Daily Media Links 12/6

December 6, 2018   •  By Alex Baiocco   •  
Default Article

Supreme Court

MassLive.com: Massachusetts campaign finance law on union donations appealed to U.S. Supreme Court

By Shira Schoenberg

Attorneys for the Goldwater Institute filed a petition on Wednesday asking the U.S. Supreme Court to take up its challenge of a Massachusetts campaign finance law that bans political contributions from businesses but allows contributions from unions.

“The Supreme Court in recent years has emphasized that the government cannot use its laws to favor some voices or some groups in politics over others,” said Jacob Huebert, lead attorney on the case for the Goldwater Institute, a conservative Arizona-based think tank…

Under current state law, unions and trade associations can contribute up to $15,000 to a candidate, even though individuals can contribute only up to $1,000 and businesses cannot contribute. (Businesses are allowed to make independent expenditures supporting or opposing a candidate.)…

A Superior Court judge, and then the Massachusetts Supreme Judicial Court in September, upheld Massachusetts’ ban on corporate contributions…

But Justice Scott Kafker, in a concurring opinion, noted that there are gaps in the U.S. Supreme Court case law. Kafker wrote that it remains unclear how the U.S. Supreme Court will reconcile older cases that allow different treatment of unions and businesses with the 2010 Citizens United decision, which rejects that distinction with regards to independent expenditures.

Huebert plans to argue that the Massachusetts law is unconstitutional under the rights to free speech and equal protection.

“We’re asking the Supreme Court to clarify the law and make clear government can’t use campaign finance rules to play favorites among groups in the political process,” Huebert said.

Gainesville Sun: State seeks to quash prison First Amendment case

By Jim Saunders

In a First Amendment dispute that has drawn attention from a wide range of groups, Attorney General Pam Bondi’s office this week asked the U.S. Supreme Court to turn down an appeal by a magazine that has been blocked from distribution to Florida prison inmates.

State attorneys filed a 44-page brief urging the Supreme Court to deny consideration of a long-running legal battle with Prison Legal News. A U.S. district judge and the 11th U.S. Circuit Court of Appeals sided with the state, which argues that advertisements in Prison Legal News pose security risks.

The brief filed Monday disputed arguments that the Florida Department of Corrections has violated First Amendment rights or that it has imposed a “blanket ban” on the publication. The brief said the department has blocked distribution of the monthly magazine because of ads for such things as three-way phone calling services, which can be used to facilitate crimes…

But in a petition filed in September asking the Supreme Court to take up the case, attorneys for Prison Legal News argued that “censorship” by the department violates free-speech and free-press rights.

“Publishers, reporters and advertisers have a constitutionally protected interest in communicating with prisoners, and prisoners have a right to receive those communications,” the 45-page petition said. “These protections are all the more important when the publication at issue is uniquely designed to inform prisoners of their legal rights, and a prison’s decision to silence that speech is all the more suspect when it is applied in a blanket manner to the entire incarcerated population based on bare assertions of security concerns without supporting evidence.”

National Review: Leveling the Campaign-Contribution Field

By Jacob Huebert

Unfortunately, under the guise of “campaign-finance reform,” some states have enacted laws that muzzle some groups but not others. Massachusetts, for example, has completely banned for-profit businesses from giving money to political candidates and committees. But it allows unions to give candidates and committees up to $15,000. The state also lets unions – but not businesses – create their own political-action committees, which they can use to give even more money.

This gives unions and pro-union candidates a political advantage over their natural rivals, employers and pro-business candidates. And that’s exactly the kind of government interference in politics that the First Amendment is supposed to prevent (campaign donations are considered the equivalent of speech). Yet in September, Massachusetts’s highest court upheld the scheme…

A federal appellate court took the same hands-off approach when it rejected a First Amendment challenge to Illinois’s campaign-contribution limits earlier this year. That scheme restricts the amounts every person and group in Illinois can give to candidates – except political parties and the leaders of the state legislature, who can give as much as they want in a general election, and much more than anyone else in a primary election…

On Wednesday the Goldwater Institute filed a petition for certiorari asking the Court to hear two small businesses’ case challenging the Massachusetts law. And the plaintiffs challenging the Illinois scheme are expected to file their own petition with the Court soon as well.

The Court should hear one or both of these cases and make clear that, when the government restricts political contributions, it can’t play favorites.

The Courts

Lexington Herald-Leader: Father of Alison Lundergan Grimes seeks dismissal of campaign finance charges

By Bill Estep

Federal campaign finance charges against well-known Kentucky Democrats Jerry Lundergan and Dale Emmons violate constitutional protections and should be dismissed, defense attorneys have argued.

Lundergan’s attorney, J. Guthrie True, recently filed six separate challenges to the indictment on free-speech and other grounds. Several motions seek to have all the charges dismissed, while others target only some of the charges.

The indictment charges that Lundergan and Emmons took part in a scheme to make illegal contributions through Lundergan’s company to the 2014 U.S. Senate campaign of his daughter, Alison Lundergan Grimes…

“Whatever merit the laws that the government alleges were violated may have in other situations, their application here cannot meet constitutional muster,” True wrote. “There is no real or perceived risk that a parent’s contributions to a child’s campaign raise the specter of quid pro quo corruption – specifically, the danger that the contribution will result in the child using their political office, once obtained, to benefit the parent – independent of the familial relationship.”…

Lundergan is charged with having consultants and vendors on Grimes’ campaign send bills to one of his companies, S.R. Holding, for their work instead of billing the campaign – an alleged improper “in-kind” contribution.

Emmons is charged with doing consulting work for the campaign but billing Lundergan’s company, receiving payment from the company rather than the campaign.

The indictment said Grimes’ campaign didn’t know about the payments. Lundergan and Emmons caused the campaign to file false reports with the Federal Election Commission, covering up the alleged improper spending, the indictment charged.

Techdirt: EFF Goes To Bat For Free Speech, Asks Appeals Court To Uphold Injunction Against California’s Stupid ‘Anti-Ageism’ Law

By Tim Cushing

Because the state is an idiot, the attorney general of California is appealing the federal court decision permanently preventing the state’s government from enforcing its ultra-stupid “anti-ageism” law. The law — which would do absolutely nothing to prevent movie studios from engaging in biased hiring — targeted the Internet Movie Database (IMDb), preventing it from publishing facts about actors and actresses. This asinine, First Amendment-trampling law was prompted by failed litigation against IMDb by an actress who felt she was losing roles to younger actresses because the site had published her birthdate.

The federal court needed only six pages to tell the state how terrible its law was and what impact it would have on protected speech. This ridiculous argument — supported by beneficiaries of the First Amendment (the Screen Actors Guild) — was quickly dismantled by the presiding judge:

“SAG-AFTRA contends that publication of facts about the ages of people in the entertainment industry can be banned because these facts “facilitate” age discrimination – an argument that, if successful, would enable states to forbid publication of virtually any fact. There is no support in controlling case law for the proposition that a state may ban publication of facts to impede a third party’s possible reliance on those facts to engage in discrimination.”

The lawsuit persists, thanks to the state’s infinite supply of time and other people’s money. The obvious First Amendment violations are being pushed again on appeal. The EFF — joined by The First Amendment Coalition, Wikimedia Foundation, Media Law Resource Center, and The Center for Democracy & Technology — has filed a brief [PDF] in support of IMDb and Constitutional lawmaking in general.

St. Louis Post-Dispatch: Arrest at St. Louis Women’s March violated woman’s free speech, lawsuit claims

By Joel Currier

A St. Louis County woman is claiming in a federal lawsuit that city police violated her First Amendment right during last year’s Women’s March in St. Louis by ordering her to move from the street to the sidewalk.

The Jan. 21, 2017, march, which drew more than 10,000 people downtown, was aimed at supporting causes affecting women and to protest President Donald Trump the day after his inauguration. Similar rallies were held around the country.

Jessica Langford is represented by the American Civil Liberties Union of Missouri in a federal lawsuit filed Thursday against the city. Langford says she was arrested during the march while walking in the street near Market and 16th street after an officer ordered marchers to move to the sidewalk.

Langford refused to move to the sidewalk and was arrested by Lt. Scott Boyher, then held in jail for about nine hours, her lawsuit says. The charge of impeding traffic and failing to obey the reasonable order of a police officer was later dismissed when Boyher and assisting Officer Adam Duke failed to appear at trial…

Langford’s suit claims that because the city doesn’t issue permits for protests, its ordinances applicable to public demonstrations are unconstitutionally vague and result in a violation of due process.

“St. Louis will continue to violate the law until its leaders proactively address the city ordinance and the lack of accountability in the St. Louis Metropolitan Police Department,” said Tony Rothert, the ACLU’s legal director said in a press release.

Candidates and Campaigns 

Roll Call: Elise Stefanik Wants to Play in Primaries to Help Republican Women

By Simone Pathé

New York Rep. Elise Stefanik recruited more than 100 women as the first female head of recruitment at the National Republican Congressional Committee. But only one of them prevailed, with many failing to make it through their primaries.

So Stefanik is stepping back from the NRCC to be involved where she thinks it matters.

“I want to play in primaries, and I want to play big in primaries,” she said in a phone interview Friday.

She plans to refocus and expand her leadership PAC to support women and what she called “nontraditional candidates.”

“I think it’s really important as a woman who faced a very competitive primary in 2014, we need to support those women earlier and learn the lessons of how effective the other side was in getting women through these competitive primaries,” she said.

Democrats will have 89 women in the House next year, including 35 female freshmen. House Republicans, in contrast, have dropped from 23 women to 13.

Stefanik won her 2014 GOP primary by 22 points, defeating the party nominee from the previous two cycles who had spent millions on his races. She had allies in Reps. Diane Black of Tennessee and Ann Wagner of Missouri, who cut an early check for her. She also benefited from millions in outside spending.

In thinking about how the party can help other GOP women, Stefanik cited EMILY’s List, which backs Democratic women who support abortion rights. (She spelled out the group’s acronym – “Early Money Is Like Yeast” – to make her point.) Across the aisle, she sees Massachusetts Rep. Seth Moulton’s work with veteran candidates as a model for how she can tap her own network.

Citizens United 

New York Times: After Citizens United, a Vicious Cycle of Corruption

By Thomas B. Edsall

In the eight years since it was decided, Citizens United has unleashed a wave of campaign spending that by any reasonable standard is extraordinarily corrupt…

In fact, there are scholars on both the left and right who agree with Citizens United because they think restricting campaign spending by businesses constitutes an incursion on First Amendment rights that could lead to censorship, for example, of books and newspapers.

Laurence Tribe, a professor at Harvard Law School, and Joshua Matz, an attorney in private practice, write in their 2014 book Uncertain Justice: The Roberts Court and the Constitution that

“Allowing government to control who can spend enough to get heard on a grander scale would render freedom of speech illusory.”

In a 2015 law review article, however, “Dividing ‘Citizens United’: The Case v. The Controversy,” Tribe faulted Citizens United for

“implausibly downplaying, and at times all but denying, the baleful corruption of American politics by means short of criminal bribery – by means that are lamentable precisely because they are lawful.”…

The detrimental role super PACs play in campaigns prompted Albert W. Alschuler, a professor at the University of Chicago Law School, and three colleagues – including Tribe – to argue in a 2017 working paper that the negative attack ads spawned by super PACS are in themselves corrosive and provide adequate grounds to ban such PACs and the unlimited contributions that fund them…

The States

MLive.com: ACLU calls charges against Michigan Senate candidate unconstitutional

By Ryan Stanton

The Washtenaw County Prosecutor’s Office alleges [Anuja] Rajendra falsely represented herself as the incumbent senator in her campaign literature on two occasions in July…

In a 48-page court filing on Dec. 4, the ACLU argued the Michigan law under which Rajendra is being charged is unconstitutional.

The ACLU’s position is that the First Amendment protects even allegedly misleading speech and does not allow for a law that empowers the state to police campaign speech and target statements in campaign literature for criminal prosecution…

One of her campaign mailers stated, “As a mom of four and as your State Senator, I want my kids and all kids in Michigan to have the same opportunity for quality education and success.”

Another stated, “As your State Senator, I’m steadfast in my commitment to ….”…

Those two specific statements are listed in court records as the reasons why Rajendra is now facing two counts of false incumbency designation …

The ACLU argues the Supreme Court has made clear the solution to misleading campaign speech is truthful speech, not imprisonment.

“Giving government officials the discretion to put candidates’ speech on trial could lead to prosecutions based on political favoritism,” [ACLU of Michigan Legal Director Michael Steinberg] said. “We truly hope the prosecutor will do the right thing and dismiss the charges against Ms. Rajendra. What young person is going to consider running for political office when a misunderstanding about the meaning of a statement made in the heat of a campaign could lead to a criminal conviction and jail?”

Associated Press: Judge finds major parts of 2016 campaign finance law illegal

By Bob Christie

Major parts of a massive rewrite of Arizona’s campaign finance laws enacted by the Republican-controlled Legislature and signed by Gov. Doug Ducey in 2016 violate the state Constitution, a judge ruled Wednesday.

Parts of the law illegally strip power from the Citizens Clean Elections Commission created by voters in 1998, according to the ruling by Maricopa County Superior Court Judge David J. Palmer. The power to investigate campaign finance violations and act as filing officer for candidates was handed to the secretary of state.

The rewrite also created large exemptions in what counts as a contribution, including allowing political parties to spend unlimited sums backing a candidate. That provision was broadly used in this year’s election by Republican and Democratic state parties. The Arizona Democratic Party, for instance, spent more than $2 million backing successful secretary of state candidate Katie Hobbs.

The law also allowed unlimited spending on legal fees, accounting and other types of support for candidates and political committees without being counted toward contribution limits.

Palmer ruled that all those provisions violate the Voter Protection Act, a voter-approved constitutional provision barring lawmakers from substantially changing voter-enacted laws.

The law was challenged by the Arizona Advocacy Network, some Democratic lawmakers and a labor union. The Clean Elections Commission joined the suit as a plaintiff.

Alex Baiocco

Alex Baiocco