Daily Media Links 10/1

October 1, 2019   •  By Alex Baiocco   •  
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In the News

Statehouse News Bureau: Dark Money In The Spotlight In Heated Nuclear Bailout Referendum Campaign

By Karen Kasler

Bradley Smith is a professor at Capital University Law School near Columbus and a former chair of the Federal Elections Commission. And he’s fascinated.

“To me, what’s really interesting is that they’re doing this all this just to keep the petition from even qualifying for the ballot and that’s what I don’t recall [seeing] before. Is somebody coming forward and trying to spending a large amount of money just to get the issue from even being placed on the ballot,” Smith said…

Groups including the League of Women Voters and Common Cause Ohio have called for more financial disclosure of the groups involved in this referendum. Ohio State University Moritz College of Law professor Dan Tokaji said it’s simple.

“It’s fundamentally an issue of transparency. We should know we the people should know who’s funding campaigns whether they’re for ballot measures or for candidates,” Tokaji said.

Those who oppose that say corporate and high profile donors sometimes want to be shielded to avoid protests and boycotts, and that they support dark money groups for reasons beyond political activity. And former FEC chair Bradley Smith said there’s often plenty of information about dark money groups anyway.

“I think anybody would be, would not be shocked to discover that there’s a fair amount of energy company money behind this, the people who in fact would benefit from this directly. So I don’t know how much voters would benefit,” said Smith.

Smith is the founder of the Institute for Free Speech, which opposes campaign finance reform.

New from the Institute for Free Speech

Comments to FEC on REG 2019-01: Rulemaking Petition to Amend the Definition of Contribution to Include “Valuable Information”

By David Keating

The Commission should tread lightly where the Petition asks it to go, because “[u]nique among federal administrative agencies, the Federal Election Commission has as its sole purpose the regulation of core constitutionally protected activity.” The Petition asks that this Commission consider the regulation of speech within new categories of “information.” All the related terms are vague and overbroad, but to the extent these terms have any real meaning, they are likely already covered by existing FEC regulations. Because the proposed rule is either unconstitutional or duplicative, it should not be adopted…

The Petition seeks to create a category of contribution called “Valuable Information,” defined by a multifactor test that uses language like “non-trivial” and “traditional[]” in the place of actionable definitions. This alone is problematic, for the regulation does not give adequate notice on what will be trivial, traditional, or traditionally trivial…

To the extent “Valuable Information” goes beyond 11 C.F.R. § 100.52(d)(1) and related provisions, the proposed regulation runs into trouble. Terms like a “non-trivial amount for the recipient to obtain” is not a workable standard for the regulated community. What is trivial? How much effort is too much effort? The same questions apply to the term “not freely available to the public.” If a committee could point to a small corner of the Internet with the information, is that enough to defeat the definition? The FEC will be inundated with advisory opinion requests trying to figure out what is and is not “trivial” or “not freely available to the public.” These ambiguities are especially troubling since, as already discussed, the Petition seeks to initiate investigations premised on these vague concepts while bypassing a vote of the Commission itself.

PDF of comments available here

FEC

Wall Street Journal: Liberal Meltdown at the FEC

By Editorial Board

For an example of why so many Americans perceive administrative agencies as partisan and unaccountable, look at the antics of Federal Election Commission Chair Ellen Weintraub, who has inserted her agency into the Trump impeachment debate and distorted campaign-finance law.

Last week Democrats started calling for President Trump’s impeachment over his phone call with Ukrainian President Volodymyr Zelensky. Ms. Weintraub, who has been publicly baiting Mr. Trump for months, posted to the FEC website a draft campaign-finance interpretation designed to suggest the President had committed a crime. Another FEC commissioner, Caroline Hunter, objected to the rule’s inclusion in the FEC’s email digest without further discussion. That could lend the agency’s imprimatur to a partisan stunt.

The digest was never sent out. Ms. Weintraub then reproduced the digest in a series of tweets Friday, which have been retweeted more than ten thousand times. She wrote, “I always thought these anti-regulatory people”-presumably referring to Ms. Hunter-“liked the First Amendment well enough. I guess they think it’s just for corporations.”…

The rule Ms. Weintraub proposes would likely be unconstitutional. If any “information” offered “in connection with an election” is prohibited, then gossip between an American campaign staffer and a noncitizen Uber driver ahead of an election could be prosecuted. There’s a reason the Mueller report said treating “opposition research or similar information as a thing of value” could “raise First Amendment questions.” Perhaps “anti-regulatory people” simply want to follow the Constitution…

Regardless of whether Congress impeaches, Mr. Trump will one day leave office. But by casting aside constitutional considerations and shedding even the appearance of impartiality, bureaucrats like Ms. Weintraub are inflicting serious damage to public confidence in U.S. institutions that may last far longer.

Washington Post: Election chief, GOP colleague at odds over who kept a foreign activity memo from wide release

By Alex Horton

[FEC Commissioner Caroline Hunter] said she asked Weintraub for time to evaluate the document before it was included in the digest. “Unfortunately, she refused to publish the digest without her document,” Hunter told The Washington Post on Tuesday.

“I have requested it to be released today in the digest with her document,” she said, including her own statement that says putting forth such documents was futile because they don’t currently have enough commissioners to meet.

“Under these circumstances, a discussion in an open meeting without a quorum would be a useless and misleading exercise. I cannot participate in my colleague’s efforts to grandstand,” she said in separate statement…

Hunter said she takes foreign interference in elections seriously, and pointed to her voting record in her statement. But, she added, nuances of foreign interference in everyday life – and in possibly innocuous situations – make the matter complicated when restrictions are broadened, necessitating a more careful look at such regulations.

“Particularly with an issue as sensitive and troubling as foreign interference in American elections, however, it is crucial that Commissioners act prudently and judiciously,” she said.

FEC: Statement of Commissioner Caroline C. Hunter on Consideration of Matters Without a Quorum

Late last week, my colleague, Ellen Weintraub, unilaterally and without advance notice, made public a draft interpretative rule regarding the Act’s foreign national ban and placed it on the agenda for the open meeting of October 17, 2019. Approval of such a document, however, requires a quorum of four Commissioners, which we currently lack. Under these circumstances, a discussion in an open meeting without a quorum would be a useless and misleading exercise. I cannot participate in my colleague’s efforts to grandstand.

Despite erroneous press reports, we all agree that federal law clearly prohibits a foreign national from making a contribution, donation, expenditure, or disbursement in connection with a Federal, State, or local election, and no person may solicit such a contribution or donation from a foreign national. For decades, the Commission has enforced this ban, and I stand by my votes to do so. But the Commission currently lacks a quorum to take official action on most substantive matters, and I object to actions that create the misimpression that the Commission can do more than is permissible under the circumstances.

My concerns about discussing in open meeting a proposal that cannot be adopted do not impair my colleague’s ability to speak on issues within the Commission’s jurisdiction (subject to the Act’s confidentiality requirement). Particularly with an issue as sensitive and troubling as foreign interference in American elections, however, it is crucial that Commissioners act prudently and judiciously.

Fox News: Pro-Trump super PAC files FEC complaint against DNC over Ukraine outreach

By Andrew Keiper

The complaint, filed by the pro-Trump Committee to Defend the President, hinges on the work of Alexandra Chalupa, a contractor hired by the DNC during the 2016 election. The DNC, the complaint alleges, “tasked Chalupa with obtaining incriminating or derogatory information about Donald Trump … [and] Paul Manfort.”

In May, Fox News reported that the UkrainianEembassy confirmed that Chalupa had pushed for Ukrainian officials to publicly mention Manafort’s financial and political ties to the country…

Chalupa, according to the complaint, sought to have the Ukrainian government provide her information about Manafort’s work in the country. She was encouraged by the DNC to meet with former Ukrainian President Petro Poroshenko to gain insight that would theoretically boost Hillary Clinton’s bid for president…

Ken Vogel, a New York Times reporter who wrote about the story for Politico in 2017, tweeted that Chalupa wasn’t representing the DNC during her meetings with Ukrainian officials. That point is overlooked in the complaint, which alleges that acquiring something of value in a political campaign from a foreign government is a violation of campaign finance.

The Courts

Austin American-Statesman: Lawsuit: Texas limits on drone photos violate free speech

By Chuck Lindell

A federal lawsuit filed Thursday in Austin seeks to strike down Texas laws that restrict what can legally be photographed by drones.

Filed by two journalism organizations and a reporter, the lawsuit argues that a 2013 law places improper limits on news gathering, violating the First Amendment by making it a crime to capture images of private property, or a person on that property, no matter where the drone is flying.

The law bans the use of drones with the “intent to conduct surveillance,” a phrase that is not defined and is vague enough to include most news-gathering activities, allowing for arbitrary and discriminatory enforcement, the lawsuit argued…

The lawsuit also challenged a provision added in 2015 that bans all drone use below 400 feet above sports venues, prisons and “critical infrastructure facilities,” including oil fields, pipelines, refineries and animal feedlots.

Because Federal Aviation Administration regulations ban drones from flying above 400 feet, “the no-fly provisions function as a near absolute ban on the use of (drones) in these locations,” the lawsuit argued…

According to the lawsuit, the state’s drone laws have hampered efforts to document conditions of a facility that houses immigrant children and prompted threats from San Marcos police after a San Antonio Express-News photographer tried to document the aftermath of the Iconic Village apartment fire that left five dead in 2018.

“The threat of criminal sanction for engaging in this protected conduct effectively censors critical comment by the press,” said the lawsuit, filed by the National Press Photographers Association, the Texas Press Association (of which the American-Statesman is a member) and freelance journalist Joseph Pappalardo.

Congress

The Hill: House Ethics Committee reviewing two GOP lawmakers over campaign finance

By Cristina Marcos

The committee announced that it is extending reviews of Reps. Ross Spano (R-Fla.) and Bill Huizenga (R-Mich.) and would announce next steps, such as deciding to open formal investigations, by Nov. 14.

Spano is under scrutiny for accepting about $180,000 in loans from friends and using it for his congressional campaign as if it were his own money…

Huizenga, meanwhile, faced a Federal Election Commission (FEC) complaint from the Michigan Democratic Party alleging that he misused campaign funds for personal expenses.

The FEC later recommended a dismissal of the allegations after finding no “reasonable inference” that Huizenga’s campaign used campaign funds for personal use, according to The Detroit News…

The Ethics Committee also announced earlier Monday that it is extending a review of freshman Rep. Rashida Tlaib (D-Mich.) over accepting a salary from her 2018 campaign.

Political Parties

Politico: Dems seek lobbyist cash to fund Milwaukee convention

By Maggie Severns and Theodoric Meyer

Two top operatives planning the Democratic Party’s 2020 convention in Milwaukee went to K Street last week to pitch lobbyists on their plans for the $70 million event.

Against the backdrop of the Democratic primary, it was an awkward pairing – representatives for special interests meeting with top Democrats while the party’s leading presidential candidates reject corporate PAC and lobbyist cash. But Democratic National Committee officials explained during the meeting how corporations can help foot the bill for the convention, regardless of who the nominee is, addressing some lobbyists’ worries that a crusading left-wing nominee like Bernie Sanders or Elizabeth Warren could try to reject corporate money, embarrassing convention sponsors.

The DNC doesn’t plan to return any corporate money that is donated to the convention regardless of the nominee, convention CEO Joe Solmonese told POLITICO…

According to a summary of event packages obtained by POLITICO, which the convention planners circulated at the meeting with lobbyists, the perks for a $300,000 donation include access to two well-located hotel rooms. The price is steep even by the expensive standard of national party conventions: In 2016, a $200,000 donation included five hotel rooms at the Democratic National Convention in Philadelphia…

Asked what the DNC would do if the Democratic nominee asked for corporate donations to be returned, Solmonese said the DNC has to get the convention “appropriately funded and get it paid for well in advance,” which means accepting corporate PAC donations.

“We can’t know and try to, nor can I ever suggest that we ever try to, bend this towards any one candidate’s philosophy,” Solmonese said.

Online Speech Platforms 

The Hill: Free speech suppression online builds case to break up Big Tech

By Donald Trump Jr.

As I have written many times, the greatest threat to free speech and our democracy today is not the government, but the technology giants that deplatform people at the behest of liberals and then justify the action as “combating hate” and making the internet somehow safer…

The sustained pattern of leftward bias both within the companies themselves and in their conduct around elections has been clearly established. After all, when is the last time you heard a liberal complain about being unfairly stifled on social media?

Technology companies are now openly claiming that they can engage in biased censorship, with Facebook arguing in court that it has the right to censor content because it is a publisher. If it were not for Section 230 of the Communications Decency Act, the admission that it is a publisher would make Facebook liable for every word of defamation and slander on its various platforms. Instead, Facebook escapes liability because it is a provider of “interactive computer services” protected specifically because it offers a forum for a “true diversity of political discourse.”…

The disdain shown by technology companies for viewpoint neutrality and their refusal to be honest about it shows the threat of the Silicon Valley monopoly over the modern public square.

Thanks in large part to the White House, people are recognizing the gravity of the situation. A majority of Americans support breaking up the technology giants, including a majority of liberals, while 50 state and territory attorneys general have brought the first antitrust investigation of its kind against Google. This comes in addition to antitrust investigations into Google, Facebook, and Amazon that have already been announced by both the Justice Department and the Federal Trade Commission.

The States

Reason: Why Is the Colorado Governor’s Office Trying to Censor Rural News Outlets?

By Scott Shackford

[W]hen two small Colorado newspapers, the Kiowa County Press in Eads, and the Chronicle-News in Trinidad, published the story, they heard from Conor Cahill, Polis’ spokesman, who asked them to take the articles down.

Cahill did not challenge any of the facts presented in the story. He, instead, objected to them having run news stories from The Center Square because he does not see them as an objective source of information. The Center Square is a product of the Franklin News Foundation…

Cahill’s argument is that donors to Franklin News Foundation may come from libertarian or conservative backgrounds, and the fact that writer Draplin is also an editor at The Daily Caller, a right-leaning outlet, apparently taints everything The Center Square writes, even if the story is completely accurate… In an email to The Denver Post, Cahill explains his justification for reaching out to these newspapers:

“When we looked into this group and discovered that it was not an objective wire service, but instead a branded website funded by the Koch Brothers’ political organization, we were alarmed that it was being reprinted by reputable news outlets in the state. The people of Colorado deserve quality, objective news they can trust so they can make their own informed decisions…” …

What’s alarming here is that, again, he provides no evidence that anything written in the very brief news story is inaccurate, just written by a group that gets funding from people with an agenda might not match that of the governor’s office. Cahill is also implying that an organization with a political bent cannot also produce fact-based journalism. This would come as news to publications like Rolling Stone, Mother Jones, and, well, Reason.

And without question, it’s most certainly not the place of the governor’s press office-whose role is to push forward Polis’ agenda to the media-to be weighing in on what “objective” journalism is. That’s especially true since Cahill, upon repeated request, cannot actually point to anything in The Center Square’s piece that is factually inaccurate.

Alex Baiocco

Alex Baiocco