with executives from Facebook and Google, on Sept. 5.

Wall Street Journal: A Better Way to Regulate Social Media

By Danielle Tomson and David Morar

Instead of making decisions in private isolation, companies would do better by engaging one another and their users to shape content-moderation policies in a more transparent and consistent way. We propose a deliberative body, a “content congress,” where stakeholders-including companies, civil-society groups and even constituencies of end-users-could hash out best practices, air grievances, and offer rebuttals.

How would it work? Multistakeholder initiatives take varied forms, and we aren’t advocating for a specific one. We offer multistakeholderism because simple calls for government regulation or self-regulation are not enough-the public wants input. Such a body should not be a legally binding authority but an arena for transparent coordination, public representation and human engagement in an industry dominated by algorithms and machines. Companies want feedback; government wants more insight into decision-making; and people want to be heard…

Multistakeholder initiatives can be complex or slow, but they are preferable to the current slew of black-box content-moderation practices, or to heavy-handed government regulation. Many communities online-left, right and center-have experienced the arbitrary decision-making of powerful content platforms. These frustrated communities are starting to call their representatives to demand government action.

Companies would do well to be proactive by engaging each other and stakeholders in solution-making before government or courts step in. 

The Media 

National Review: ‘Uninhibited,’ You Say?

By Kevin D. Williamson

[H]undreds of newspapers on Thursday published editorials about the importance of a free press. The New York Times was among them, quoting William Brennan’s decision in Times v. Sullivan, which insisted that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Presumably, such “vehement, caustic, and sometimes unpleasantly sharp attacks” on public officials would include, inter alia, showing a film critical of Hillary Rodham Clinton while she was seeking the presidency, publishing material critical of the Obama administration’s climate policies, or advocating the protection of the right enshrined in the Second Amendment. But, of course, the people who are patting themselves on the back today for their championing of the First Amendment are the same people who have celebrated the suppression of such “uninhibited, robust, and wide-open” public discourse, often with the New York Times cheering them on.

In the first instance there is the case of Citizens United, a nonprofit advocacy group that was prohibited, in plain contravention of the First Amendment, from showing a film called Hillary: The Movie. The Supreme Court has affirmed that this was a violation of Citizens United’s rights under the First Amendment, and the response of the Democratic party – again, with the blessing of the New York Times – was to attempt to gut the First Amendment, which every Democrat in the United States Senate voted to do under the leadership of Harry Reid. In the second and third cases are the Democratic officials at the state and federal level who have been and are abusing their investigatory and regulatory powers to retaliate against organizations that are critical of certain global-warming and gun-control initiatives. 

New York Post: The media’s hatred of Trump is only hurting itself

By Michael Goodwin

I agree that Trump is wrong to call the media the “enemy of the people” and wish he would stick to less inflammatory words. His ­favorite charge of “fake news” makes his point well enough without any hint that he favors retribution on individual journalists.

But I am also concerned that media leaders refuse to see their destructive role in the war with the president. Few show any remorse over how the relentlessly hostile coverage of Trump is damaging the nation and changing journalism for the worse

While media manipulation hurts Trump’s popularity, there is a second, ironic impact: The skewed coverage is doing even more damage to public trust in the media itself.

A Gallup/Knight Foundation survey of 1,440 panelists earlier this year found adults estimating that “62 percent of the news they read in newspapers, see on television or hear on the radio is biased” and that 44 percent of “news” is inaccurate.

Separately, Axios and SurveyMonkey polled nearly 4,000 adults in June and found that 70 percent believe mainline news organizations report as news things “they know to be fake, false or purposely misleading.”

Among Republicans and GOP-leaning independents, an astonishing 92 percent harbor that distrust, as do 53 percent of Democrats.

And get this: Two-thirds of those who believe there is rampant false news say it usually happens because journalists “have an agenda.” Clearly, the distrust is not limited to Trump supporters.

Candidates and Campaigns 

Forbes: Wells Fargo Closes Florida Politician’s Account Due To Marijuana Donations

By Tom Angell

Wells Fargo, the fourth-largest bank in the U.S., fired Florida agriculture commissioner candidate Nikki Fried as a client this month because her campaign has received donations from “lobbyists from the medical marijuana industry,” according to copies of emails her campaign made public on Monday.

“As part of the onboarding of the client it was uncovered some information regarding the customers [sic] political platform and that they are advocating for expanding patient access to medical marijuana,” Antoinette Infante, a vice president and senior relationship manager at Wells Fargo, wrote in a July 11 email to the Fried campaign’s compliance officer.

After the campaign confirmed in a reply that Fried has indeed received contributions from cannabis industry leaders-and had no intention of stopping-Wells Fargo confirmed the closure of the account in an August 3 letter.

If the move represents a new companywide policy-whether or not it spreads to other banking institutions-it could have implications for dozens members of Congress and other politicians who regularly accept campaign contributions from people involved in the marijuana industry.

It could also affect the bank accounts for campaign committees and nonprofit groups working to advocate for marijuana policy change through legislatures and via ballot measures…

[Marijuana Policy Project] had its account closed by PNC Bank last year.

CBS News: Record number of women have won major party primaries

By Associated Press

Women are not just running for office in record numbers this year – they are winning.

More women than ever before have won major party primaries for governor, U.S. Senate and House this year – paving the way for November battles that could significantly increase the number of women in elected office and change the public debate on issues such as health care, immigration, abortion rights, education and gun control…

 One thing women have accomplished already is changing the tone and content of campaigns. They bring their children to rallies and some want their campaign money to pay for child care so they can run. On this count, Liuba Grechen Shirley, the Democratic candidate challenger to Republican Rep. Peter King, has succeeded. In May, the Federal Election Commission voted unanimously to allow the expenditure…

Beyond gender, these women are poised to usher in a wave of diversity next year.

Michigan will likely send the nation’s first Muslim-American woman to Congress, after Rashida Tlaib beat a crowded field of Democrats for the 13th Congressional District. No Republican is running in November for the heavily Democratic seat.

There are nearly 50 black women running for Congress this year, from Democrat Lucy McBath who is challenging GOP Rep. Karen Handel in Georgia to Republican Rep. Mia Love’s bid for a third term in Utah.

In Georgia, Stacey Abrams is aiming to become the nation’s first black female governor while Paulette Jordan would be the first Native American governor in U.S. history if she wins her race in Idaho. And Democratic voters in Vermont recently selected Christine Hallquist as their nominee, making her the first transgender candidate to win a major-party gubernatorial nomination.

New York Times: Michael Cohen, Trump’s Ex-Lawyer, Investigated for Bank Fraud Over $20 Million

By William K. Rashbaum, Ben Protess and Maggie Haberman

Investigators are also examining whether Mr. Cohen violated campaign finance or other laws by helping to arrange financial deals to secure the silence of women who said they had affairs with Mr. Trump. The inquiry has entered the final stage and prosecutors are considering filing charges by the end of August, two of the people [familiar with the matter] said…

It is unclear whether prosecutors might seek to charge Mr. Cohen with conduct related to the presidential campaign or his work for Mr. Trump.

Legal experts have said that the payments to two women who said they had affairs with Mr. Trump could become part of a campaign finance case… 

One of Mr. Cohen’s lawyers, Lanny J. Davis, revealed a possible piece of evidence for such a case last month when he released a recording of a September 2016 conversation Mr. Cohen had with Mr. Trump. On the recording, they discussed a $150,000 deal the tabloid publisher American Media Inc. struck with one of the women, the former Playboy model Karen McDougal…

Prosecutors have examined whether Mr. Cohen planned the payment in conjunction with A.M.I. to protect Mr. Trump’s election prospects, and they could use the recording as part of the basis for charges that the deal represented an illegal campaign contribution or that there was a conspiracy to make an illegal contribution…

Prosecutors could also charge that a $130,000 payment to the adult film actress Stephanie Clifford, better known by her stage name of Stormy Daniels, was improper.

Mr. Cohen paid Ms. Clifford out of his own pocket, and although Mr. Trump reimbursed him many months later, the initial outlay could also count as an illegal contribution to Mr. Trump’s candidacy, several legal experts have said.

The States

Idaho Press-Tribune: Lawmakers: Step up enforcement, fines for campaign finance violations

By Betsy Z. Russell

Lawmakers on an interim committee on campaign finance reform today called for sharply stepping up enforcement of fines for candidates who don’t file reports or don’t file them on time…

Idaho Secretary of State Lawerence Denney said he supports proposed legislation the panel is considering that would say fines “shall” be imposed, rather than making their imposition discretionary for his office. “I don’t particularly relish the idea of having the ability to fine one person and not another,” Denney said. He said that’s why when he first took office, he wasn’t fining anyone for late filings, though the law allows a $50-a-day fine. “But we did have a legislative audit that told us we should,” he told the committee. “That’s one of the findings that told us we’re not doing what the code said. So we do it with everybody.” His office then established a policy of sending a letter to notify late filers, and if they still don’t respond, imposing the fine; that essentially gives them a five-day grace period in most cases…

Denney said he’s fine with imposing fines right off, if everyone is aware that that’ll be the system. “Our hope is that we get the reports on time,” he said. “It’s not the fining that’s important to us. We want to get them on time.”

Rep. Fred Wood, R-Burley, said he favors following the model of a Utah law that removes candidates from the ballot if they don’t file their reports on time; two Utah candidates were removed during this year’s primary election. He also suggested upping the fines for late filings from $50 per day to $250 per day…

Sen. Mary Souza, R-Coeur d’Alene, said, “I just wanted to express my support for the fines that we have, and instituting those as soon as possible after the deadline. … But I am not in support of the Utah model. That goes a step too far.”

Mercury News: ‘Biggest rollback of campaign finance law’ weighed

By Dan Walters

The system broke down in the 1990s after voters passed legislative term limits. Long-term legislative and leadership careers became obsolete and eventually, interest groups and their lobbyists filled the power vacuum..

Political reform groups such as Common Cause reacted by sponsoring a 1996 ballot measure, Proposition 208, that imposed tight limits on campaign contributions.

The political professionals didn’t like it for obvious reasons and challenged it in court. And as the legal battle was being waged, the Legislature, with little warning, placed another measure, Proposition 34, on the 2000 ballot to succeed it.

It purported to be a reform, but actually made it easier for big money to flow indirectly into campaigns via “independent expenditures” and through political parties, thus protecting candidates from accountability for its source…

Term limits were modified a few years ago, and one effect is that legislative leaders, such as current Assembly Speaker Anthony Rendon and Senate President Pro Tem Toni Atkins, can hold their offices longer.

They clearly aspire to re-establish the centralized legislative leadership that had been eroded by term limits, and to do so, they want bigger roles in amassing and dispensing campaign funds to their favored legislators and candidates…

A late-blooming bill, Assembly Bill 84, would do exactly that, giving leadership campaign organizations the same status as political parties, and thus allowing them to raise and spend much more money.

Political reform groups oppose it, of course…

Interestingly, however, AB 84 also draws opposition from the California Democratic Party even though Rendon and Atkins are high-ranking leaders of the party, apparently because it would erode the party’s powerful role in financing campaigns provided by Proposition 34.

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