By Carrie Salls
Newspapers like the Washington Post and the Baltimore Sun filed a lawsuit Aug. 17 against the members of the Maryland State Board of Elections and Maryland Attorney General Brian Frosh, challenging a new state law that imposes strict guidelines on publishers that publish political advertisements.
The suit was filed in the U.S. District Court for the District of Maryland and joining the Post and Sun are several other publishers, as well as the Maryland-Delaware-D.C. Press Association.
“This action challenges multiple provisions of a newly enacted Maryland statute, the Online Electioneering Transparency and Accountability Act, that purport to impose new, onerous requirements upon online publishers like plaintiffs who publish political advertising, along with various penalties if they do not comply,” the complaint said…
Wiley Rein LLP attorney Eric Wang is not in favor of Maryland’s law, which he said was supposed to serve as a guide for other states.
“If the new Maryland law was meant to be a model for other states to regulate online political speech, as its sponsors claimed, then we are not off to a good start,” Wang told Legal Newsline. “The law put politics ahead of good policy and was rushed through the legislature with little understanding of its provisions or its practical implications.”
Wang said he wrote an analysis of Maryland’s legislation when it was still in bill form “warning about the bill’s serious deficiencies, but the members of the General Assembly didn’t care.”
“The newspaper companies have put together an aggressive and serious challenge to the law, and I hope they succeed,” he said.
In addition, Wang said he authored an op-ed “urging (Maryland Gov. Larry Hogan) to veto the bill.”
Legal Newsline: Newspapers fight Md. law on political ads; Attorney said lawmakers ‘didn’t care’ about free speech concerns (In the News)
By Carrie Salls
State Senator Howard Stephenson and Utah County Republican Party Vice Chair Josh Daniels talk with Allen Dickerson from the Institute for Free Speech. Dickerson discusses anonymous political speech and donor disclosure laws.
By Matt Nese
Parker Douglas has joined the growing legal department at the Institute for Free Speech as a senior attorney. Douglas’s addition enables the Institute to expand litigation and other legal efforts to protect free political speech and donor privacy.
“I’m very pleased to join the Institute for Free Speech as a senior attorney,” said Douglas. “I’ve admired the Institute’s work for a long time, as they have become our nation’s bellwether for political speech protection and advocacy. I am excited about the work we will do together and look forward to assisting my colleagues in their endeavors to protect our precious first freedom.”
Prior to joining IFS, Douglas was the 2017-2018 Supreme Court fellow assigned to the Supreme Court of the United States, where he served in the Office of the Counselor to the Chief Justice. Previously, he served as Utah Federal Solicitor and Chief of Staff to Utah Attorney General Sean Reyes. Douglas has also been an assistant federal defender, and has practiced in the Supreme Court and Appellate section of Latham & Watkins’s Washington, DC office. He has taught several courses on subjects ranging from Constitutional Law, Constitutional Litigation, and a course on the First Amendment, at the University of Utah, S.J. Quinney School of Law.
Douglas has litigated more than 250 federal civil and criminal matters and appeals, as well as appeals in the courts of several states. He has handled cases concerning every amendment in the Bill of Rights, except the third, and matters involving separation of powers, preemption, the Commerce Clause, due process, equal protection, and sovereignty disputes.
IFS is excited to add an attorney of Douglas’s stature and experience to the team. His background as a senior state official, federal public defender, and Supreme Court fellow adds immeasurably to IFS’s capabilities and efforts in support of free political speech.
Filed Under: In the News
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 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.
‘Russia Hoax’ author Gregg Jarrett and former FEC chairman Bradley Smith join ‘Life, Liberty & Levin’ to discuss campaign finance laws.