Daily Media Links 10/2

October 2, 2019   •  By Alex Baiocco   •  
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In the News

Reason: Elizabeth Warren’s Lobbying Tax Is Anti-Constitutional Pseudo-Policy

By Peter Suderman

Warren, who is running for the Democratic presidential nomination, has proposed taxing corporate lobbying…

“We can end excessive lobbying,” Warren wrote in a tweet this morning. Excessive lobbying. Excessive petitioning of the government. The point of Warren’s tax on lobbying is to eliminate, or at least severely degrade, a fundamental constitutional right. It is probably unconstitutional, in the sense that it wouldn’t stand up to a court challenge. It is certainly anti-constitutional, in the sense that it is contrary to the spirit of the First Amendment…

Like many of Warren’s bad ideas, it may be politically savvy: Lobbyists are not exactly popular in America these days, and lobbying is widely viewed as grubby and unseemly, if not actively corrupt.

This view is not always correct; asking (lobbying) the government to pursue different laws and different policies can be a noble task and a path to better governance. But the view of lobbying as ignoble does have some merit; individuals and corporations often lobby for bad ideas. Indeed, as Bradley Smith and Luke Wachob of the Institute for Free Speech recently noted, Warren herself has a long history of directly encouraging federal lawmakers to adopt policies she prefers, particularly on issues like bankruptcy, about which she has produced misleading research for decades. Over and over again, she petitioned the government to adopt her misguided views-as was her right.

At other times, lobbyists advocate for narrow self-interest. Following the passage of Obamacare, for example, medical device makers, who have a heavy economic footprint in Massachusetts, the state Warren represents, pushed hard for a repeal of a tax directed at their industry. Starting with her 2011 campaign for Senate, Warren supported their position and backed much of the rest of their agenda in a 2012 op-ed for a trade publication. Industry lobbyists later praised her as a helpful working partner.

Event

George Mason Law Review: The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law

This year, we have selected a theme that goes to the heart of constitutional self-government: the administrative state’s role in the democratic process itself. Or, as we call it, “The Administration of Democracy.”

This year, scholars have written papers on such fundamental questions as: Is nonpartisan campaign-finance regulation possible? Who should draw electoral maps-and how? How can we best protect voting rights? How should the census be administered? How do we preserve the regulatory process’s democratic legitimacy? And, as we enter the next presidential election cycle, are members of Congress entitled to see the President’s tax returns?

In addition to panel discussions on these topics, we are honored and grateful to host a “Keynote Conversation” with two former public servants with deep expertise in both governance and campaigns: Robert Bauer and Donald McGahn

Panel 1: The Administration of Federal Campaign Finance Laws

Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, The George Washington University Law School

Trevor Potter, Founding President, Campaign Legal Center

Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School

Ciara C. Torres-Spelliscy, Professor of Law, Stetson University College of Law

Moderator: Adam White, Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, and Assistant Professor of Law, Antonin Scalia Law School, George Mason University

Date: Friday, October 4

Time: 9:00 AM – 6:30 PM

Location: Historic Decatur House’s Carriage House

The Courts

Bloomberg Government: Watchdog Allowed to Sue on Donor Disclosure After FEC Won’t Act

By Kenneth P. Doyle

A federal judge eased the way for watchdog groups to bypass a gridlocked Federal Election Commission in a decision allowing a lawsuit seeking to unmask secret donors to a major Republican campaign spending organization.

Federal District Judge Christopher Cooper said the watchdog Citizens for Responsibility and Ethics in Washington (CREW) can pursue an unusual “citizen suit” against the nonprofit American Action Network (AAN). The self-described “action tank” has spent tens of millions of dollars aiding Republican congressional candidates but never has revealed any of its donors.

The Federal Election Campaign Act allows court challenges when the evenly divided FEC splits along party lines and dismisses an enforcement complaint. This can be an effective way to enforce the law if the commission won’t act, the judge said, denying a motion to dismiss CREW’s lawsuit. The commission twice dismissed the watchdog group’s complaints against AAN.

In his decision handed down Monday, Cooper recalled an old Washington joke that the FEC “is the only government agency that does exactly what Congress designed it to do: nothing.”

Cooper said the CREW challenge was the first suit to be filed under FECA’s citizen-suit provision, which was added to the law in 1974…

CREW’s lawsuit claims AAN is a political action committee required to report its donors. It’s one of numerous court challenges brought by the watchdog seeking enforcement of disclosure rules…

[AAN] said that much of its spending was for TV ads focused on influencing legislation, not elections, and Republican FEC commissioners agreed. Cooper said, however, that the claim “blinks reality” and concluded the ads were clearly designed to help elect or defeat particular congressional candidates.

Washington Post: Justice Department says leaking classified information is ‘thievery, not protected speech’

By Rachel Weiner

A contractor accused of leaking classified information engaged in “thievery, not protected speech,” and has no First Amendment grounds to challenge his Espionage Act prosecutions, the Justice Department said in an Alexandria federal court filing.

Former intelligence analyst Daniel Hale shared details of drone warfare with the website the Intercept, according to an indictment filed in May. His defense attorneys argued last month that the law was designed to deal with spies, not leakers, and that the prosecution runs afoul of the First Amendment by chilling newsgathering and implicating the reporter who received the information.

It’s an argument that probably will resurface if Julian Assange, facing prosecution in the same courthouse for publishing classified information, is ever extradited. The government rarely prosecuted leakers until President Barack Obama’s tenure, and the Trump administration is the first president to prosecute the publisher of classified information along with the leaker…

The government notes that the U.S. Court of Appeals for the 4th Circuit rejected a First Amendment challenge to the Espionage Act statute in 1988; the defense maintains that the landscape of leak prosecutions is so different now that the decision does not apply.

In their own filing Monday, Hale’s attorneys argue that he should be able to challenge whether the documents in question were truly national defense information and properly classified…

They reference recent news that the White House has been moving reports on President Trump’s phone calls with foreign leaders to a highly classified computer system.

“The government could classify information, improperly, solely to protect the Executive Branch from embarrassment, and criminalize any attempt by the press to write about the substance of its obviously improper classification determination,” they wrote.

Trump Administration

New York Times: With Sanctions on Russians, U.S. Warns Against Foreign Election Meddling

By Lara Jakes

The United States issued new economic sanctions on Monday against seven Russians linked to an internet troll factory in what Secretary of State Mike Pompeo called a warning to foreigners who seek to interfere in American elections…

“We have been clear: We will not tolerate foreign interference in our elections,” Mr. Pompeo said in a sharp statement.

“The United States will continue to push back against malign actors who seek to subvert our democratic processes,” Mr. Pompeo continued, “and we will not hesitate to impose further costs on Russia for its destabilizing and unacceptable activities.”

Lobbying

Vox: Elizabeth Warren’s new remedy for corruption: a tax on lobbying

By Tara Golshan and Ella Nilsen

The proposal would tax groups and companies that spend between $500,000 and $1 million per year on lobbying at a 35 percent rate, increasing the rate for bigger lobbying budgets. Corporations and trade groups that spend more than $1 million per year on lobbying would get hit with a 60 percent tax rate, and those spending more than $5 million would see a 75 percent tax rate.

These brackets would hit the pocketbooks of big pharmaceutical and health insurance companies, the real estate industry, fossil fuel companies, Wall Street firms, and electric utilities the hardest. They do not apply to charitable or social welfare organizations that also lobby the government, such as 501(c)3 and 501(c)4 nonprofit groups, but do apply to trade and professional associations, 501(c)6 groups…

This proposal is in line with many ideas that have been floated in good-government circles – ideas like creating tax incentives for companies that don’t spend money on lobbying or creating a separate tax bracket all together for companies that do, according to Lisa Gilbert, with progressive consumer protection think tank Public Citizen.

“Taxing corporate special interest lobbying as a means to push back on the influence machine is both innovative and important,” Gilbert said…

The point is twofold: Either the tax is enough to discourage massive corporate lobbying efforts, or it leads to some federal revenue.

CNN: Elizabeth Warren wants to tax the teeth out of corporate lobbying

By Gregory Krieg and Daniella Diaz

In this chapter of her wider agenda, Warren stresses that the issue goes beyond Congress, lawmakers and the “revolving door” between Capitol Hill and K Street — and addresses lobbyist influence on regulatory bodies.

Lobbyists “also target our federal departments like the Environmental Protection Agency and the Consumer Financial Protection Bureau,” the agency she built during the Obama administration, Warren writes…

In her Wednesday post, Warren said the new revenue would be cycled back into what she is calling the “Lobbying Defense Trust Fund.” That cash will, in turn, be doled out to what she describes as underfunded and lobbyist-besieged government agencies.

“Every time a company above the $500,000 threshold spends money lobbying against a rule from a federal agency,” Warren writes, “the taxes on that spending will go directly to the agency to help it fight back.”

Regulatory agencies are often bombarded with “comments” from parties likely to affected by a proposed rule change…

The new revenue brought in by the tax would also be used to fund Warren’s proposed Office of the Public Advocate, which she unveiled as part of an earlier release. Its purpose would be to facilitate citizen interaction — and, potentially, pushback — to government efforts to either implement or roll back certain regulations…

“My new lobbying tax will make hiring armies of lobbyists significantly more expensive for the largest corporate influencers like Blue Cross Blue Shield, Boeing, and Comcast,” she writes. “Sure, this may mean that some corporations and industry groups will choose to reduce their lobbying expenditures, raising less tax revenue down the road — but in that case, all the better.”

Fundraising 

New York Times: Trump Campaign and R.N.C. Raise $125 Million in Third Fund-Raising Quarter

By Maggie Haberman

President Trump’s re-election campaign and the Republican National Committee raised a combined $125 million in the last three months, Republican Party officials said on Tuesday, setting a presidential fund-raising record…

Senator Bernie Sanders of Vermont reported bringing in $25.3 million; Mayor Pete Buttigieg of South Bend, Ind., announced that he had raised $19.1 million; Senator Kamala Harris of California said she had an $11.6 million haul; and Senator Cory Booker of New Jersey disclosed raising more than $6 million.

In the last several years, the ability of political party committees to raise huge sums has been transformed following a Supreme Court decision on campaign finance limits as well as a lift of the cap on what committees could raise from individuals.

When President Barack Obama and the Democratic National Committee raised a combined $70 million in the same quarter of 2011, it was in smaller increments, meaning they needed to raise funds from more people.

Washington Post: RNC solicited money for Trump’s reelection with forms that look a lot like the official census

By Kim Bellware and Brittany Shammas

The mailers are labeled “2019 Congressional District Census” and inform recipients that they’ve been “selected to represent Voters” in Bozeman, Mont. The accompanying literature makes repeated requests for donations, urging recipients to send at least $15 to “help pay for the costs of processing [the] Census Document” if they are unable to afford an amount in the requested range of $25 to $1,000…

In a Friday news release, the Montana Department of Commerce reminded residents that legitimate census survey documents are postmarked from the U.S. Department of Commerce, U.S. Census Bureau, rather than political groups, and never ask for money…

In an email, a Republican National Committee official said: “Mailers are clearly marked that they are from the Republican National Committee. The mailers receive an overwhelming positive response and we continue to send each year because it performs so well.”…

Phony census mailers are enough of a concern that Congress in 2010 passed the Prevent Deceptive Census Look Alike Mailings Act…

Mailings that mimic the real census have been a problem since at least the 1990s. Congress has passed at least two laws since then – most recently the 2010 law – aimed at curbing mail that impersonates a federal agency.

[Terri Ann Lowenthal, a census expert who served as staff director of the House census oversight subcommittee in the 1980s,] said it’s difficult to judge whether the mailers from Montana run afoul of any laws without first seeing the envelope they were sent in to determine if the material gives the impression it’s an official government mailing. As ProPublica reported, the misleading census forms from 2010 did not violate any laws.

“In this case, using the word Census, even with a capital ‘C,’ does not equate to impersonation of the U.S. Census Bureau,” it reported at the time.

The States

New Jersey Globe: Zwicker not backing away from dark money bill over LCV opposition

By Nikita Biryukov

Assemblyman Andrew Zwicker isn’t backing away from the dark money bill he sponsored over opposition from the New Jersey League of Conservation Voters…

The LCV declined to back Zwicker because of his role in the dark money bill’s passage…

Zwicker’s bill has simultaneously seen praise and scorn from good government groups on all sides of the aisle.

The New Jersey ACLU and the state’s branch of Americans for Prosperity have sued the state over the bill.

The ACLU’s suit claims the disclosure requirements could prevent donors from giving to groups involved in sensitive issues, like abortion and LGBTQ rights, among others.

AFP argues the bill could hamper constitutionally-protected political speech.

A clean-up bill is in the works, though it’s not clear when that bill will make it to the floor.

Though clean-up was initially set for a committee vote in June, it was pulled after opposition from Senate President Steve Sweeney over concerns that the new version of the bill would not force New Direction New Jersey, a non-profit run by Gov. Phil Murphy allies that advocates for his policy priorities, to disclose its donors.

The clean-up bill may include measures to force certain pro-business groups, like the state Chamber of Commerce, to disclose their donors as well.

New Jersey Star-Ledger: Out-of-state groups are fighting about our ‘dark money’ law. How ‘ironic,’ senator says.

By State Senator Troy Singleton

None of us expected the opponents of this legislation – some well-intentioned, some not – to just go away quietly. However, I was disappointed and dismayed earlier this month when I read about the groups bringing legal challenges against the law…

Every dollar spent fighting against our “dark money” law is a dollar spent against transparency and good government. Every minute spent delaying the implementation of this law is one minute more that anonymous and potentially dangerous groups have to sway the public’s opinion and distort our democracy.

Yet, in the face of these recent legal challenges, I firmly believe that the statute that we passed puts New Jersey at the vanguard of public policy with respect to greater transparency and accountability for these “dark money” groups who seek to control our electoral process. I am confident New Jersey’s law stands on strong legal grounds and will be proven so in the court of law. If there is any fight worth fighting, this is it.

Seattle Weekly: Eyman cohorts fined $1M in campaign finance case

By Jerry Cornfield

Sherry Bockwinkel told state investigators in August 2012 that something wasn’t right with the financing gymnastics involving signature-gathering firm Citizen Solutions and initiative promoter Tim Eyman.

In a complaint filed with the Public Disclosure Commission, the Tacoma woman spelled out how it looked like the two parties had conspired to take contributions collected for one initiative and spend it on another without disclosing it as required by Washington’s campaign finance laws.

On Monday, in a Thurston County courtroom, her theories were proved right.

Thurston County Superior Court Judge James Dixon ordered Citizen Solutions, and its principal, William Agazarm, to collectively pay nearly $1.1 million for their role in secretly moving money among those ballot measures and illegally kicking back hundreds of thousands of dollars to Eyman for his personal use.

Dixon’s order stems from a March 2017 civil lawsuit filed by Attorney General Bob Ferguson against the company, its leaders and Eyman. The judgment does not apply to Eyman because his case is proceeding separately…

Andrew Villeneuve, founder and executive director of the Northwest Progressive Institute, has teamed with Bockwinkel for years to bird-dog Eyman’s political conduct. He’s glad the court finally acted…

Ferguson was pleased with the outcome.

In a statement, he said, “This judgment reflects the serious and intentional violations of Washington’s campaign finance laws. Mr. Agazarm and Citizen Solutions knowingly participated in a scheme to hide how contributions to Tim Eyman’s campaigns were really being used.”

Alex Baiocco

Alex Baiocco