Daily Media Links 10/4: Will the Next Women’s March Be Taxed?, Five Years Ago Today: John Doe Raids Wisconsin, and more…

In the News

Washington Examiner: When it matters most, Americans can’t speak freely right before Election Day

By Eric Peterson

Oppose or support the confirmation of Judge Brett Kavanaugh to the Supreme Court, it seems everyone has an opinion about him. Yet at this crucial time when the public wants to speak their minds and be heard by their elected officials, obscure regulations stand in their way.

Because Election Day is now less than 60 days away, something called “electioneering communication” regulations add red tape for groups that urge citizens to contact any senator up for election in November.

Any other time, speakers can mention a lawmaker’s name in radio or TV ads and urge them how to vote on key issues. No paperwork, just free speech.

Of course, other rules apply for ads that urge the election or defeat of candidates. Advertisements like “Vote against Jane Doe” or “Support Representative Jones” are regulated as election campaign expenditures every day of the year.

Electioneering communication regulations trigger burdensome government reporting requirements. These kick in when an expenditure is made “for the purpose of furthering” a communication that mentions a candidate for federal office. The reports require that any donation to a group for that communication be disclosed to the public. This means paperwork for those who wish to speak. It also means violating the privacy of their supporters. Many simply choose to remain silent

As the controversy around Kavanaugh shows, the business of governing doesn’t just stop when candidates hit the campaign trail. When major issues are being decided, everyone should be free to speak their mind to those making the decisions, even if that includes mentioning a lawmaker who is up for re-election.

Electioneering communication requirements silence speech on key issues when it matters most. In the name of informed citizenship and freedom of speech, we should make these restrictions a thing of the past.

WOSU Columbus NPR: Dark Money and Politics (Audio)

Hosted by Ann Fisher

The U.S. Supreme Court last month ruled that nonprofit political groups must disclose the identities of any donor giving more than $200.

[Ed. note: While this has been widely reported, it is an incorrect explanation of

Judge Beryl A. Howell’s ruling. For a correction of this misinterpretation, see here. For a more detailed analysis of the ruling, see here.]

Many hailed the decision as a victory for political transparency, but many also still are concerned about the political influence of untraceable, corporate “dark money” in elections.  Today on All Sides: how dark money shapes the U.S. political landscape.

Guests:

Paul Beck, political scientist, The Ohio State University

Catherine Turcer, executive director, Common Cause Ohio

David Keating, president of the Institute for Free Speech, supports the deregulation of campaign finance

Michelle Ye Hee Lee, national political enterprise and accountability reporter, covering money and influence in politics, The Washington Post

New from the Institute for Free Speech

“Dark Money” Documentary Warns Viewers of the Dangers of Postcards

By Eric Peterson

Earlier this week, PBS aired the documentary, Dark Money. The film is directed and produced by Kimberly Reed…

The documentary spends an inordinate amount of its run-time focusing on the horrors of political mailers. The top villains behind these mailers are nonprofit groups like the National Right to Work Foundation and Western Tradition Partnership…

According to Montana investigative journalist, John S. Adams, these are the shadowy “dark money” groups that are buying elections in Big Sky Country.

At one point, Adams explains to viewers how dark money groups supposedly purchase democracy for corporations. Complete with a white board, Adams draws a line from a company giving money to what he calls a “dark money group,” which he labels a “Dark $ PAC/Issue” on his white board.” This group then spends money on mailers, which are sent to the voters of Montana…

Even with such terrifying tools as “metadata,” many academics believe the effectiveness of mailers is mixed at best.

The very idea that all it takes for corporations to “buy” elections and control the democratic process is donating to groups that then send out mailers borders on the insane.

Returning to reality, nonprofit groups with different agendas often send out competing communications extolling the virtues of one candidate’s preferred policies or voting record and criticizing another for opposing those same policies…

More than anything, voters respond to a candidate’s message. If those trekking to the polls don’t like a candidate’s vision, they’re not likely to pull the lever in their favor on Election Day.

First Amendment

American Prospect: Will the Next Women’s March Be Taxed?

By Eliza Newlin Carney

[T]he National Park Service [has proposed] plans to impose steep fees, waiting periods, and other new restrictions on protesters demonstrating on the National Mall and other public lands in the nation’s capital. The new rules would effectively ban protests in front of the White House, give government officials broad discretion to thwart permits, and force protesters to cover the costs of barricades, fencing, police monitoring, and even damaged grass.

Such costs could run from the tens into the hundreds of thousands of dollars, predicts Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund (PCFJ), a public interest legal organization that is spearheading a “Save Free Speech” campaign to block what it calls the “pay to protest” plan…

PCJF is also preparing for litigation “with the expectation that we will have to move swiftly,” says Verheyden-Hilliard, who argues that the proposed regulations defy numerous federal court orders that have blocked past Park Service attempts to hamstring protesters. The new rules would make it harder for protesters to erect stages, sound systems, and tables, and would make it easier for the Park Service to slow-walk approvals, according to PCJF. 

“When you think about the history of social change in America,” says Verheyden-Hilliard, “being able to march on Washington-to literally petition your government for redress of grievances-is anchored in these iconic locations.”…

The Park Service invited public comment on its plan, with a deadline of October 15. So far only about 1,000 comments have come in-far fewer than the 100,000 or so public comments that prompted the Interior Department to abandon its unpopular plan to raise peak-season entrance fees from $25 to $70 at more than a dozen national parks. But PCJF has gathered 1,300 signatures on a petition opposing the August 7 plan, and aligned progressive groups are rallying their members to submit comments.

Supreme Court

Wall Street Journal: GOP Confidence in Kavanaugh Confirmation Grows

By Natalie Andrews and Kristina Peterson

Senate Majority Leader Mitch McConnell (R., Ky.) has set up a preliminary vote on the judge for Friday, to be followed by a final vote over the weekend. The earlier vote, while procedural, is likely to reveal whether Judge Kavanaugh has the votes for confirmation.

The Courts 

Arkansas Democrat-Gazette: In suit, Arkansans say free-speech rights violated by state senator who blocked them on social media

By John Moritz

State Sen. Jason Rapert of Conway was sued in federal court Tuesday by four Arkansans who claimed their constitutional free-speech rights were violated when the Republican blocked them on social media.

The individuals – who each described themselves as atheists – said a complaint filed in the U.S. District Court for the Eastern District of Arkansas that they had been blocked from participating in discussions of Rapert’s public Twitter and Facebook pages.

Rapert is the founder of Holy Ghost Ministries, according to his campaign website.

Another plaintiff in the suit, American Atheists Inc., also operates Facebook and Twitter pages but had not been blocked by Rapert, according to the complaint.

“Defendant Stanley Jason Rapert has repeatedly deleted the comments of critics and restricted the participation of individuals critical of his statements and policy positions in public forums on social media such as Facebook and Twitter,” the lawsuit states.

The suit is based on a May ruling by U.S. District Judge Naomi Buchwald in New York, who ruled that President Donald Trump’s practice of blocking Twitter users violated the First Amendment.

Wisconsin John Doe

MacIver Institute: Five Years Ago Today: John Doe Raids Wisconsin

By Matt Kittle

Law Enforcement officers conducted predawn, armed raids on the homes of Wisconsin citizens in pursuit of “evidence” of campaign finance violations…

On Oct. 3, 2013, the politically driven probe known as “John Doe II” exhibited the full force of prosecutorial abuse, exhibiting why this secret investigation marked one of the darkest chapters in Wisconsin history…

What multiple courts found was that the scores of conservatives targeted were merely engaging in their First Amendment rights of political speech and association, just as left-wing organizations were freely permitted to do during Wisconsin’s bitter political recall season.

What multiple courts, including the Wisconsin Supreme Court, found was that the truly sinister, illegal conduct was perpetrated by “non-partisan” government agencies, like the former state Government Accountability Board and its hand-picked special prosecutor, and the Democrat-led Milwaukee County District Attorney’s office and its abusive prosecutors and investigators. 

Oct. 3, 2013 certainly remains fresh in the memory of the citizens who lived it. 

“It hasn’t slipped my mind. I think about it a lot,” said conservative activist Eric O’Keefe, whose Wisconsin Club for Growth was among more than two dozen right-of-center organizations spied on and harassed by government agents…

The speech chill remains five years later. 

Asked if the John Doe secrecy order has finally been lifted, O’Keefe answered, “That is not clear to me. I’m not sure.” 

That criminally enforced silence was arguably the most insidious aspect of an investigation ostensibly about campaign finance violations. Children subjected to government raids before the break of dawn were told that they and their parents could go to jail if they told anyone about the John Doe investigation. 

Intimidation

CNN: My husband, Rand Paul, and our family have suffered intimidation and threats

By Kelley Paul

An open letter to Senator Cory Booker:

It’s nine o’clock at night, and as I watch out the window, a sheriff’s car slowly drives past my home. I am grateful that they have offered to do extra patrols, as someone just posted our home address, and Rand’s cell number, on the internet — all part of a broader effort to intimidate and threaten Republican members of Congress and their families. I now keep a loaded gun by my bed. Our security systems have had to be expanded. I have never felt this way in my life.

In the last 18 months, our family has experienced violence and threats of violence at a horrifying level… 

Earlier this week, Rand was besieged in the airport by activists “getting up in his face,” as you, Senator Booker, encouraged them to do a few months ago. Preventing someone from moving forward, thrusting your middle finger in their face, screaming vitriol — is this the way to express concern or enact change? Or does it only incite unstable people to violence, making them feel that assaulting a person is somehow politically justifiable?

Senator Booker, Rand has worked with you to co-sponsor criminal justice reform bills. He respects you, and so do I. I would call on you to retract your statement. I would call on you to condemn violence, the leaking of elected officials’ personal addresses (our address was leaked from a Senate directory given only to senators), and the intimidation and threats that are being hurled at them and their families.

The States

AP News: South Dakota ethics measure supporters release first TV ads

By Associated Press

The campaign for a South Dakota government ethics constitutional amendment is urging voters to “fight corruption” and vote for the November ballot question in its first television ads of the race.

Represent South Dakota said in a statement that the two 30-second ads started airing this week, but didn’t disclose the total size of the buy. Both spots target allegations of scandal in South Dakota, saying the ballot question would rein in lobbyists and improve accountability.

Constitutional Amendment W would tighten campaign finance and lobbying restrictions, create an independent ethics commission and prevent the Legislature from altering or rejecting laws approved by voters without returning to the ballot, among other provisions.

Critics have raised concerns about the amount of power that would be given to the ethics panel.

Gotham Gazette: Closing the Door on Foreign Money in New York City Elections

By Letitia James, John Bonifaz and Shanna Cleveland

When Citizens United opened the floodgates for corporations to spend unlimited amounts in our elections, it also blasted open a loophole for foreign money to be used to influence U.S. elections. Earlier this month, we collaborated to introduce a bill to close that loophole and keep foreign money out of New York City elections…

Though Ellen Weintraub, the vice chair of the Federal Election Commission, has been sounding the alarm about this for years, partisan politics has stopped attempts in Congress and at the Commission to prevent foreign money from being funneled through corporations.

That’s why it is critical to move now to protect our local elections from corrupt foreign influence and to help create a national model for campaign finance reform. In order to protect the integrity of New York City elections, our bill — Intro. 7087 — would strengthen the existing federal prohibition on direct foreign and corporate campaign contributions by extending the ban to American corporations under substantial foreign ownership or control.

The bill would prohibit contributions and spending in local elections by “foreign-influenced entities,” which is defined as an entity that is either (1) more than 5 percent owned by a single foreign national, (2) more than 20 percent owned by more than one foreign national, or (3) a corporation in which foreign-national owners call the shots on its political activities. A similar proposal enacted in St. Petersburg, Florida received the backing of constitutional luminaries like Laurence Tribe and Charles Fried, and stands on firm legal ground.

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