By Dowd Muska
Over the weekend, Dede Feldman, a “former member of the New Mexico Senate who served for 16 years and was the sponsor of many state campaign finance laws,” penned a column attacking Gary Johnson for announcing his senatorial candidacy at an event sponsored by Elect Liberty, a Salt Lake City-based independent-expenditure political entity.
Predictably, Feldman charged that Johnson was able to appear at a Super PAC shindig because Citizens United v. FEC, a 2010 U.S. Supreme Court decision, “opened the door not just for unlimited, and in many cases undisclosed, campaign donations, but for a vague interpretation of campaign finance laws that created more loopholes than any enforcement agency could track.”
Technically, Feldman is incorect. While Citizens United set the precedent, Super PACs, such as Elect Liberty, were created by SpeechNow.org v. FEC, a unanimous decision by the D.C. Circuit Court of Appeals.
But let’s not quibble over details. Feldman admitted that “everything Johnson is currently doing is legal,” but lamented that prior to Citizens United, “there were safeguards in place that both required transparency and limited the ability of corporate interests to influence elections.”
Some of us don’t see the First Amendment as a “loophole” that requires “safeguards.” As the Institute for Free Speech explained:
“Though campaign ads are often derided as a nuisance, political spending can have positive effects for democracy. Studies have found that higher campaign spending increases voter participation in state legislative elections, and ‘that exposure to campaign advertising produces citizens who are more interested in the election, have more to say about the candidates, are more familiar with who is running, and ultimately, are more likely to vote.’ These effects suggest that super PAC spending can improve democracy by increasing Americans’ engagement in the political process.”
By Dowd Muska
By Anne K. Walters
Non-profit organizations involved in political campaigns had to begin disclosing their donors this week after the U.S. Supreme Court decided not to stop a lower court’s ruling from taking effect. The end of the long-standing policy, which shielded the identities of most donors, pleased advocates of campaign reform but also raised free speech concerns as midterm congressional elections approach in November.
Decades-old Federal Election Commission regulations said advocacy organizations, such as pro-life or anti-tax groups, advocating on behalf of or against specific candidates did not have to report the names of most of their donors.
The Supreme Court declined late Tuesday to stay a ruling by a federal district court that overturned that rule. The case dates to a 2012 effort by Citizens for Responsibility and Ethics in Washington (CREW) to discover the identities of donors behind a push by Karl Rove’s Crossroads GPS group for a Republican candidate in Ohio…
Crossroads and the FEC had hoped to prevent the lower court’s ruling from taking effect until they could appeal to avoid a change in rules just as the midterm election campaigns ramp up. Chief Justice John Roberts had issued a temporary stay, but the full court declined to continue it.
Crossroads has argued the move would force it and other groups “to choose between exercising their long-protected free speech rights and thereby incurring severe legal risks-including potentially violating their donors’ privacy-or remaining silent.” …
The Institute for Free Speech, which advocates for fewer campaign finance restrictions, claimed the decision creates serious privacy, operational, and legal risks.
“It’s unfair to change rules about political speech in the middle of a campaign, and many organizations have already run [ads] during the current campaign,” the institute said.
By Editorial Board
Last month, U.S. District Court Chief Judge Beryl A. Howell ruled in CREW’s favor. In her ruling, the judge said that the federal regulation that allowed the anonymous contributions conflicted with federal statute – and that the law should prevail.
With the midterm elections right around the corner, Crossroads went to the Supreme Court for an emergency stay – which Chief Justice John Roberts granted on Saturday, halting the lower court’s action. But on Tuesday, the full court vacated Roberts’ stay, allowing Howell’s ruling to stand. The order from the high court gave no reasons and did not note any dissenting votes…
Not everyone was celebrating the decision: A piece on The Atlantic’s website quoted David Keating, the president of the Institute for Free Speech, as saying that the decision could result in the affected organizations simply not spending money in the midterm elections. For those organizations, Keating argued, the decision would have the effect of limiting their speech. But the argument strikes us as hollow: These organizations can still spend money on campaigns, but no longer can do so anonymously. And surely the public benefit of disclosure outweighs any discomfort the organizations might endure.
This could be a temporary victory for transparency, however. For one thing, the original case remains under appeal. For another, as Ellen Weintraub, the vice chairwoman of the Election Commission noted, it would be a surprise if clever lawyers weren’t already hard at work looking for loopholes in the case.
Filed Under: In the News
Washington Post: Political nonprofits must now name many of their donors under federal court ruling after Supreme Court declines to intervene (In the News)
By Michelle Ye Hee Lee and Robert Barnes
The high court did not grant an emergency request to stay a ruling by a federal judge in Washington who had thrown out a decades-old Federal Election Commission regulation allowing nonprofit groups to keep their donors secret unless they had earmarked their money for certain purposes…
In an interview, FEC Chairwoman Caroline Hunter said that the names of certain contributors who give money to nonprofit groups to use in political campaigns beginning Wednesday will have to be publicly reported.
Hunter and other conservatives warned the decision could have a chilling effect just as the midterms are heating up.
“It’s unfortunate that citizens and groups who wish to advocate for their candidate will now have to deal with a lot of uncertainty less than two months before the election,” said Hunter, a Republican appointee…
David Keating, president of the Institute for Free Speech, which opposes campaign finance restrictions, predicted many nonprofit groups will turn to super PACs as a solution.
“They may just take the money they have allocated for this and then decide to just give contributions to super PACs that are going to be active in the races and on the issue that they agree on,” Keating said…
Conservatives said the decision to throw out the FEC rule raises First Amendment concerns about donor privacy.
“If speakers can’t rely on regulations as written, that chills speech. Additionally, it’s unfair to change rules about political speech in the middle of a campaign, and many organizations have already run [independent expenditure ads] during the current campaign,” according to the Institute for Free Speech.
By Astead W. Herndon
Alliance for a Better Utah, a progressive nonprofit, filed the complaint with the Federal Election Commission and sent a detailed letter to the commission’s general counsel and the chief of the public integrity section at the Department of Justice’s criminal division. The letter, which comes after the commission forced Ms. Love to acknowledge that some of her primary funds had been improperly raised, argues that Ms. Love’s “actions are a betrayal of the public trust and of Utah voters,” and “should be subject to criminal penalties.” …
Former F.E.C. commissioners said that even with the progressive alliance’s new complaint against Ms. Love, it is unlikely she will experience additional consequences. The bar is extremely high to prove criminal wrongdoing in campaign finance cases, they said.
“It seems like she’s already acknowledged impropriety and agreed to remove and not keep some of the money, I just don’t see this as something the F.E.C. would spend its resources on,” Ann Ravel, a Democrat who served as the organization’s commissioner under former President Barack Obama.
A Republican counterpart agreed.
“This is going to be pretty tough for them to find anything really against her,” said Bradley Smith, a former head of the commission under former President George W. Bush. “Love’s campaign may have tried to game the system, but if you can game the system – you game the system.”
By Dave Levinthal and Sarah Kleiner
“This is a real victory for transparency,” said Ellen Weintraub, the vice chairwoman of the Federal Election Commission. “As a result, the American people will be better informed about who’s paying for the ads they’re seeing this election season.” …
Others believe voters will wind up with less information before they cast their ballot in November. David Keating, the president of the Institute for Free Speech, which supports the deregulation of campaign finance, said the decision will almost certainly throw a wet blanket on independent expenditures from now to the November 6 midterm elections.
“We think that’s a real prospect-that a number of groups are going to choose silence rather than speech-and there are good reasons why they would do that,” Keating said. “Certainly not all but most of these groups may come to the conclusion this is too risky: ‘Our donors gave us money under the assumption they would remain confidential, and we don’t want to do things that would make them not give us money anymore.'”
Weintraub said it wouldn’t be surprising to see some groups “come up with clever ways of getting around the rules.” She expects FEC commissioners to come together soon in an effort to clarify which donors need to be disclosed.
Institute Names Research Director, Communications Director, Media Manager Alexandria, VA – The Institute for Free Speech (IFS) today announced promotions for three staffers. Scott Blackburn, Luke Wachob, and Alex Baiocco will now serve as Research Director, Communications Director, and Media Manager, respectively. “This is a great opportunity to expand IFS’s research portfolio,” said Blackburn, who […]
‘Russia Hoax’ author Gregg Jarrett and former FEC chairman Bradley Smith join ‘Life, Liberty & Levin’ to discuss campaign finance laws.
The Hill: Watchdog groups to file complaint against Montana candidate alleging coordination with NRA (In the News)
By Lisa Hagen
Campaign finance watchdog groups are planning to file a complaint with the Federal Election Commission (FEC) asking it to investigate whether Montana GOP Senate nominee Matt Rosendale and the National Rifle Association (NRA) were illegally coordinating.
The Campaign Legal Center and Giffords, the nonprofit political arm of former Rep. Gabby Giffords’s (D-Ariz.) organization, said it is filing the complaint on Friday or Monday.
The complaint is being filed after the Daily Beast published audio it obtained that suggests Rosendale knew the NRA would be involved in the marquee Senate race, saying it had obtained it from an unspecified July event in Washington, D.C. …
But Brad Smith, a former Republican FEC commissioner who was nominated by President Clinton, said he doesn’t believe this is coordination. He added that based on the transcript of the audio, it didn’t appear that Rosendale and his campaign were involved in “crafting the message” of the ad.
“There’s nobody following politics for more than 30 seconds that doesn’t know that in Montana, gun rights and the Supreme Court nomination are going to be important issues,” Smith told The Hill. “It doesn’t rise to that level of material involvement in the kind of plans of sharing information and working in concert.”
Fox News: President Trump ‘not going to survive’ testimony by Paul Manafort, former Obama ethics czar predicts (In the News)
By Gregg Re
Norman Eisen, who served as White House Special Counsel for Ethics and Government Reform in the Obama administration, flatly predicted that President Trump wouldn’t “survive” Manafort’s testimony…
Last month, President Trump’s former lawyer and personal fixer Michael Cohen also pleaded guilty to federal charges, admitting to violating campaign finance laws by arranging hush money payments to adult film star Stormy Daniels and former Playboy model Karen McDougal “at the direction” of then-candidate Trump.
But legal experts were split on the significance of the plea, because campaign finance laws are notoriously murky, and Cohen’s plea does not necessarily indicate that prosecutors could have successfully prosecuted a campaign finance case against Cohen or Trump. Cohen was also accused of violating numerous other banking and fraud laws, and could have pleaded guilty to the campaign finance charge to lighten his potential sentence, experts said.
And a former chairman for the Federal Election Commission has said that campaign finance laws are often an unfair lose-lose proposition for candidates, which is why they are often pursued as civil matters, rather than criminal ones.
“Suppose Trump had used campaign funds to pay off these women,” former FEC chairman Bradley Smith wrote in The Washington Post. “Does anyone much doubt that many of the same people now after Trump for using corporate funds, and not reporting them as campaign expenditures, would then be claiming that Trump had illegally diverted campaign funds to ‘personal use?'”
But on Sunday, Eisen suggested that Manafort may be able to help Mueller show something more nefarious than technical violations of obscure campaign finance laws.