David Keating

USA Today: Money spent in Brett Kavanaugh’s Supreme Court confirmation battle is good for democracy (In the News)

USA Today: Money spent in Brett Kavanaugh’s Supreme Court confirmation battle is good for democracy By David Keating America enters a generational Supreme Court nomination battle divided. But one aspect of the fight over nominee Judge Brett Kavanaugh shows our democracy is as vibrant as ever: the effort to persuade Americans reflects the unique speech bazaar […]

Filed Under: David Keating, In the News, Published Articles

SCOTUSblog: Wednesday round-up (In the News)

By Edith Roberts
In an op-ed for The Hill, David Keating and Thomas Wheatley urge the justices to review the appeal of Rod Blagojevich, the former governor of Illinois, arguing that “[t]he disputed jury instructions [given in Blagojevich’s criminal trial] pose risks to honest politicians and ordinary people who get active in election campaigns.” 

Filed Under: David Keating, In the News, Quotes IFS, Thomas Wheatley

The Hill: Supreme Court can reinforce free speech with Rod Blagojevich case (In the News)

By David Keating and Thomas Wheatley
[F]ederal courts around the country are interpreting two Supreme Court decisions differently…
When Supreme Court Justice Sonia Sotomayor was a Second Circuit appeals court judge, she explained how to resolve the high court rulings. Proof of an express promise isn’t necessary when the payment goes in the pocket of the official, such as cash or a gift.
But if a campaign contribution is made, the First Amendment demands a higher standard of an explicit promise. That’s common sense, but the judge in the Blagojevich trial failed to give the jury such instructions. Using a lower standard for criminal prosecutions for campaign contributions would deter many from donating or running for office. It would enable more politically-motivated criminal prosecutions that interfere with election campaigns.
In 2014, the Supreme Court said that the “First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association. When an individual contributes money to a candidate, he exercises both of those rights.”
In that context, it makes sense to provide additional protections for campaign contributions. Not distinguishing the two gives politically-motivated prosecutors too much leeway, and could subject even small donors to criminal liability.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

Maine Wire: Maine’s campaign laws hurt a free press (In the News)

By David Keating and Thomas Wheatley
Under Maine campaign law, an independent expenditure is “any [independent] communication that expressly advocates the election or defeat of a clearly identified candidate[.]” Even worse, the law assumes any mention of candidate in any communication within 28 days of an election is an independent expenditure. Independent expenditures over $250 must be reported to the government…
To get the exemption as a periodical publication, a publication must have been publishing “for at least the previous twelve months” on a “variety of topics[.]” Alternatively, outlets must have “a record” of publishing such content and persuade a group of bureaucrats to decide they will “continue to be published” after the election. In addition, exempt media can’t be owned or controlled by a party, PAC or candidate, and must publicly disclose “the names of the persons or entities who own, control, and operate” it…
The statute requires the press be exempt from reporting requirements, but only vaguely discusses which entities fall under the exemption. That leaves the Commission with broad discretion. Yet rather than creating a wide exemption that maximizes free press rights, the Commission has instead elected to adopt demanding criteria that threaten the creation of new media sources.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

The Hill: Did you enjoy ‘Fire and Fury’? Thank Citizens United for it (In the News)

By David Keating and Thomas Wheatley
Wolff’s book is indisputably speech funded by a corporation and is scathingly critical of President Trump. Had the Citizens United turned out differently, the Federal Election Commission (FEC), with just an administrative sleight of hand, could have constitutionally placed Wolff’s publisher in the agency’s crosshairs.
It does not matter the book was released in January, far removed from any primary or general election. Express advocacy paid for by a corporation’s general treasury funds was banned regardless of proximity to an election. Although the book makes no explicit calls for voters to support or oppose Trump, it could easily be argued that it is the “functional equivalent” of express advocacy because it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” And Trump has already declared his candidacy for 2020.
What’s more, when deciding whether a communication constituted express advocacy, the FEC, prior to Citizens United, looked for whether the communication took a position on an “office holder’s character, qualifications, or fitness for office.” …
Although Citizens United concerned an electioneering communication, the broader ban on corporations using general treasury funds for express advocacy struck down by the Court applied to all forms of media – including books.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

Orlando Sentinel: Probable cause is not a bludgeon for the thought police (In the News)

By David Keating and Thomas Wheatley
When former U.S. Marine Corps officer Fane Lozman approached the lectern during a Riviera Beach City Council meeting to air his grievances as a citizen, he didn’t suspect he’d be hauled out in handcuffs.
Yet only a few seconds into his speech, that’s exactly what happened. His arrest triggered a First Amendment retaliation lawsuit now before the U.S. Supreme Court, which heard arguments last week. The case has important implications for citizen activists and journalists alike…
Now the court will decide whether probable cause for an arrest can stop such a retaliation claim.
For the sake of the freedoms of speech and press, the answer must be no. Instead, the court should consider the presence of probable cause holistically without automatically extinguishing a First Amendment claim.
Granting probable cause such weight gives government a powerful tool to punish critics. With so many laws on the books, it is often easy to find probable cause for an arrest…
Of course, none of this is to say that probable cause should never defeat a First Amendment retaliation claim. But it shouldn’t disqualify it. Let’s hope the court recognizes this and sides with Lozman.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

Washington Post: D.C.’s Fair Elections Act would give more power to the already powerful (In the News)

By David Keating and Thomas Wheatley
Not only is Mayor Muriel E. Bowser (D) right in calling it a waste of money, but also the measure is nothing more than a grand experiment likely to turbocharge the power of special-interest groups and incentivize fraud by candidates.
For starters, the proposal is biased in favor of a new form of political entity called a “Fair Elections Committee.” The fine print allows for contributions from “membership organizations” (labor unions) to count as small-dollar donations. Candidates who receive financial support from a “membership organization” may still receive public financing, but a candidate who gets a similar donation from, say, a small business won’t. The provision was so blatantly discriminatory that the ACLU of the District of Columbia rightly opposed that provision, saying, “Labor unions do not have greater First Amendment rights than other kinds of organizations.” …
In addition, the measure is obviously an exercise in incumbency protection. An incumbent with an established donor base and prior familiarity with D.C.’s political machinery would have a clear advantage over a political newcomer. The Fair Elections Act exacerbates that advantage by affording incumbents the chance to raise tax-matched donations earlier than challengers who emerge later in the election cycle.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

Washington Post: D.C.’s Fair Elections Act would give more power to the powerful (In the News)

By David Keating and Thomas Wheatley
The so-called Fair Elections Act of 2017, a measure that would provide a five-to-one tax financing match to small-dollar donations to D.C. candidates, cleared committee this month. The sponsor markets the proposal as “giving more people a bigger voice.”
That’s nonsense. The bill proposes a grand experiment with unpredictable impact. There’s a good chance that it will turbocharge the power of special-interest groups in D.C. campaigns, giving fewer interests a dominant voice. It also could incentivize fraud, which could lead to a collapse of public confidence.
The proposal is biased in favor of a new form of special PAC. The fine print allows for allocations from labor unions to count as contributions from individuals, and thus may be considered small-dollar donations. The provision not-so-subtly prohibits similar contributions from partnerships and small-business owners. The D.C. ACLU noted “labor unions do not have greater First Amendment rights than other kinds of organizations.” But the potential constitutional defect remains.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

The Hill: Facebook and the new Red Scare (In the News)

By David Keating and Paul Jossey
Various interests have seized on Russian chicanery to push “reforms” lacking priority in less neurotic times. Sens. Amy Klobuchar (D-Minn.) and Mark Warner (D-Va.) sent a “Dear Colleague” letter seeking new rules for online ads. The resulting bill would burden internet speech with suffocating rules, even possibly banning some forms of online speech. Instead of hitting the Russians, the bill instead targets American speech, press and assembly rights guaranteed by the First Amendment. In short, despite the dearth of candidate references in the Russian ads, there is already a rush to chill the world’s most dynamic speech forum…
In the rush to respond, we have to remember the most important values, which are our rights to freely speak, publish, listen, read and watch. That’s the real risk of an irrational response, whether the threats come from new laws or more speech cops at Facebook…
The government should focus on ensuring that our voting machinery is safe from foreign hackers. Protection is also needed to prevent foreign agents from stealing internal candidate campaign communications. But when the issue is speech, we must exercise great caution lest zeal to curb foreign influence instead damages our own free speech rights.

Filed Under: David Keating, In the News, Paul Jossey, Published Articles

Wall Street Journal: Proposed Legislation to Boost Online-Ad Disclosures Draws Criticism (In the News)

By Julie Bykowicz
Sen. Mark Warner (D., Va.) and Sen. Amy Klobuchar (D., Minn.) introduced a bill last week that proposed online disclosure and reporting requirements for any political entity that spends more than $500 in a given year on a platform that has a major audience…
“The idea that we’re going to allow a group of regulators, a group of bureaucrats to regulate what we will be able to see in terms of social media or other formats offends me and I will certainly oppose that in any way I can,” Rep. Paul Mitchell (R., Mich.) said at a hearing this week about online advertising.
David Keating, president of the Center for Competitive Politics, which advocates for less campaign finance-regulation, said Mr. Warner’s plan is “basically a campaign finance bill taking advantage of the controversy of Russian speech in our election cycle.”
He said it would make it tougher for Americans to participate in politics by potentially increasing the cost of social-media advertising that small groups use as online companies may pass on the costs of the mandated screening…
The FEC has reopened its comment period on rules for online advertising-something it has largely avoided regulating over the years.

Filed Under: David Keating, In the News, Quotes CCP

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