Daily Media Links 10/9: California’s Assault On Fundraising Has National Impact, Commission Finds Violations by 2 Groups Backing Dunleavy, and more…

In the News

People’s Pundit Daily: Conservatives Celebrate, Liberals Lament Kavanaugh Confirmation

By PPD Staff

The nonpartisan Institute for Free Speech, previously known as the Center for Competitive Politics, is a nonprofit 501(c)(3) organization that “promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government.” The Institute previously conducted an extensive analysis of Justice Kavanaugh’s record on the First Amendment and released a statement after the confirmation.

“In twelve years on the U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh established himself as a firm defender of a robust First Amendment and free speech,” said Institute for Free Speech Chairman Bradley A. Smith. “We believe that record will continue on the nation’s highest court.”

People United for Privacy: Private citizens in Wisconsin were harassed because of their beliefs (Video)

Conservative groups and Governor Scott Walker were successful in bringing reforms to Wisconsin, and that upset a lot of people. As a result, government officials worked in secret to make those conservatives’ lives a living hell. When someone’s personal information is exposed and they are harassed because of the causes they support, lives can be devastated and free speech is threatened.

[Featuring IFS Chairman and Founder Bradley A. Smith]

New from the Institute for Free Speech

Institute for Free Speech Challenges South Dakota Law Regulating Speech about Ballot Measures

The Institute for Free Speech yesterday filed a lawsuit in federal court saying that a South Dakota law regulating speech about ballot measures is unconstitutional. The Institute seeks to publish an objective analysis of two ballot measures – Constitutional Amendment W and Initiated Measure 24 – that the group says implicate First Amendment rights. But the Institute fears criminal prosecution under a recently adopted South Dakota law if it does so. The group is asking the court to strike the law down or clarify that it does not apply to the Institute’s analysis.

“If the First Amendment protects anything, it should protect speech about threats to the First Amendment. South Dakota’s sweeping regulation of speech about ballot measures strikes at our core values and violates constitutional rights,” said Institute for Free Speech Chairman and former Federal Election Commission Chairman Bradley A. Smith.

South Dakota law regulates any expenditure for any communication “concerning” a ballot measure. Nearly any speech about the topics of ballot questions might be regulated under such a vague standard. That means the law could apply far beyond ads advocating a measure’s defeat or approval, and may include publications such as the Institute’s analysis.

“The Institute’s analysis is not a political ad in any sense of the term. But South Dakota’s law is so broad that it may even regulate lengthy, academic publications. In regulating so broadly, South Dakota has left the realm of campaign finance regulation and directly threatens Americans’ right to publish,” said Institute for Free Speech Legal Director Allen Dickerson…

The case, Institute for Free Speech v. Jackley, et al., is before the United States District Court for the District of South Dakota, Central Division.

Verified Complaint in Institute for Free Speech v. Jackley, et al. (District Court for the District of South Dakota, Central Division)

The Institute for Free Speech (“IFS”) challenges for nonconformity with the First Amendment of the United States Constitution South Dakota’s regulations regarding what the state denominates an “independent communications expenditure,” S.D. Codified Laws § 12-27-1(11), and that provision’s attendant reporting disclosure and on-communication disclaimer requirements.. .

The uncertainty of S.D. Codified Laws § 12-27-1(11)’s reach and the burdens mandated by S.D. Codified Laws § 12-27-16 chill the speech of IFS, as South Dakota Laws place IFS in the uncertain position of wondering if publishing its analysis will force illegal and burdensome donor disclosure and compelled speech requirements on IFS or have IFS risk criminal liability.

Compounding the vagueness problem for IFS, South Dakota law also does not allow private groups like IFS to obtain formal guidance from either the Attorney General or the Secretary of State. Consequently, a judicial declaration is the only way for IFS and its employees to obtain guidance whether they could face criminal liability under South Dakota Laws. 

In addition to vagueness problems, South Dakota Laws are not narrowly tailored to any state interest under strict and exacting First Amendment scrutiny and cannot be applied lawfully to the IFS’s proposed analyses of South Dakota proposed law and constitutional amendment. A declaration from this Court is needed to assure that IFS may speak without fear of prosecution by South Dakota.

Therefore, this action seeks this Court’s declaration that S.D. Codified Laws § 12-27-1(11) cannot be constitutionally applied to IFS’s publication activity, and IFS seeks from the Court injunctive relief that the unconstitutional South Dakota Laws may not be applied to it. 

Motion for a Temporary Restraining Order and Preliminary Injunction in Institute for Free Speech v. Jackley, et al. (District Court for the District of South Dakota, Central Division)

Among its other activities, IFS publishes studies concerning the impact of proposed government policies on citizens’ rights of “core political speech.” Verified Compl. (“VC”) ¶¶ 12, 15-22. South Dakota currently has measures on the ballot that may restrict those rights. IFS brings the current action because South Dakota’s existing legal regime inhibits IFS’s planned legal analysis of those measures-not political ads, but rather a substantial publication that would examine the measures at length, but would not urge voters to cast their ballots in any particular way. Id.

South Dakota law burdens IFS’s publication in two ways. At the outset, existing regulations-specifically, the state’s effort to regulate any “communication[] concerning . . . ballot questions”-pose insurmountable vagueness problems and sweep far broader than can be justified by any relevant governmental interest. S.D. Codified Laws § 12-27- 1(11) (emphasis added). Second, these laws unconstitutionally require IFS to convey the government’s message, including a list of its top five contributors. Because South Dakota does not require any connection between a listed donor and the regulated communication, this requirement will inevitably capture donors who gave to generally support IFS, and who had no involvement with, or even prior notice of, IFS’s publication. Consequently, listing them as the “sponsors” of IFS’s published work will affirmatively mislead the public, while necessarily doing nothing to help inform the state’s voters. The First Amendment does not permit the state to impose these burdens on the right to speak and publish. 

Statement of IFS Chairman Bradley A. Smith on Confirmation of Judge Kavanaugh to Supreme Court

The Institute for Free Speech released the following statement in reaction to today’s Senate confirmation of Judge Brett Kavanaugh to the U.S. Supreme Court:

“In twelve years on the  U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh established himself as a firm defender of a robust First Amendment and free speech,” said Institute for Free Speech Chairman Bradley A. Smith. “We believe that record will continue on the nation’s highest court.”

The Institute for Free Speech previously conducted an extensive analysis of Judge Kavanaugh’s record on the First Amendment. That analysis is available here.

Supreme Court

Wall Street Journal: Conservative-Dominated Supreme Court Fulfills Nixon-Era Dream

By Jess Bravin

When Justice Brett Kavanaugh took the bench Tuesday, it marked the culmination of the Republican Party’s 50-year drive to cement a conservative majority on the Supreme Court.

Little in Tuesday’s proceedings suggested such significance. Chief Justice John Roberts offered a brief welcome to Justice Kavanaugh before the court settled in for two workaday cases on sentencing.

Over time, however, Justice Kavanaugh is expected to provide a consistent vote to implement the conservative movement’s legal agenda in a range of areas where the Supreme Court has failed to produce ideologically consistent results, despite Republican presidents having appointed 14 of 18 justices since 1969…

Georgetown law professor Randy Barnett said that “there’s a chance it’s epochal, because for the first time in our lifetimes a conservative majority will be self-described originalists and textualists,” referring interpretations that focus on a provision’s original meaning or precise words.

But Mr. Barnett downplayed liberal fears that Justice Kavanaugh’s arrival would mark an across-the-board change. “People forget that Justice Kennedy was conservative too, with libertarian leanings in certain areas” such as gay rights, he said.

The Courts

The Nonprofit Times: California’s Assault On Fundraising Has National Impact

[T]he United States Court of Appeals for the Ninth Circuit sitting in San Francisco reversed a lower court decision that had entered a permanent injunction against the State of California forcing two 501(c)(3) nonprofits to reveal their list of donors to the Attorney General of the State of California.

A variety of nonprofits filed amicus (friend of the court) briefs in the case Americans For Prosperity Foundation v. Xavier Becerra, in his official capacity as attorney general of California, including the NAACP Legal Defense and Education Fund which had won a similar case in the Supreme Court of the United States in 1958 (NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)) when the state government of Alabama attempted to secure a list of donors to NAACP.

Apparently, this precedent was insufficient to deter the Ninth Circuit’s ruling. Writing for the panel of the Ninth Circuit, Judge Raymond C. Fisher wrote: “Considered as a whole, the plaintiffs’ evidence shows that some individuals who have or would support the plaintiffs may be deterred from contributing if the plaintiffs are required to submit their Schedule Bs to the Attorney General. The evidence, however, shows at most a modest impact on contributions. . . . The mere possibility that some contributors may choose to withhold their support does not establish a substantial burden on First Amendment rights.”

FEC

Fox News: Watchdog presses FEC for audit on Maxine Waters fundraising practices

By Fred Lucas

The National Legal and Policy Center, a conservative watchdog group, filed a complaint with the Federal Election Commission against Waters, her campaign and a pro-charter school group called Families and Teachers for Antonio Villaraigosa – which backed the former Democratic mayor of Los Angeles.

The pro-Villaraigosa group paid $25,000 to the Citizens for Waters Committee on May 25 to include Villaraigosa in her slate mailer, according to the complaint. FEC guidelines, however, say only a candidate’s committee can pay for the mailers – sample ballots traditionally mailed out to about 200,000 voters in Los Angeles highlighting whom Waters supports…

Legally, candidates are paying a reimbursement for the slate mailer, rather than buying an endorsement. But it’s difficult to prove whether the Waters endorsement comes as a result of the payment or if already endorsed candidates are paying for their share, Adav Noti, a former FEC assistant general counsel, recently told Fox News while explaining the peculiar process…

Federal law technically limits individual campaign contributions to $2,700 to a candidate’s committee and $5,000 to a political action committee. But the mailers are treated differently. A 2004 FEC advisory opinion, signed by Democratic FEC Commissioner Ellen Weintraub, set guidelines for how those mailers can be funded…

The FEC opinion stated that the payments from other candidates “would not constitute support of, or in-kind contributions to, any federal candidate appearing in the brochure, so long as the authorized committee of that federal candidate reimburses the Waters Committee.”

Fundraising

Washington Post: Susan Collins calls donations to her future opponent a ‘classic quid pro quo’ to extort her

By Kristine Phillips and Eli Rosenberg

Sen. Susan Collins (R-Maine) said a crowdfunding campaign that has now collected millions of dollars in pledges to defeat her in 2020 is a “classic quid pro quo” and a violation of federal bribery laws.

“I think that if our politics has come to the point where people are trying to buy votes and buy positions, then we are in a very sad place,” Collins said Sunday on CBS’s “60 Minutes.”

A group of liberal activists began the campaign last month to pressure Collins, a key swing vote in now-Justice Brett M. Kavanaugh’s nomination, to vote against President Trump’s nominee. If Collins voted no, donations would not be taken from the donors. If she voted yes, the pledges would fund the campaign of the Maine Democrat who wins the nomination for the Senate seat in two years.

Collins’s office immediately called the campaign an attempt to extort her into making a decision.

“They are asking me to perform an official act and if I do not do what they want, [money] is going to go to my opponent,” she told “60 Minutes.”

Collins on Friday announced she would support Kavanaugh’s nomination…

After Collins’s announcement, pledges inundated the crowdfunding site Crowdpac, causing it to briefly crash.

By Monday morning, the campaign had surpassed $3.5 million in pledges from about 121,000 donors – not an insignificant amount for a political race in a state with one of the smallest populations in the country (1.3 million)…

Marie Follayttar, co-director of Mainers for Accountable Leadership, denounced bribery accusations, saying attacking an effort by thousands of small-dollar donors is “politics at its worst.”

Independent Groups

Politico: The Hidden Money Funding the Midterms

By Maggie Severns and Derek Willis

The move worked like this: Start a new super PAC after a deadline for reporting donors and expenses, then raise and spend money before the next report is due. Timed right, a super PAC might get a month or more undercover before being required to reveal its donors. And if a super PAC launches right before the election, voters won’t know who’s funding it until after they go to the polls.

The strategy – which is legal – is proving increasingly popular among Democrats and Republicans… 

[S]uper PACs are increasingly figuring out methods of temporarily masking donor identities that are either legal or fall into gray areas that rarely attract regulators’ attention.

One tactic is the one Mountain Families PAC used, which is likely to be replicated for the general election. A new super PAC that starts between Oct. 18 and Nov. 6 could spend money right before Election Day without having to disclose its donors until after the midterm results are tallied. (There are 11 super PACs that together have spent at least $5.8 million since the primaries but should begin disclosing their donors on Oct. 15, when the next FEC filing is due.)

Another involves going into debt to pay for advertising and other campaign-related activities, and fundraising later to pay off those debts. A super PAC that does this would not have to disclose donors until well after the money is spent.

Candidates and Campaigns 

New York Times: Wall Street Is Booming Under Trump. But Many of Its Donors Are Embracing Democrats.

By Shane Goldmacher

[F]or the first time in a decade, the broader financial community is on pace to give more money to Democratic congressional candidates and incumbents than their Republican counterparts, according to data from the Center for Responsive Politics, a nonpartisan group that tracks campaign donations.

Some of the same grass-roots energy coursing through the Democratic Party – House candidates from Kentucky to Montana to New York are reporting record sums of small donations – has spilled into the corporate boardrooms of American finance, even amid increasingly hostile rhetoric from Democrats in Washington and on the campaign trail toward Wall Street…

Four years ago, in the last congressional midterm, Republican incumbents and candidates outraised Democratic counterparts by more than $50 million in direct donations from the broader finance, insurance and real estate industries, according to the Center for Responsive Politics. And in 2016 and 2012, Republicans outraised Democrats from that group by nearly $50 million and $100 million respectively, the data show. This year, Democrats held a narrow $5 million advantage through the middle of the year…

Giving to once-obscure House candidates is suddenly in vogue, with Democratic donors saying it has never-seen-before cachet in finance circles.

“What I have never seen in my lifetime is the level of energy for all these local races,” said Orin Kramer, a veteran Democratic fund-raiser and founder of a hedge fund. “I’ve never seen such an appetite for candidates who people have never heard of.”

“It’s not a matter of degree,” added Mr. Kramer, who has contributed to the House Victory Project and hosted events of his own. “It’s a phenomenon that hasn’t existed before.”

The States

U.S. News & World Report: Commission Finds Violations by 2 Groups Backing Dunleavy

By Becky Bohrer, AP

The Alaska Public Offices Commission has found that two groups supporting Mike Dunleavy for governor violated campaign finance laws.

The commission Friday assessed penalties of $4,450 each against the Republican Governors Association and Families for Alaska’s Future-Dunleavy. The commission said it could revisit the penalty amounts.

Gov. Bill Walker’s campaign alleged the RGA had set up Families for Alaska’s Future-Dunleavy, in part, to shield its donors from public disclosure.

The commission found the groups, in reserving ad time, violated a prohibition on making expenditures without first registering with the commission.

The commission also found that Families for Alaska’s Future-Dunleavy failed to file accurate reports related to the reserved ad time. 

An attorney for the groups, Stacey Stone, noted the commission wasn’t unanimous in its decision.

Los Angeles Daily News: LA City Council favors reducing barriers to campaign matching funds

By Craig Clough

The Los Angeles City Council has given preliminary approval to major changes that would lower the bar for what is required of candidates to receive taxpayer matching campaign funds, while also increasing the amount they could get.

Existing rules require city candidates who want access to matching funds to collect donations from at least 200 contributors, although some of the contributions can be as low as $5. But the changes under consideration would lower the number of required contributors to 100, while increasing the maximum amount of matching funds each candidate can receive and significantly increasing the rate at which they receive them…

The rule changes would also eliminate the need for candidates to get signatures in order to quality for matching funds.

Currently, qualified candidates who collect 500 valid signatures – which is also the number required to qualify for the ballot – during the nominating petition process receive a match rate of 1:1 in the primary and the general election, and qualified candidates who collect 1,000 valid signatures receive a match rate of 2:1 in the primary and 4:1 in the general.

The new rules would let all qualified candidates receive a match rate of 6:1 in the primary and the general, and the total amount candidates can receive in matching funds would also increase.

Vail Daily News: Amendment 75 aims to close loophole in Colorado’s campaign finance law

By Scott Miller

Depending on who you ask, this fall’s Amendment 75 is either a matter of fairness or a way to allow still more money into state elections.

In short, the amendment attempts to cut the campaign spending advantage held by wealthy candidates. If a candidate puts more than $1 million of his or her own money into a campaign, then individual contributors to other candidates for the same seat would be able to put five times the current limit – $1,150 – toward those candidates.

Speak Your Mind

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