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.
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
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.
‘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.
By Ryan Lovelace
Law firm moves, news and notes:
The Institute for Free Speech added Parker Douglas as senior attorney this week, following his time in the Office of the Counselor to the Chief Justice of the U.S. Supreme Court.
Douglas was a 2017-18 Supreme Court fellow and formerly served as Utah federal solicitor and chief of staff to Utah Attorney General Sean Reyes. He also previously practiced law in Latham & Watkins’ Supreme Court and appellate section. Douglas will expand IFS’s litigation on First Amendment issues, according to a release from the group.
Filed Under: In the News
Washington Post: Is attempting to sway Susan Collins’s vote breaking the law? It’s hard to tell. (In the News)
By Bradley Smith
The first relevant statute is 18 U.S.C. 201, which prohibits any person from “corruptly” offering “anything of value to any public official . . . with intent to influence any official act.” The organizers and donors here clearly want to influence an official act – Collins’s vote on Kavanaugh. But are they doing so “corruptly”?
Others have suggested the statute doesn’t apply because the funders are not offering anything to Collins – they’ll be giving it to someone else. Is it a “thing of value” to not give money to a candidate’s opponent?
I think the answer to each of these questions is a clear “no.” Few would consider it an illegal bribe, for example, if an advocacy group threatened to turn out 100,000 opposition voters unless the officeholder went the right way on a crucial issue. But could an ambitious U.S. attorney get an indictment or a plea bargain on the theory that this is a corrupt offer of “anything of value”? I’m guessing probably yes. Whether a jury would convict is another question.
These uncertainties illustrate the dangerous complexity of our public corruption and campaign-finance laws. Americans should not have to consult a lawyer before engaging in political advocacy but, too often, they do, and even then, the answers are not always clear…
Then there is the Maine People’s Alliance, which is also an incorporated entity. Thanks to the Supreme Court’s Citizens United v. Federal Election Commission decision, the group can spend money urging votes for or against a candidate. But it is still prohibited by law from using its corporate resources to raise funds for a candidate’s campaign, meaning the Alliance may have run afoul of the law. It wants to overturn Citizens United but, perhaps, it should be calling to expand it.
CNN: GOP Senate candidate’s comments raise questions about potential campaign finance violations (In the News)
By David Wright and Dan Merica
A Republican Senate candidate in Montana is facing questions over comments he made suggesting he knew of the National Rifle Association’s plans to be involved in his race — a move that experts say could violate campaign finance laws meant to prohibit campaigns from coordinating with outside groups.
The comments, recorded on audio first published by the Daily Beast and subsequently obtained by CNN, features the candidate, Matt Rosendale, talking about Chris Cox, a chief strategist with the NRA’s Institute for Legislative Action, and the group’s plans to support his challenge against Democratic Sen. Jon Tester, a red-state incumbent up for re-election in the fall…
Jennifer Baker, director of NRA-ILA public affairs, said that “at no time did NRA-ILA discuss any communications or activities beyond our membership with Matt Rosendale or his campaign. Any assertion otherwise is completely false.”
According to FEC regulations, there is a “three-prong test” to determine illegal coordination: payment, content and conduct. All three prongs must be met for coordination to be established…
The Rosendale campaign referred CNN to Brad Smith — a Republican former FEC commissioner nominated by President Bill Clinton — who said he had listened to the audio and had heard “absolutely nothing wrong.”
“That is not coordination in any way,” he said. “Just telling people we expect to be involved in your way is not coordination in any way.”
He added: “I just didn’t hear anything that even remotely would have made me concerned as an attorney.”
Washington Post: Koch-backed charity must reveal donor list to California officials, appeals panel rules (In the News)
By Michelle Ye Hee Lee
The panel of the U.S. Court of Appeals for the 9th Circuit reversed a district judge’s ruling that the group, Americans for Prosperity Foundation, does not need to submit a list of its donors to a state registry…
“We are disappointed by the Ninth Circuit’s latest decision and believe it imperils people’s First Amendment right to freedom of speech and of association,” AFP Foundation spokesman Bill Riggs said in a statement…
“I think the decision is appallingly wrong,” said David Keating, president of the nonprofit Institute for Free Speech, which opposes limits on political speech. “Basically, the panel is saying there’s no right to privacy in California if you speak on anything. The implications of that are pretty chilling and pretty stunning.” …
In 2016, a district court judge sided with the Koch group, saying the disclosure requirement created a chilling effect for donors and infringed on their First Amendment rights, and that there was ample evidence that state officials have made “careless mistakes” handling confidential donor information.
In Tuesday’s ruling, Judge Raymond C. Fisher disagreed…
Fisher ruled that collecting the donor information is in the state’s interest and does not create a burden on donors’ First Amendment rights because it is “collected solely for nonpublic use, and the risk of inadvertent public disclosure is slight.”
Fisher acknowledged that some donors may be deterred from contributing to the charity as a result of the requirement, but said it would result in a “modest impact on contributions.”