Daily Media Links 10/5: The First Amendment Moral In Trump’s Criticism Of Mass Media, FEC guidance to limit impact of dark money court ruling, and more…

In the News

Ballotpedia: North Dakota Measure 1, Ethics Commission, Foreign Political Contribution Ban, and Conflicts of Interest Initiative (2018)

The Institute for Free Speech (IFS), formerly known as the Center for Competitive Politics, published a report authored by Senior Fellow Eric Wang in August 2018 analyzing Measure 1…

“- The initiative proposes reporting requirements for any speech, communication, or publication that may “influence any …election” or “state government action.” Such a law appears to be unconstitutionally vague and overbroad…

– The initiative’s reporting requirements would also appear to require filings by media organizations for any news reporting or opinions that could “influence any …election” or “state government action.” …

– Regulated speakers may be subject to extensive and intrusive requirements to report their funding sources akin to tracing the source of a river to the first drop of water. It is unclear how for-profit corporations would comply with these requirements and whether customers, investors, or lenders would need to be reported. Likewise, it is unclear whether media corporations would also have to report their subscribers and advertisers…

– By possibly encompassing such a broad and undefined universe of speech and funding sources, the initiative’s reporting requirements are unlikely to satisfy the U.S. Supreme Court’s “exacting scrutiny” standard for compulsory disclosure laws;

– The initiative would create a new North Dakota Ethics Commission, which would go into existence without any implementing legislation and without any limits on its powers or standards governing its conduct of investigations…

– The initiative would create a private right of action for any North Dakota taxpayer to enforce the constitutional amendment’s reporting provision. A federal court recently ruled that a similar system in Colorado was unconstitutional.”

The full report can be read here.

First Amendment

Forbes: The First Amendment Moral In Trump’s Criticism Of Mass Media

By Fred Campbell

President Trump’s criticism of mass media offers a refresher course in the First Amendment’s purpose and practical operation. Too many pundits and policymakers are flunking the course, including former FCC chairman Tom Wheeler, who championed the agency’s repealed net neutrality regulations.

The Press Clause of the First Amendment prohibits Congress from making any law that abridges the freedom of the press. This command is based on a simple insight: the government can’t control what it is powerless to regulate. Mr. Wheeler ignored this premise when he decided that the broadband internet, the most powerful form of mass media ever known, should be subject to the law of “common carriage” under “Title II,” the most intrusive form of government regulation ever known.

The more power government officials have to regulate mass media, and the more discretionary that power is, the more likely it is that the government (or some subset of it) will use that power for its (or their) own ends. Politically sophisticated officials know that merely raising the threat of discretionary government regulation (usually behind closed doors) can be enough to influence a media company’s behavior, a practice known as “censorship by proxy” or “de facto censorship.” This form of censorship gives government officials a means of circumventing the First Amendment that’s difficult to prove in court and can be done without the public knowing that censorship has occurred. The effectiveness of government regulatory threats may be amplified when used against internet intermediaries, who are likely to have “fragile commitments” to the free expression rights of other speakers.

Censorship by proxy is a powerful strategy for government control over the speech that marshals public opinion, but only so long as the government’s regulatory threat is credible. 

Supreme Court

Wall Street Journal: Brett Kavanaugh Wins Enough Support for Confirmation

By Natalie Andrews and Kristina Peterson

Sen. Susan Collins of Maine, the last undecided Republican senator, said in a floor speech Friday that she would vote for Supreme Court nominee Brett Kavanaugh, delivering the key 50th vote for the judge and ensuring that he will have enough support to get confirmed this weekend.

Sen. Joe Manchin, a West Virginia Democrat facing a tough re-election, also said he would vote for Judge Kavanaugh.

Ms. Collins had voted earlier in the day to advance Judge Kavanaugh in a procedural vote, but hadn’t said how she would vote on his final confirmation…

Ms. Collins’s support for Judge Kavanaugh means that Sen. Lisa Murkowski of Alaska is expected to be the sole Republican to oppose him, while Mr. Manchin will be the only Democrat to vote yes. That leaves the nominee with a 51-49 advantage.

Earlier Friday, another late-deciding Republican, Sen. Jeff Flake of Arizona, told MSNBC that he would support Judge Kavanaugh.

A foreshadowing of the final vote, expected late Saturday afternoon, was provided by Friday’s procedural measure. Judge Kavanaugh prevailed in that procedural vote 51-49, with Ms. Collins and Mr. Manchin voting yes.

FEC

Washington Post: FEC guidance to limit impact of dark money court ruling

By Brian Slodysko, AP

With a month to go until midterm elections, the Federal Election Commission on Thursday issued new guidance governing the flow of untraceable campaign cash to so-called “dark money” groups.

It’s the FEC’s response to a recent U.S. District Court decision that found the agency improperly allowed “social welfare” nonprofits to skirt disclosure requirements for some donors. But for campaign finance activists who hailed the August ruling as a transparency victory, Thursday’s guidance was sure to disappoint.

“A lot of people were very excited when (the case) first came out,” said FEC Commissioner Ellen L. Weintraub, a Democrat. “But when you get into the weeds, one has to acknowledge that the opinion is not as broad some people had hoped.”

For starters, both the opinion and the new guidance only apply to donors who give money for “independent expenditure” ads that advocate for, or against, a particular federal candidate. It doesn’t apply to “issue ads” that can be just as hard-hitting… 

The FEC memo is also narrow in scope. Its impact is likely limited to about 20 nonprofit groups that continued to spend on independent expenditures after the court ruling took effect in September. Others stopped running ads as a precaution, but even those who didn’t are likely to find creative legal ways to avoid revealing donors, campaign finance experts predict…

Despite the bold language, which activists seized on, Weintraub said it wasn’t as encompassing as many thought.

“I wish the decision would have been the death knell for all dark money, but (it) really didn’t go that far,” she said.

Intimidation

The Atlantic: Prosecute Those Making ‘True Threats’ Against Ford and Kavanaugh

By Conor Friedersdorf

When Christine Blasey Ford appeared before the Senate last week, she testified that her greatest fears about going public with sexual-assault claims were realized upon receiving messages that shook her to her core. “My family and I have been the target of constant harassment and death threats,” she said. “People have posted my personal information and that of my parents online. This has resulted in additional emails, calls, and threats.” They fled their home and acquired guards.

Meanwhile, the U.S. Marshals Service “is investigating threats against Supreme Court nominee Brett Kavanaugh and his family,” according to Time. The Wall Street Journal reports that it reviewed two emails sent to the nominee’s wife: “One of the notes to Mrs. Kavanaugh, a town manager in the suburbs of Washington, D.C., reads, ‘May you, your husband and your kids burn in hell.’ The other, whose subject line reads, ‘Hi, Ashley,’ says she should tell her husband to ‘put a bullet in his … skull.'”

Most Americans agree that such behavior is abhorrent. The subset of hateful messages that cross the line into “true threats” is unlawful. And those messages harm not only recipients, but whole societies, as citizens made aware of intimidation tactics resolve to participate less in public life…

The First Amendment protects lots of hateful, morally odious missives (including “May you, your husband, and your kids burn in hell” and “Tell your husband to kill himself”). Authors of merely odious messages should be left alone by police…

Those who intentionally threaten prominent civic actors chill political speech…

Allowing both to be threatened with impunity is more chilling, in my estimation, than successfully prosecuting egregious lawbreakers.

Candidates and Campaigns 

Mic: Democratic House candidates are posting millions in record-setting fundraising hauls

By Emily C. Singer

Multiple Democratic House candidates have reported raising multiple millions of dollars from July to September. These are totals that House candidates used to raise in an entire two-year election cycle.

“It reflects the enthusiasm out there, particularly on the Democratic side, and the passion that Democratic partisans feel,” Stu Rothenberg, a nonpartisan political handicapper with Inside Elections, said in an interview. “It’s one thing to vote for someone, it’s another to answer a poll to say you’re going to vote for someone, it’s another thing when you answer the door when a candidate knocks. But none of those compare to digging deep and sending money.” …

Candidates who post massive fundraising hauls also have a competitive edge. This is thanks to campaign finance laws that require television stations to give candidates a better ad rate than super PACs and other outside groups. PACs and other outside groups also are forbidden from allowing the candidate to make direct appeals in their ads, which is limiting in the kind of messages they can send.

“Campaign consultants will tell you that candidates can make better use of money than the super PACs can, because they can put the candidate in a campaign ad in a way the super PACs can’t, and they get more value,” Rothenberg said.

Given the influx of spending from super PACs such as the Congressional Leadership Fund, which is tied to House Speaker Paul Ryan, Democratic candidates with big bucks to spend can directly refute the GOP attacks on air…

Of course, money isn’t everything.

Candidates have to have the right message and fit the districts they’re running in. And at a point, there are diminishing returns on campaign cash, especially if a candidate has either been defined early, or goes up on air too late to make a difference.

The States

St. Louis Public Radio: Former Greitens advocate group wants lawsuit seeking records tossed out

By Marshall Giffin

St. Louis-based attorney Elad Gross filed suit in June against A New Missouri. He said he took action after the Missouri House committee that had been investigating the former governor halted its probe after Greitens’ resignation from office. The committee was also seeking records from A New Missouri, including its financing.

Attorney Catherine Hanaway, who represents the group, argued that Gross has no standing to file suit…

Hanaway says Gross is trying to expand the law beyond its original intent.

“Missouri law says you have to have a benefit coming to you, and you have to have had a harm done to you to make a claim – he has neither,” she said. “Federal law says we couldn’t have provided it to him on an individual basis – he’s not even close to making a [legitimate] claim here.”

Cole County Circuit Judge Jon Beetem told Hanaway and Gross that it would be at least two weeks before he could issue a ruling.

Gross also criticized Missouri Attorney General Josh Hawley for not filing a consumer protection lawsuit against A New Missouri, and said that if Hawley doesn’t take action, he will file a suit.

Mary Compton, spokesperson for the attorney general’s office, said late Thursday that the Missouri Ethics Commission has the authority for enforce campaign finance laws and that it’s currently investigating the group.

CNBC: New York attorney general says Trump caused his Trump Foundation charity to break the law as she seeks to ban president from non-profits for a decade

By Dan Mangan

New York state Attorney General Barbara Underwood in a new court filing Thursday said that President Donald Trump caused his charitable foundation to break state and federal laws governing non-profit groups.

Underwood said Trump’s actions in that regard, and his use of the Trump Foundation “for his own personal benefit,” justified her request to ban him for 10 years from being involved in any non-profit group.

“Donald J. Trump used his control over the Donald J. Trump Foundation for his personal, business and political interests in violation of federal and state law governing charities,” Underwood said in the filing in state Supreme Court in Manhattan.

The filing was a memorandum opposing Trump’s effort to dismiss a lawsuit Underwood filed in June against the president, his three adult children and the foundation, claiming “a pattern of persistent illegal conduct” for more than a decade…

Underwood’s petition accuses the foundation of “extensive unlawful political coordination” with Trump’s presidential campaign…

Her suit was followed a month later by a separate probe of the foundation opened by New York state tax officials.

KTVA Anchorage: APOC considers legal definition of ‘expenditure’

By Angela Krenzien

In the race for governor, the Alaska Public Offices Commission is behind closed doors considering testimony it heard Thursday on allegations of campaign finance misconduct.

The claims come from Gov. Bill Walker’s campaign against two groups supporting Republican candidate Mike Dunleavy: the Republican Governors Association and Families for Alaska’s Future. 

The question is over about $1.5 million in TV advertising contracts that Walker’s campaign says were negotiated before the RGA or Families for Alaska’s Future were registered with APOC.

Those groups argue that since no money was exchanged and there was no promise to exchange money, those contracts don’t meet the definition of “expenditure” under Alaska law and so can’t be considered violations.

The commission went into executive session Thursday afternoon to consider both sides and will provide a written report within two days.

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