New from the Institute for Free Speech
By Eric Peterson
A recent event at the Cato Institute examined the controversial question, “Can Free Speech be Progressive?” The query was posed by professor Louis Michael Seidman of Georgetown University Law Center in his recent article for the Columbia Law Review. This paper is another in a series of articles and op-eds questioning the value of free speech and the First Amendment for the progressive cause. Also speaking on the panel, which was moderated by the Cato Institute’s John Samples, were Robert Bauer from NYU Law School and Ronald K. L. Collins from the University of Washington School of Law.
Professor Seidman’s opening remarks touched on a variety of issues from politics to First Amendment law to what it means to be a progressive to First Amendment exemptions for media corporations.
While these issues merit discussion, it’s worth focusing on Seidman’s primary claim that unequal distribution of wealth is the problem that should erode progressive support for free speech and the First Amendment. Because of this unequal distribution, Seidman contends the conversation is dominated by the few speakers who have the resources to make themselves heard. Furthermore, he believes these speakers are least likely to be progressive.
As an example, Seidman alluded to Roger Ailes and Rupert Murdoch using their resources to start Fox News in support of a conservative agenda.
Unfortunately for Seidman, this proposition fails to hold up in our modern society.
It’s true that the ability to speak is not equally distributed. Those with the resources to start a cable news channel or buy a newspaper can certainly spread their views more widely than others.
But the domination of speech by a few large players has been declining for some time, and that decline is accelerating.
Congress has required this Court, sitting en banc, to hear constitutional challenges to the Federal Election Campaign Act in the first instance. This is an unusual role for an appellate court to play, and highlights Congress’s insistence that constitutional questions relating to that Act be heard swiftly and resolved clearly. It also, quite reasonably, raises questions of judicial economy.
Congress did not create the 52 U.S.C. § 30110 procedure in a vacuum. The Federal Election Campaign Act also created the Federal Election Commission (“FEC” or “Commission”), an agency empowered with a range of administrative tools. Those powers are available, and have been used, to implement judicial opinions and provide guidance to American political actors. In response to an opinion by this Court in the instant case, these tools can be applied to limit the need for extensive, burdensome follow-up litigation under the § 30110 process.
But, of course, there is no guarantee that the FEC will do so-and some indication that it will not. Consequently, the Constitution and the needs of judicial economy counsel in the same direction. This Court should issue a clear ruling for the Plaintiff, one that does not rely upon a regulatory response by the Commission or invite wasteful follow-up litigation.
Politico: Kavanaugh moves toward confirmation vote
By Burgess Everett
Republicans steamrolled Democratic attempts’ to hinder the progress of Supreme Court nominee Brett Kavanaugh on Thursday, as the high-court pick moved ever-closer to being confirmed by the Senate.
Senate Judiciary Chairman Chuck Grassley set up a final committee vote for President Donald Trump’s high court pick for a Sept. 20 panel vote. The full Senate will vote on Kavanaugh shortly after, as soon as the last week of September.
Senate Democrats tried to delay committee business in a last-ditch bid to stall the Supreme Court nominee, but Grassley seized control of the committee upon its opening and immediately moved to tee up a vote on Kavanaugh next week. Republicans also defeated six Democratic motions to subpoena Kavanaugh’s documents from his time working in the White House.
Washington Post: How Brett Kavanaugh could help create an era of rampant corruption
By Paul Waldman
In recent years, conservatives have been systematically chipping away at any and all restrictions on the ability of corporations and wealthy individuals to funnel money into campaigns, an effort Kavanaugh enthusiastically participated in as an appeals court judge. Though it happened most famously with Citizens United in 2010, which allowed corporations to spend unlimited amounts to influence elections, there have been a series of decisions providing more avenues for money to flow into campaigns with fewer and fewer restrictions.
The essential principle undergirding campaign finance law is that the potential for money to corrupt the process of governing is a serious enough threat that it justifies restricting that money’s flow. What conservatives have done in recent years is to define the potential for corruption in narrower and narrower terms, saying that it won’t be corrupting, for instance, if a billionaire spends money to help a candidate get elected but doesn’t actually communicate with that candidate about the details, or it won’t be corrupting if corporations do the same. The one place they haven’t yet gone is to remove the restrictions on direct contributions to candidates, which are now capped at $2,700 per election.
But Kavanaugh could be coming for direct contributions, too…
There’s a legitimate and complex question about whether we should allow the ordinary operation of politics to become criminalized (see the case of Don Siegelman). And in the McDonnell case, even the liberal justices believed the governor hadn’t given enough of a quo in exchange for the quid he received, especially given Virginia’s lax laws on gifts officeholders can receive.
Wall Street Journal: Ninth Circuit vs. Free Speech
By Editorial Board
The Ninth Circuit Court of Appeals struck again Tuesday, handing California’s Attorney General the power to intimidate political donors.
The Americans for Prosperity Foundation in 2016 convinced a federal judge to impose a permanent injunction against the California AG’s demand that nonprofits hand over the unredacted names of their donors. The group, which is connected to businessmen Charles and David Koch, argued that the state had no legitimate law-enforcement interest in obtaining the names.
Judge Manuel Real agreed and found that the AG’s failure to protect donor names put the foundation’s members and donors at risk of harassment and retaliation.
A Ninth Circuit panel swept past the trial evidence to vacate the injunction and reverse Judge Real. The judge had noted that the Attorney General struggled “to find a single witness who could corroborate the necessity of [donor names] in conjunction with their office’s investigations.” The Ninth Circuit panel brushed this aside on grounds that the AG had a “strong interest” in donor names to investigate fraud.
The lower court also found that the Attorney General had “systematically failed to maintain the confidentiality” of donor names, noting that thousands were posted on the AG’s public website. No less than the progressive NAACP filed an amicus brief on behalf of the foundation, listing the Supreme Court’s precedents on the damage to speech rights that can accompany forced disclosure. Most famously, in NAACP v. Alabama in 1958, the High Court protected the NAACP’s membership lists from disclosure to the state government.
The Ninth Circuit waved aside the security lapses and dismissed the “undeniably” real threats against foundation supporters, claiming it isn’t a “foregone conclusion” that harm would result from disclosure.
By Maxine Bernstein
Firing a Springfield police officer who refused to sign an agreement barring her from saying or writing anything negative about the department or the city violated her First Amendment right to free speech, a federal appeals panel found.
The 9th U.S. Circuit Court of Appeals sent the case back to a federal judge in Eugene to determine whether the city of Springfield is liable for the police chief’s decision to restrict Officer Thelma Barone.
The chief offered Barone a “last-chance agreement” after she was suspended: She could return to work only if she didn’t criticize police, the city or its staff in writing or in her speech.
The appellate panel said the restriction was too broad, essentially prohibiting the officer from criticizing any city service — water quality or taxes, for instance.
The ruling also raised the question of whether a general Springfield police order — saying officers “shall not publicly criticize or ridicule” the department, its policies or its members — also violates their First Amendment rights.
The 9th Circuit, though, said it wouldn’t specifically address that issue because the general policy wasn’t part of the appeal.
Wall Street Journal: Senate Confirms Charles Rettig as IRS Commissioner
By Richard Rubin
The Senate confirmed Charles Rettig to run the Internal Revenue Service…
The Senate voted 64-33 in favor of Mr. Rettig’s confirmation. All Republicans who were present joined with 15 Democrats to back the nomination…
“Recent memory reminds us just how important it is that all Americans get a fair shake from the agency that oversees the tax code,” said Senate Majority Leader Mitch McConnell (R., Ky.)
Republicans led the drive to punish the agency after 2013, when the IRS said it gave extra scrutiny to some conservative groups applying for tax-exempt status. Republicans claimed partisan motivations; independent and bipartisan analyses focused on mismanagement.
The agency’s senior leaders resigned, and the IRS revamped some of its policies for handling nonprofits. However, bitterness and congressional investigations lingered through the term of John Koskinen, President Obama’s choice to rebuild the IRS…
Democrats had few objections to Mr. Rettig himself. They used the debate over his nomination to highlight concerns with the 2017 tax law and with an IRS decision to let some nonprofit groups involved in politics submit less information about their donors.
By Julia Conley
After Sen. Susan Collins (R-Maine) described a fast-growing fund that will go toward defeating her in 2020 if she decides to vote in favor of Supreme Court nominee Brett Kavanaugh as a form of “bribery,” the backers of that effort say such a reaction by the senator is clear proof she doesn’t understand the concept of democracy.
“The idea of Susan Collins attacking an effort by 35,000 small dollar donors as bribery is politics at its worst,” Marie Follayttar of Mainers for Accountable Leadership said in a statement. “Thousands of Mainers are trying desperately to tell her that she needs to protect abortion access and critical healthcare coverage across the country by voting ‘no’ on Kavanaugh…Unlike Supreme Court judges, senators do not enjoy a lifetime guarantee of their seat; they are accountable to the people.” …
Jonathan Berkon, an attorney specializing in election law, defended the fundraiser and its proponents against what he called a “bogus legal threat.”
“Through this grassroots effort, Mainers are making clear to Senator Collins that they will defeat her for reelection if she defies the will of the people and votes to confirm Judge Kavanaugh,” Berkon said. “The First Amendment guarantees their right to do so. And federal law protects their right to pool their funds together now, when enthusiasm is at its peak, so that their campaign against a well-funded, four-term incumbent is viable two years from now.”
Portland Press Herald: Our View: Sen. Collins mistakes free speech for bribery
By Editorial Board
There has been a lot of talk recently about what legal precedents are up for grabs and what is “settled law.”
But there hasn’t been much dispute when it comes to the money spent on politics: According to the Supreme Court, it’s free speech. That was first established in Buckley v. Valeo in 1976, and it’s been restated and expanded multiple times since then, most notably in the 2010 case known as Citizens United, which found that even corporations have a First Amendment right to spend money on electioneering.
So, it’s surprising to see Sen. Susan Collins claim that a crowdfunding campaign designed to influence her vote on the Supreme Court confirmation of Judge Brett Kavanaugh amounts to a “bribe,” when it’s really the kind of political speech that wealthy donors have been practicing legally for decades…
This is not an attempt to buy Collins’ opposition to Kavanaugh, but it does give ordinary people an opportunity to get on the record saying that they plan to hold her accountable for this vote. It’s an opportunity that 36,000 people had taken by Tuesday, raising more than $1 million, with about three-quarters of the donations coming in the increment of $20.20, a numerical reminder of the upcoming election.
By Philip Wegmann
The Montana Democrat likes to condemn money in politics almost as much as he likes to accept campaign cash from lobbyists…
According to the Center for Responsive Politics, Tester regularly ranks as the No. 1 recipient of cash from lobbyists…
Tester wants his constituents to think of him as that one farmer they sent away to Washington. The aw-shucks senator talks about how corporate money drowns out the voices of “a rancher from Sidney, a nurse in Kalispell or a schoolteacher in Anaconda.” But the truth is that the senator from Big Sky Country knows how to work a big room and how to work over a corporate lobbyist like the best of them.
This hasn’t gone without notice. The National Republican Senatorial Committee knocked Tester over the head over his lobbying money – and at the time of the ad, Tester was in fact number one in lobbyist money…
When asked whether or not the swamp had sucked him under like the NRSC argues, Tester balked, telling the Associated Press “that’s bull.” But it is actually a matter of public record.
Until he was recently overtaken by another Democrat, Sen. Sherrod Brown of Ohio, Tester had the ignoble distinction of having taken the most lobbying money this cycle. This can’t be explained away by the fact that Tester faces a tough reelection though. As the AP reports, Tester took more than half a million lobbying dollars in 2012, more than even then House Speaker John Boehner, R-Ohio.
By Eric Levitz
[O]n Wednesday, the Education Deparment announced that certain beliefs are too valid to be scrutinized on campus – and other ideas, too offensive to be voiced in college classrooms.
Trump’s Education Department first adopted this position last month, when it decided to change its definition of anti-Semitic speech. In a newly revealed letter, the department’s Civil Rights division announced that, from now on, it will use The International Holocaust Remembrance Alliance’s “working definition” of anti-Semitism when investigating allegations of discrimination on campus.
That definition names the following speech acts as potential examples of “anti-Semitism in public life”:
“Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.”
In the aforementioned letter, Kenneth Marcus, the head of DOE’s Office of Civil Rights, announced that the department will reopen a 2014 investigation into allegations of anti-Semitism at Rutgers – which the Obama administration had previously closed citing insufficient evidence – “in light of the [new] definition of anti-Semitism.”
It is hard to imagine a clearer example of a “government censor” imposing an official truth on universities – for the sake of sparing sensitive students the discomfort of scrutinizing their beliefs – than the Education Department’s new policy.
Honolulu Civil Beat: Bigger Fines Considered To Send Campaign Lawbreakers A Message
By Nathan Eagle
The five-member state Campaign Spending Commission plans to formally review staff guidelines on how much to fine candidates for various violations after seeing more late and erroneous filings…
The commission doled out nearly $21,600 in fines Wednesday to 51 candidates, political action committees and super PACs that filed false campaign finance reports, turned them in late or committed other infractions.
Most of the candidates were fined for either not filing or submitting a late statement of information for electioneering communications. These reports are supposed to be submitted within 24 hours of signing a contract for an ad buy, such as TV commercials, newspaper ads or social media promos…
The commission also tried unsuccessfully to get the Legislature to clarify the law, which many candidates said was confusing. Some understood it to mean the reports were due 24 hours after their ad ran, not when the contract was signed, which often happens months in advance…
Debi Hartman of UHPA told the commission that she does not think anyone purposely chose to not file their electioneering statements late. She said the mistake had everything to do with confusion over the law.
“Misery loves company,” she said. “And this is one of those miserable laws.”
Hartman said UHPA will be working with the commission to propose changes to the law next legislative session, which starts in January…
Commission Executive Director Kristin Izumi-Nitao said the commission definitely plans to submit another bill next session.
Gary Kam, the commission’s legal counsel, suggested changing the law so the electioneering statements are due 24 hours after the ad runs instead of after the contract is signed.