Daily Media Links 11/17

November 17, 2020   •  By Tiffany Donnelly   •  
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In the News

PPLI: Senate Rules Committee to Hold Hearing Nov. 18 on Nominees to Federal Election Commission

By Barnaby Zall

The Senate Committee on Rules and Administration has announced a hearing on Wednesday, November 18, 2020, to consider three nominees to the Federal Election Commission, the federal agency regulating campaign finance and activity. The hearing should be streamed on the Senate Rule Committee’s website, beginning at 10AM Eastern time…

One of the FEC nominees is Allen Dickerson, an active member of the First Tuesday Lunch Group of public policy lawyers and advocates, who was nominated last September. The other two nominees are Shana M. Broussard and Sean J. Cooksey, who were both announced in October.

Allen Dickerson is Legal Director of the Institute for Free Speech, where he leads a nationwide First Amendment litigation practice. Previously, he was an Associate with Kirkland & Ellis, LLP. He also serves as Captain in the Judge Advocate General’s Corps, United States Army Reserve. He received his undergraduate degree from Yale College and his J.D. from New York University School of Law…

The FEC is broken, and has been for a long time. It would help the agency if it were able to function, which is why Senatorsmembers of the First Tuesday Lunch Group, and others have been calling for months for the confirmation of new Commissioners. 

Letter from members of First Tuesday Lunch Group in support of Allen Dickerson

We are Democrats, Republicans, independents and non-partisans. We meet monthly to discuss current legal issues in campaign finance law and developments in public advocacy. These nonpartisan discussions help candidates, news media, government officials, and other Americans navigate difficult and complex federal laws…

Today we write as individuals to urge the Senate to move quickly to restore the FEC’s ability to function. 

We particularly write in support of the nomination of Allen Dickerson to the FEC. Allen Dickerson has been an active, knowledgeable participant in our discussions of complicated campaign finance, constitutional, and legal questions. We have worked with him or observed his work and character over the years and believe that he is especially well-qualified for the position. He listens to perspectives from all sides, responds courteously and thoughtfully to differing views, and provides his own views clearly and objectively. He has added valuable information and advice on many occasions, and leads some discussions on legal and constitutional questions. We believe those qualities will be helpful on the FEC. 

We urge the Committee and the Senate to act swiftly to confirm Allen Dickerson as a Commissioner of the FEC.

The Courts

The Advocate: After march against Amendment 5 stymied in Gramercy, Rise St. James challenges parade law

By David J. Mitchell

A lawsuit alleges the town of Gramercy’s parade ordinance amounts to an improper and sweeping ban on political and commercial speech that can only be eased at the discretion of local leaders, violating the First Amendment.

Sharon Lavigne, an outspoken critic of continued industrial development in St. James Parish, and the group she founded, Rise St. James, make that allegation in a new federal lawsuit against Gramercy Mayor Steve Nosacka and the town government.

The lawsuit alleges that a $10,000 bond requirement and other rules in the town’s parade ordinance forced her group to abandon plans to hold a protest march in Gramercy against a proposed constitutional amendment Oct. 17…

“This case illustrates exactly why the adherence to the First Amendment matters,” said Katie Schwartzmann, director of Tulane Law School’s First Amendment clinic. “RISE St. James was not able to be heard by the people of Gramercy on an issue that matters greatly to that community. This permitting scheme functioned to silence the citizens, which is deeply offensive to our shared values as Americans.”

The First Amendment clinic is representing Lavigne and Rise St. James. They seek to have the town ordinance declared unconstitutional and to have the town barred from enforcing it. The plaintiffs are also seeking nominal damages and attorneys’ fees and costs.

Congress

Roll Call: Pelosi, Democrats renew push to overhaul election, campaign finance laws

By Kate Ackley

Speaker Nancy Pelosi said Monday she would press ahead early next year with a campaign finance and elections overhaul, even as the measure may face the same Senate fate it did this Congress: doom. 

House Democrats passed their signature overhaul measure in March 2019 and dubbed it HR 1, indicating its priority. Senate Majority Leader Mitch McConnell blocked it in his chamber, however.

Even though the Senate majority for the 117th Congress hinges on two runoff elections in Georgia, Democrats and their outside allies said they would still push for the measure, spotlighting McConnell’s resistance…

Pelosi and Sarbanes said during the call that they expect the House to move early next year to pass a bill similar to the current measure, which stretches hundreds of pages. It would set up an optional program to match contributions candidates receive from small donors with six times that amount from the government, [among other provisions]…

Fred Wertheimer, who runs the campaign finance overhaul group Democracy 21, noted that the 2020 elections shattered previous spending records with an estimated price tag of some $14 billion, including $2.6 billion in outside spending. He said the public matching funds system was sorely needed.

“Without providing candidates with this alternative way to finance their campaigns, political money corruption in Washington will continue and only grow far worse,” he said.

Politico: Tech CEOs to face bitter and bitterly divided Congress over election posts

By Cristiano Lima and Steven Overly

The partisan tension will be on full display Tuesday as the CEOs of Facebook and Twitter testify before the Senate Judiciary Committee in the first congressional examination of their performance since President-elect Joe Biden’s victory…

“I want to focus on making certain that they don’t choose winners and losers in 2022, 2024 … These guys have got to realize that they are not God and they have no right to be blocking someone’s free speech,” Sen. Marsha Blackburn (R-Tenn.) said Monday, referring to actions the companies took to limit the spread of false and misleading statements by Trump and his allies.

Democrats plan to hammer the companies for not taking more actions against those and other posts.

“I recognize the steps – really, baby steps – you have taken so far,” Sen. Richard Blumenthal (D-Conn.) says in his prepared remarks for the hearing. “But destructive, violence-inciting misinformation is still a scourge on both your platforms. You must do much more.” …

At Tuesday’s hearing lawmakers are expected to again raise the specter of rolling back that legal shield, Section 230, which Silicon Valley credits with helping create the internet. 

FEC

Bloomberg Government: Election Panel Set to Be Revived But Likely to Remain Deadlocked

By Kenneth P. Doyle

[S]ome campaign finance experts doubt that the restoration of a voting quorum – which the FEC has lacked for all but a few weeks since September 2019 – will end the history of gridlock on the six-member panel…

“Unfortunately, I will not be surprised if we continue to see the Commission continue to deadlock along ideological lines when they consider action on enforcement cases,” said Democratic election lawyer Brett Kappel, who’s practiced before the FEC for 30 years…

Before it lost a voting quorum last year, the commission frequently broke along party lines, with Democrats pushing for more aggressive enforcement of campaign finance laws to prevent corruption and Republicans balking due to concerns about free speech…

Former Republican FEC Commissioner Lee Goodman said that the reconstituted commission may be able to reach agreement in select areas, such as a new disclaimer rule for digital ads.

“So long as Commissioner Weintraub is open to compromise, I’m sure there are issues where a new set of commissioners can find consensus,” said Goodman, who works at the law firm Wiley Rein…

The Senate Rules and Administration Committee’s top Democrat Amy Klobuchar (Minn.) supports the confirmation of three FEC nominees that would restore a quorum on the panel…

“The FEC needs to be fully functioning so it can enforce our nation’s campaign finance laws,” Klobuchar said in a statement. “However, the timing of these nominations cannot be ignored. We need to stop treating the agency that’s charged with keeping corruption out of our elections like a political pawn.” 

Donor Privacy

Philanthropy Roundtable: Security Threats? Donor Privacy Matters

By Debi Ghate

A few weeks ago, the Chronicle of Philanthropy published my letter to the editor asking the publication to recognize that many right-of-center nonprofits have faced significant security threats over the years. I argued that as a sector, we should be concerned about all forms of threatened violence, regardless of whether it’s aimed at progressive nonprofits, conservative organizations, or anyone in between.

Since then, another example of why security isn’t just a one-sided issue has come to my attention. On October 30, one of my colleagues at the Roundtable circulated an article detailing the targeting of conservative groups in the Washington, D.C., area…

In addition to listing the names and addresses of these organizations, the group encouraged its activists to block the roads and generally attempt to intimidate people who work at these organizations…

Rather than vigorous debate about ideas and their merits, we’ve come to a point where nonprofits of all ideological stripes are concerned about their security and are appealing to their funders to help them keep their staff and offices safe…

[G]iven the tactics the threatening groups are using, including publishing names and addresses, will donors themselves also be put at risk while trying to help with this urgent need?

This is one of many reasons donor privacy is critical in the sector. Donors should be able to support causes that others may find controversial, and do so without the threat of intimidation and physical violence. 

Online Speech Platforms

The Atlantic: Why Obama Fears for Our Democracy

By Jeffrey Goldberg

[Former President Barack Obama] traces the populist shift inside the Republican Party to the election that made him president…

The populist wave was abetted by Fox News and other right-wing media outlets, he said, and encouraged to spread by social-media companies uninterested in exploring their impact on democracy. “I don’t hold the tech companies entirely responsible,” he said, “because this predates social media. It was already there. But social media has turbocharged it. I know most of these folks. I’ve talked to them about it. The degree to which these companies are insisting that they are more like a phone company than they are like The Atlantic, I do not think is tenable. They are making editorial choices, whether they’ve buried them in algorithms or not. The First Amendment doesn’t require private companies to provide a platform for any view that is out there.”

He went on to say, “If we do not have the capacity to distinguish what’s true from what’s false, then by definition the marketplace of ideas doesn’t work. And by definition our democracy doesn’t work. We are entering into an epistemological crisis.”

Biden Transition

Wall Street Journal: Washington Lobbyists Know Biden Well-as Their Former Boss

By Julie Bykowicz and Brody Mullins

Mr. Biden, unlike the four most recent presidents, has deep ties to the Washington establishment from his 44 years in the Senate and as vice president. He named at least 40 current and former registered lobbyists to his transition team.

For much of his career, Mr. Biden has advocated for policies that he said would reduce the influence of lobbyists and special interests, including pushing for expanded government financing of political campaigns.

His campaign platform included seeking legislation that would require lawmakers to publicly disclose meetings and communications with any lobbyist or special interest trying to influence the passage or defeat of a specific bill…

The incoming Biden administration must quickly hire thousands of people and hasn’t said that it will exclude registered lobbyists. Both the Trump and Obama administrations had policies against hiring lobbyists, but both presidents made exceptions to their own rules.

The States

Chicago Tribune: Pritzker, Lightfoot show Illinois style of hypocrisy with COVID-19 restrictions

By Patrick J. Hughes

When Republicans from Will County tried to hold a Fourth of July picnic outdoors on a farm, they were faced with crowd-size limits imposed by Illinois Gov. J.B. Pritzker. They sued, alleging the limits violated their First Amendment rights, but Pritzker went to court to double-down.

When the Illinois Republican Party tried to hold rallies in the weeks leading up to the election, Pritzker fought them tooth and nail – proclaiming that they would accelerate the spread of COVID-19.

But, when the news networks called the presidential race for Joe Biden recently, Pritzker could be found taking a victory lap through the streets of Chicago surrounded by other jubilant Democrats. He was out and about just days after being exposed to COVID-19 and while his public health director was telling everyday citizens to quarantine for 14 days following exposure, even after a negative test.

Pritzker’s hypocrisy is deeply wrong, and we’ve sued him because we believe it’s also unconstitutional…

When COVID-19 first began spreading in the U.S., Pritzker tried to use the Illinois State Police to enforce violations of his executive order, particularly his ban on large gatherings.

Yet during the unrest after the brutal killing of George Floyd by Minneapolis police officers, the order went unenforced against the thousands who protested, many under the banner of Black Lives Matter. Pritzker not only refrained from enforcing his own ban on group gatherings: he personally participated in a “March for Justice” with hundreds of other activists.

KCBX News: Pushback strong against proposed new county campaign finance law

By Greta Mart

District 1 supervisor John Peschong is spearheading a move to allow people to donate up to $25,000 to candidates for county offices like sheriff, district attorney and the five supervisorial seats…

One of Peschong’s stated reasons for the high limit is that it doesn’t apply to campaign contributors who are independent of the candidate, often known as PACs. And if PACs can accept unlimited contributions-then challenging candidates, “to be able to defend themselves, they need to be able to raise money,” Peschong said at the November 10 board meeting.

Supervisor Debbie Arnold echoed Peschong’s rationale.

“None of this prohibits individual expenditures,” Arnold said. “In other words, if you’re staying away from the candidate, you can send out a lot of messages, a lot of TV commercials, et cetera. You can have all that going on and the candidate without the ability to raise enough money, to get close to being able to communicate to the voters could be a disadvantage.”

Arnold also said that a low contribution cap would bar people new to political office.

“With stricter limits, I believe it would inhibit new candidates that tried to step up, uh, the opportunity to get their message out, get their name out, have people know who they are, what they’re trying to say, what they’re trying to do for their jurisdictions,” Arnold said.

Juneau Empire: Election reform measure builds lead in latest results

By Peter Segall

Votes approving a package of election reforms have eked out a narrow lead, according to the most recent results from the Alaska Division of Elections.

If it passes, Ballot Measure 2 would establish open primaries, ranked-choice voting and add additional financial disclosure requirements in state elections.

“Alaskans felt they didn’t have the choices they wanted, that legislators weren’t really accountable to them, they were accountable to the (political) party,” said Scott Kendall, legal counsel for Alaskans for Better Elections, the group sponsoring the initiative…

Sunday evening DOE results showed yes votes with a lead of 170,345 or 50.5% of the vote to 167,129, or 49.5%. The measure proved quite popular in Juneau, winning in both the borough’s districts by a significant margin…

Measure 2’s supporters include the Alaska League of Women Voters, the Alaska State Employee Association and the Alaska Libertarian Party.

The group opposing the measure, Defend Alaska Elections, said the measure would create confusion for voters and was being pushed by outside special interest groups.

Tiffany Donnelly

Tiffany Donnelly

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

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