Daily Media Links 1/20: Tying Up the First Amendment With Red Tape, Supreme Court to Review Bans on Solicitations in Judge Races, and more…

January 20, 2015   •  By Scott Blackburn   •  
Default Article
In the News

Reuters: Citizens United gives freedom of speech back to the people 
By Bradley A. Smith 
It’s not merely that dire predictions about Citizens United have not come true. It is that Citizens United is having positive effects on U.S. elections.  
The most obvious is in political competition. Citizens United has made it far easier for challengers to compete with incumbents, particularly challengers in late-breaking races.
The first two elections under Citizens United – the 2010 midterms and the 2012 presidential election — yielded the lowest two-cycle incumbent reelection rate in the House of Representatives since 1966.
The 2014 race was also more fluid than most election cycles. The advantage that regulation of campaign contributions and spending gives to incumbents is well documented. Indeed, after passage of the Federal Election Campaign Act in 1974, incumbents, who had outspent challengers, on average, approximately $1.5 to $1 quickly began outspending them $4 to $1 — and remains there today.
Cato Institute: Campaign Finance Censors Lose Debate to Reddit 
By Trevor Burrus
Surprisingly, at least to me, the AMA was a disaster. Reddit caters to younger people and, as such, it is generally quite left-wing. The Reddit “Politics” community, in particular, is known for having a substantial left-wing tilt. I had thought the community would rally around the advocates—pat them on the back, complain about the Koch brothers, and pontificate on how no “real” policy change can occur until “big money” is silenced.
Instead, the community not only asked excellent and difficult questions, but they clearly identified the fundamental problems with the advocates’ position.
The advocates didn’t help their cause by not answering many questions. This is a big Reddit no-no, a violation of “Reddiquette.” It is certainly a bad idea to create a thread called “Ask Me Anything” and then answer only a few questions, while ignoring the hard ones.

Wall Street Journal: Tying Up the First Amendment With Red Tape 
By Robert Everett Johnson And  Paul Sherman
If anything, Florida’s law obfuscates the real issues. Whatever your position on the risk of corruption posed by judicial elections, nothing is gained by hiding the fact that fundraising is a necessary part of a competitive campaign. 
Florida’s law is a perfect example of a broader phenomenon—cosmetic, feel-good campaign-finance regulation with no actual benefits. To name another: The 2002 McCain-Feingold law’s absurd “Stand By Your Ad” requirement, which compels candidates to waste valuable advertising time informing listeners that—surprise—they “approve this message.” Rules like this and Florida’s ban accomplish nothing while forcing political speakers to hire an army of lawyers to ensure compliance. 
As Ms. Williams-Yulee demonstrates, even lawyers have trouble navigating these regulations. Further confirmation of this sad fact: the recent travails of Mayday PAC, a group founded by Harvard Law professor and campaign-finance regulation proponent Lawrence Lessig, that is now under federal investigation for failure to comply with ad disclaimer rules in the 2014 cycle. The result of all this campaign-finance red tape is that politics becomes an insiders’ game, with the deck stacked against novice candidates.
And what do we have to show for these burdens on political speech? Nothing. Does anyone believe that judges in neighboring Georgia, where a similar solicitation ban was struck down by the 11th Circuit Court of Appeals in Weaver v. Bonner more than a decade ago, are more likely than judges in Florida to show bias toward political contributors?
NY Times: Supreme Court to Review Bans on Solicitations in Judge Races 
By Adam Liptak
Tuesday’s case is a First Amendment challenge to the solicitation bans, which have been struck down by four federal appeals courts. But most of the American legal establishment supports them. The American Bar Association and a group representing the chief justices of every state have filed briefs urging the Supreme Court to uphold the bans.
Opinions seem more divided among incumbent judges on lower courts and candidates seeking to challenge them. They say direct requests are more efficient than ones made through campaign committees and are no more apt to lead to corruption.
Marcus Carey, who twice lost judicial elections in Kentucky, said there was no point to requiring that contribution requests be made through intermediaries.
“You create this farce,” he said. “I have to tell them who to call.”
More Soft Money Hard Law: Intuition and Polling in The Case for Prohibiting Personal Fundraising by Judicial Candidates
By Bob Bauer
As the Supreme Court prepares to hear argument on the challenged ban on personal fundraising by judicial candidates, writers arguing for the preservation of this prohibition continue to make their case. Kate Berry of the Brennan Center replies to a posting here and disagrees with the proposition that it is hard to see a major benefit from a restriction on speech described as “modest.” Garrett Epps shares her position that the prohibition should be upheld. In each case, the writers maintain that if we have to have judicial elections, they should be subject to special rules to safeguard public confidence in an independent judiciary and that this is one such rule.
What is offered in support of this position?
Epps argues in general terms, appealing to the intuition that “there is a difference between being asked by an employee to give money, and being asked by the judge himself.” If we repair to public opinion as the standard for judging the significance of the difference, there is good reason to question Epps’ assertion. Does public confidence truly rest on a work-around—the judicial candidate instructing someone else to ask for money on her behalf, rather than making the request herself? The judge approves the solicitation, picks the person to make it, knows who gives and who does not, and may thank the contributor. One former judicial candidate tells The New York Times that it is a “farce” and a “game”. But in Epps’ view, barring a direct candidate solicitation will help shore up public confidence in the judiciary, or keep it from being further eroded, and “preserve some of the independence the federal judiciary guards for itself”.
SCOTUSBlog: Argument preview: Judges, politics, and money 
By Lyle Denniston
If campaign money is a threat to judicial impartiality, but the First Amendment is understood to treat political money as speech, how far can states go to regulate it?  The Supreme Court is no stranger to the abiding controversy over money in politics, and takes that up again this week in a Florida judicial election case.
Judges are still elected in thirty-nine states, and in all but nine of those states, there is a law or an ethics code provision that bans a judicial candidate from personally asking for campaign donations.  That, it appears, is more preferable as a remedy than getting rid of judicial elections altogether, or relying on judges to disqualify themselves in specific cases.
A civic-minded Tampa lawyer, who decided in September 2009 that “the time has come for me to seek elected office,” is at the center of a case testing the constitutionality of that kind of ban.  Lanell Williams-Yulee sent out a mass mailing saying that she was running for county judge, declaring: “I want to bring fresh ideas and positive solutions to the Judicial bench.”  Her plea for money was modest indeed, by modern campaign standards: “$25, $50, $100, $250, or $500.”
Candidates, Politicians, Campaigns, and Parties

Yahoo: The GOP’s biggest tech challenge for 2016 is closing the small-donor gap 
By Jon Ward
Democrats have their own major donors, but more importantly, they have recruited millions of small-dollar donors whose credit cards are now on file in vast databases and who can be approached at any time — and on a recurring basis — with small asks that can quickly add up to a giant infusion of campaign cash.
Multiple Republican strategists interviewed by Yahoo News described this disparity as the biggest digital gap Republicans have to play catch-up on ahead of the 2016 presidential election. Not a better voter database. And certainly not Twitter followers or Facebook likes — low-dollar fundraising.
“Republicans were outraised by $400 million online in the last two presidential elections and had at least 10 million fewer active emails in each of those elections. Closing this gap and then surpassing the Democrats needs to be our ‘moon shot,’” said Patrick Ruffini, cofounder of Echelon Insights and a former top digital staffer at the Republican National Committee and on the 2004 Bush campaign.

More Soft Money Hard Law: Regulatory Matters: On Fines, Supreme Court “Recommendations”, and the FEC Hearing on Responses to McCutcheon
By Bob Bauer
A few notes on FEC enforcement policy, the Supreme Court’s policy preferences, and the FEC’s February 11 hearing on the regulatory response, should there be one, to the Supreme Court’s decision in McCutcheon.  
State and Local

Montana –– Missoulian: Changes afoot to tighten campaign finance reporting laws in Montana 
By Keila Szpaller
In the most recent election cycle, Motl called on the Datsopoulos, MacDonald and Lind law firm to register as a political committee and report its expenses. Collectively, the firm’s lawyers pooled $12,060.75 to put toward local and statewide races, according to their campaign finance report.
The firm’s donations made up relatively small percentages of local candidates’ coffers, roughly 5 percent at the most. This month, all the local candidates the firm supported took oaths of office, including a justice of the peace, sheriff and county attorney.
Motl agreed the potential exists for money to compromise justice, but he said the solution is in timely reporting and disclosure.
Wisconsin –– Wisconsin Reporter: GAB has a sudden change of heart on campaign finance reform  
By M.D. Kittle  
“(Beyond) the constitutional problems, it’s also incredibly complicated, and we have to remember that most of the people who are running for office are not lawyers and have a right to turn to the statutes as guidance as to what they need to do in order to stay on the right side of the law,” GAB Judge Elsa Lamelas said during last month’s accountability board meeting.
“And even those people who are running for public office who are lawyers, such as judges, may not be First Amendment scholars. It’s just gotten way too complicated,” she added.
The language of the statutes didn’t seem so convoluted and difficult to understand for board investigators assisting Democrat Milwaukee County District Attorney John Chisholm with his politically charged probe singling out dozens of conservative groups for possible campaign finance law violations.

Scott Blackburn

Share via
Copy link
Powered by Social Snap