Daily Media Links 11/11

November 11, 2021   •  By Tiffany Donnelly   •  
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Ed. note: The Daily Media Update will return Monday, November 15.

Supreme Court

The Hill: Supreme Court wrestles with limits on digital billboard ads, free speech

By John Kruzel

The narrow question before the justices was whether the Austin regulation [permitting businesses to use digital billboards on their grounds but banning their use for off-site advertising] is triggered by the content of the speech in the advertisement, which would place the regulation in a category that draws the most stringent judicial scrutiny…

“The off-premises rule is an empty vessel that applies to all subjects and topics,” [the city of Austin’s attorney, Michael Dreeban] said. “It turns on the relationship of a sign to its location, not the content of its message.”

Justice Clarence Thomas pushed back on that assertion by asking whether a hypothetical hamburger restaurant would be barred from erecting a digital billboard advertising another restaurant located off-premises…

Justice Brett Kavanaugh asked if there was a way Austin could achieve its aims…through a less restrictive sign code that gave a wider berth to content…

Several justices expressed concerns about the unintended consequences of ruling in favor of the advertisers…

Chief Justice John Roberts pointed to the possibility of rendering unconstitutional portions of the Highway Beautification Act, a 1965 statute that relied on the on- and off-premises distinction to let states regulate highway signs.

Kannon Shanmugam, a lawyer for the advertisers, argued that such laws should be subject to strict judicial scrutiny but suggested they might survive the test where Austin’s sign code fails. 

But both Roberts and Justice Elena Kagan expressed concern that such an approach could risk diluting the legal standard, known as strict scrutiny, when applied to content-based restrictions. 

DOJ

New York Times: Three Men Charged With Running ‘Scam PACs’ That Bilked Small Donors

By Shane Goldmacher

The Justice Department on Wednesday accused three political operatives of running a scheme to mislead donors and enrich themselves, charging the men with defrauding people of $3.5 million in 2016 and 2017.

The allegations involve two political action committees and include wire fraud, money laundering and making false statements to the Federal Election Commission. It was the latest indictment against operatives who raise money for what are known as scam PACs, which direct much of the proceeds back to the people who run them…

On Wednesday, the Justice Department said that the two PACs linked to Matthew Tunstall had spent heavily to recruit small donors under false and misleading pretenses, including through robocalls that impersonated President Donald J. Trump…

Paul S. Ryan, the vice president of policy and litigation at Common Cause, a watchdog group, called the indictment “good news for democracy and small donors,” adding that Mr. Tunstall was perhaps the best known of the fund-raising operatives taking advantage of donors in this way…

This year, the [FBI] warned consumers that “scam PACs are on the rise.”

Mr. Ryan noted that the charges filed were made under financial crimes statutes and not under campaign finance law. And he urged federal lawmakers to stiffen the existing campaign-finance rules to better protect small contributors.

“Congress really needs to act here,” Mr. Ryan said.

FEC

Insider: The FEC relies on candidates’ ‘good faith’ when it comes to foreign donations. But the agency’s inspector general says that’s ‘insufficient oversight’ and poses a ‘national security risk.’

By Bryan Metzger

report by the Federal Election Commission’s internal watchdog has found that the body’s current system of handling potential foreign contributions — largely relying on candidates and political action committees to certify that they haven’t received foreign money — “poses a national security risk and provides insufficient oversight of possible illegal foreign donations.” …

Central to the issue when it comes to foreign money, according to the watchdog, is that the FEC must ultimately rely on the “good faith” of various entities that file reports…

“However, we recognize that the FEC’s resources are significantly constrained,” the report said, noting that that the agency’s funding has only increased a minuscule amount in the last 13 years. “The increased demand on the agency without additional funding to provide resources to the FEC poses a challenge for the agency to identify and regulate unlawful foreign contributions,” the report also said.

Brendan Fischer, Director of Federal Reform at the Campaign Legal Center, told Insider that the report’s findings revealed ongoing issues with the agency. “This is an example of how dysfunction on the part of the FEC does put our elections at risk, including from foreign interference,” he said…

“That’s only the tip of the iceberg,” said Fischer. “The really concerning foreign contributions are not going to be reported contributions coming in within within federal limits, they’re going to be 6 or 7-figure contributions going to a dark money group.”

The inspector general report included a response from the commission, which stated that cases involving potential illegal foreign contributions are prioritized above others. The FEC also said it has “modified its case management software” to better address the issue, and current regulations to prevent foreign money from flowing into campaigns are “extensive.”

Election Law Blog: The FEC Wrongly Blames Citizens United For Increases in Federal Election Spending

By Richard Pildes

Rick Hasen links to the new FEC report on federal election spending over time. In addition to reporting the data, the FEC says spending has increased dramatically over time, “particularly after the Supreme Court’s decision in Citizens United.” Spending has of course increased. But if the FEC had paid better attention to its own data, it would see that this statement about Citizens United is not supported by its own data (the FEC reports on spending by campaigns, party committees, and PACs).

The rate of increase in spending from these sources on federal elections was significantly higher before Citizens United than after. Election spending has been going up, of course, but there are many causes for that.

The FEC report does not provide the specific numbers, so I’ve done this by eyeball from the chart the FEC provides in the report. Take a look at presidential elections first. Spending increased dramatically more rapidly before CU than after. We do see one dramatic cause for a very recent huge increase in spending: Donald Trump’s election in 2016, which led to a massive increase in spending in 2020, given the stakes perceived to exist in the most recent election. This is consistent with the exceptionally high turnout in the 2020 election, despite the pandemic: many actors perceived the stakes to be extremely high and spent, as well as turned out, at high levels.

Increases in spending in Presidential Elections:

Fundraising

Washington Post: Donors threatened to shun the GOP after Jan. 6. Now, Republicans are outraising Democrats.

By Josh Dawsey, Isaac Stanley-Becker, and Michael Scherer

After the Jan. 6 attack on the Capitol, scores of donors and companies made public or private statements like Verhoff’s, vowing to withhold or rethink their funding for the GOP. But a review of attendees at elite donor retreats, financial filings and interviews with party officials, donors and fundraisers indicates the GOP has had a booming financial year, retaining significant support from many Fortune 500 companies and the city’s most influential lobbying shops, including some contributors who initially balked in the wake of the Jan. 6 attack…

The widespread support for the GOP represents a realization by companies that they face little risk of a public backlash in much of the country for such contributions, experts said.

“Part of the reason corporations feel comfortable in returning to their support for what some have called the ‘sedition caucus’ is that half of the country doesn’t look at them as seditious, and that gives corporate brands some comfort that they won’t be punished for funding people who objected to Biden’s election on Jan. 6,” said Ciara Torres-Spelliscy, a specialist in election law and corporate governance at Stetson University College of Law…

The distinction some companies are drawing — between donating to individual objectors and to the party committees that help fund their reelection campaigns — is meaningless “if the money ends up in the hands of the objectors,” Torres-Spelliscy said. “Having money go through committees and leadership PACs to members of Congress who objected — it’s a classic lack of transparency in money in politics.”

The States

Camas-Washougal Post-Record: PDC: ‘Washougal Moms’ must register as political action committee

By Doug Flanagan

The Washington State Public Disclosure Commission has called out the Washougal Moms group for failing to register as a political action committee…

Formed in May to defend three mothers accused of disrupting a Washougal School Board meeting, the Washougal Moms group has since hosted a “tribunal” to elect a shadow school board, posted vehement opposition to at least one school board incumbent running for reelection and called for current school board officials to be removed and arrested.

Washougal residents Melanie Wilson and Wendi Moose sent complaints to the PDC regarding the Washougal Moms earlier this year, alleging the group was actively campaigning against school board incumbents and accepting contributions to buy campaign-related signs and fund a website but had not registered with the state as a political action group…

The PDC issued a formal written warning to the Washougal Moms on Oct. 27. In the warning, the PDC said the group has received an in-kind contribution for signs placed around the Camas-Washougal area; supported and opposed political candidates; and solicited and accepted contributions…

The PDC said the group must include the phrases “paid for by” or “sponsored by” followed by its name and address on websites that display advertising supporting or opposing candidates or ballot measures.

The PDC also said the group must register as a political action committee for the 2021 election by Oct. 31, 2021, “and, in the future, timely and accurately file PDC reports and disclose contributions and expenditures as required by law.”

Columbus Dispatch: GOP bill that allows police to sue protest organizers advances despite Dems’ objections

By Anna Staver

A sweeping bill to increase the charges, penalties and civil lawsuits that can be filed against protestors is moving forward over objections that its vague language violates the First Amendment.

House Republicans passed House Bill 109 out of committee Wednesday morning over Democrats’ objections, setting up a possible vote by the entire House next week. 

Supporters say the “Ohio Law and Order Act” would protect police, peaceful protestors and free speech. But opponents say the penalties are far too harsh because five people blocking an intersection can meet Ohio’s definition of a riot…

On the civil side, officers who suffered injuries during these events could file lawsuits against individuals as well as “any organization that provided material support or resources to the responsible party.” They could also sue someone for filing a false complaint…

“The bill doesn’t define the word false or complaint,” said Gary Daniels, a lobbyist for the American Civil Liberties Union of Ohio. “What is a false complaint? Is it to internal affairs? Is it to some police oversight board? Is it a legal filing?”

Protestors might refuse to file legitimate complaints because they are worried officers will sue them, Daniels said. 

There’s also a fear that prosecutors would apply the riot label to certain protests but not others. 

“We have concerns when it comes to enforcement and consideration of enforcement that it will be aimed much more at groups like Black Lives Matter,” Daniels said. 

Tiffany Donnelly

https://www.ifs.org/author/tdonnelly/

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