Daily Media Links 10/5: The Roberts Court & the Future of Free Speech, Satirical super PACs: Don’t try this at home, and more…

October 5, 2015   •  By Brian Walsh   •  
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In the News

Boston Herald: High court power play comes with presidency

Kimberly Atkins

The latest urgent issue on the 2016 campaign trail is whether a Democrat or a Republican president will get to make as many as four Supreme Court appointments.

With four justices over the age of 77, the next president could dramatically reshape the court — upending its delicate 5-4 balance, and transforming the nation’s legal landscape. Candidates are stumping on it now, and hot-button issue advocates are both hopeful and fearful of what it could mean…

“I think if a Democrat makes the appointments, Citizens United would go,” said Bradley A. Smith of the Center for Competitive Politics, which favors lifting campaign contribution limits and fears a chilling effect on political speech if the 2010 Citizens United v. Federal Election Commission ruling is reversed.

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Delusions about Dysfunction at the FEC

The Center for Competitive Politics (CCP), America’s largest nonprofit dedicated to defending political free speech and assembly, released a new issue brief today addressing allegations that the Federal Election Commission is “dysfunctional” and does not work as intended.

Among the points made in the brief:

  • The FEC’s structure is intentionally bipartisan due to concerns about how President Nixon used the government against political enemies.
  • FEC Commissioners often agree on decisions – reaching a bipartisan consensus on 93% of all votes and 86% of substantive votes in 2014, according to its own data.
  • The Commission does, in fact, routinely enforce campaign finance laws. The media and the public continue to rely on the regular filing of reports by candidates, parties, and political committees with the Commission, and these groups abide by contribution limits and disclosure requirements.

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Read the brief

Comments to Texas Ethics Commission Regarding August 7, 2015 Revisions to Proposed Tex. Admin. Code § 20.1(20)

David Keating

As we extensively discussed in comments filed last year, the current rule is problematic because it adopts a reading of the operative phrase— “principal purpose”—that is both novel and unconstitutional. The phrase appears not only in Texas campaign finance law, but also in federal law and the laws of other states. As such, “principal purpose” is a term of art in the campaign finance context. It is a trigger designed to limit burdensome political committee regulation to entities that dedicate a sufficient quantity of their activity to making contributions or expenditures. The Supreme Court and federal appellate courts have held that any regime not so limited unconstitutionally burdens First Amendment activity.

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Supreme Court

Concurring Opinions: The Roberts Court & the Future of Free Speech

Joel Gora

First, in a series of cases, the most well-known of which is Citizens United v. Federal Election Commission (2010), the Court has been insistent that protecting political speech is at the heart of the First Amendment’s purposes in a democracy and that limits on political spending are limits on political speech and can rarely be justified. The Court’s theory, echoing earlier rulings, is that government restrictions on how much can be spent to speak about politics and government and what individuals or groups can do the spending and speaking are fundamentally anathema to the essence of political freedom of speech and association.

In these campaign finance cases, the Court has also reaffirmed a theme that transcends politics: that another core purpose of the First Amendment is to guarantee that the people, not the government, get to determine what they want to say and how they want to say it. This liberty-affirming concept, which celebrates the autonomy of each person and group and condemns censorship of thought and speech by government, has application well beyond the political realm and guarantees the strongest protection to free speech in a number of settings, including protection for artistic, corporate and commercial speech as well.

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More Soft Money Hard Law: Assigning Responsibility for “Implosion”, Part II: Implications for Reform Programs

Bob Bauer

On this topic – – the question of government regulation of the resources available for political advocacy and mobilization – – we can expect strong disagreement that will not be overcome by a shift of one or more votes on the Court.  But this does not mean that progressives have to give up all hope of reform.  Between the most uncompromising views either very much for, or very much against, regulation, there may well be a basis—common if not middle ground–for a discussion of what a reconstructed legal regime might look like.

We have seen a stirring of this dialogue: the list includes help to the political parties; the issues presented by candidates in their relationship to Super PACs; revised disclosures that focus reporting on consequential spending and not on small individual donations; a revamped enforcement process.  Rick may not count this as “comprehensive” reform.  But if reform in the next phase does not depend on being on the winning side of 5-4 decisions and just switching the identity of the impassioned dissenters, it may have more of a future.

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Independent Groups

Sunlight Foundation: Satirical super PACs: Don’t try this at home

Melissa Yeager

After reading through some of the warning letters, here are some of the top things we think people probably didn’t know before setting up their satirical super PAC.

You must open a separate bank account for the super PAC.

You have to appoint a treasurer who will be held liable by the FEC for the super PAC.

You cannot use a candidate’s name outright in your super PAC’s name. The way to get around that is to do something like the super PAC supporting Carly Fiorina, whose name CARLY for America reportedly stands for Conservative, Authentic, Responsible Leadership for You and for America.

You must meet filing deadlines. Missing those deadlines can land you in hot water and potentially cost you money.

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Candidates and Campaigns

Politico: Brock to Hillary donors: ‘Buck up and chill out’

Kenneth Vogel

But one donor still expressed frustration that Clinton’s message was being drowned out amid the email controversy, according to the source. Another urged Brock to sic his groups more aggressively against Clinton’s surging rival for the Democratic presidential nomination Sen. Bernie Sanders of Vermont, who has, in fact, been the subject of at least one opposition research hit pushed by Brock’s Correct the Record group. Notably, the source said, no donors expressed concern about the prospect that Vice President Joe Biden might join the race.

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The Hill: Harvard professor says he’d equal ratings for CNN debate

Mario Trujillo

The Harvard professor and former tech advocate, who making an unorthodox bid focused on campaign finance, has struggled to register support in polls and has been left out in others. But as he struggles to qualify for the debate, he made a Donald Trump-style argument that he could bring contrast to a Democratic field that is in agreement on many policy issues. 

“If I were in the rating department of CNN, and asking what’s the thing that’s going to make the spark that makes it interesting for people to stay tuned to this debate, I would think that certainly having me on the stage would rank high in that,” he told The Hill, while speaking more broadly about the Democratic Party’s frosty reception to his entry.

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The Hill: Lessig fights for second-tier status ahead of Dem debates

Mario Trujillo and Harper Neidig

Democratic presidential candidate Lawrence Lessig is getting his wish to be included in more polls — but that is shedding light on a more fundamental problem of support. 

Lessig has been included in three of the last five major national surveys of the Democratic field, but he has failed in any of them to register at least 1 percent support — the threshold to win a slot on the CNN debate stage later this month.

 “I understand there needs to be a line, but the idea that I’m close to the line just seems a little bit crazy,” he told The Hill in an interview.

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Politico: Insiders: Sanders needs big money

Katie Glueck

“Small donors are an important component but if the campaign drifts into the larger more expensive states he will need more dollars than he will receive from just small donors,” said one South Carolina Democrat, who like all participants was granted anonymity in order to speak freely.

Agreed an Iowa Democrat, “During the caucus, absolutely. But it’s difficult to go deep into the primary without the resources to back a full campaign in several states.”

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The States

MPBN News: Politicians Taking Sides on Campaign Finance Referendum

Mal Leary

The so-called clean elections law provides funding for legislative races and for candidates running for governor. Very few hopefuls have used the publicly financed option in governor’s races, and it’s been used less in legislative races since the Supreme Court ruling on matching funds. LePage believes the law has been misused.

“Wealthy people … took clean election money and then they invested their personal money in beating their opposition and I just don’t think that is ethically correct,” he says.

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Raleigh Public Record: Tenants Trump Taverns in Campaign Donations

James Borden

A recent claim that bar owners have an outsize voice in shaping the future of downtown Raleigh doesn’t match up with an analysis of campaign finance records through September 30 for the 2015 council and mayoral races.

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Brian Walsh

Brian is a Research Fellow at the Center for Competitive Politics.