Daily Media Links 2/6

February 6, 2019   •  By Alex Baiocco   •  
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In the News

C-SPAN: House Oversight and Reform Committee on H.R. 1 Legislation (Video)

The House Oversight and Government Reform Committee held a hearing on H.R. 1, a bill on voting rights, campaign finance and ethics rules. Witnesses included members of several oversight and ethics organizations. Rep. Elijah Cummings (D-MD), who chaired the committee hearing, spoke out about protecting voter rights, saying he would “fight until the death” to make sure every citizen, no matter political affiliation, would have the right to vote. Ranking member Jim Jordan (R-OH) said the legislation was political retribution on President Trump and a way to stifle the free exchange of ideas. 

(Ed. Note: IFS Chairman and Founder Bradley A. Smith testified before the committee on threats to free speech in H.R. 1.)

Washington Examiner: Stop saying HR1 is ‘For the People’ when it’s only ‘For the Politicians’

By Alex Baiocco

Democratic leaders of the House believe the best way to convince people Congress should have more power over political advocacy is to scare them about the influence efforts of “special interests.” They’d like you to fear “big-money and corporate special interests” along with “well-connected special interests.”

But often lost among those who push for more campaign finance regulation is the effect that such regulations have on groups that do not have massive budgets, are not large corporations, or aren’t well-connected. These are the groups hit hardest when government regulations make civic engagement more legally risky, more complex, more burdensome, and more expensive. In fact, imposing more rules on advocacy (which come with compliance costs and risks) is the best way to ensure that only the most connected and most well-funded groups participate in our democracy at all.

It is not a threat to democracy that groups of people with specific policy preferences (or “special interests”) are constantly attempting to influence those in power. The freedom of groups to let Congress know what policies their members support or oppose is fundamental to democracy. In fact, the very existence of H.R. 1 itself can be traced to years-long efforts by advocacy groups (many of which are very well-connected, have lots of money, and receive corporate contributions) with a “special interest” in passing more campaign finance regulation.

House Democrats have dubbed H.R. 1 the “For the People Act.” But the power granted in this bill is not going to the people. It’s going to politicians. The best way to preserve “government of, by and for the people” is to reduce the government’s power to control political speech.

National Review: Democrats’ Astoundingly Unconstitutional Campaign-Finance Bill

By David French

The bill contains a section misleadingly entitled “Stopping Super PAC-Candidate Coordination” that dramatically expands government regulation of political speech and contact with candidates for public office. These provisions not only work to flatly prohibit constitutionally protected speech, but their sheer scope would also chill a considerable amount of protected speech as law-abiding citizens try to steer clear of violating broad and vague laws.

As Bradley Smith argues in a comprehensive Institute for Free Speech analysis of the legislation, “The goal seems to be to limit discussion of candidates to the candidates and parties themselves, at the expense of the public at large.”

Moreover, in a time of public naming and shaming, when death threats are the common response to public participation, the bill contains a version the so-called DISCLOSE Act, and the transparency requirements are extreme. Quite simply, it represents a form of government-mandated doxxing. For example, it requires any “covered organization” that makes “campaign-related disbursements” aggregating over $10,000 in an election cycle to file a disclosure listing the name and address of any “beneficial owner” of the organization – and that’s just the beginning of the name-and-address disclosure requirements…

The bill’s inherent censorship, mandatory doxxing, and startling overbreadth are rendered by the bill’s much-vaunted “revamp”of the Federal Election Commission…

HR 1 would shrink the commission to five members appointed by the president (no more than two can be of the same party), but the FEC can take action on majority vote alone. Thus, the FEC can act empowered only by the president’s partisan and independent appointments, over the unanimous objection of members from the opposing party.

New from the Institute for Free Speech

Chairman Bradley Smith Testifies Before House Oversight Committee on H.R. 1

Institute for Free Speech Chairman Bradley A. Smith will testify before the House Committee on Oversight and Reform at a 10:00 AM hearing on H.R. 1, also known as the “For the People Act of 2019.” Smith’s testimony explains that the bill would restrict First Amendment rights to speak and associate with others, benefitting politicians at the expense of the public.

“Despite proponents’ insistence that H.R. 1 is ‘For the People,’ the bill is anything but,” states Smith’s testimony. “More appropriately labeled the ‘For the Politicians Act,’ H.R. 1 would make seismic changes to the long-held ability of Americans to speak and associate with other Americans on the issues about which they are passionate. The bill would radically transform oversight over the labyrinth of laws that regulate political speech, from its historic bipartisan structure to partisan control. It would impose onerous and unworkable standards on the ability of Americans and groups of Americans to discuss the policy issues of the day with elected officials and the public. Other sections of the bill would violate the privacy of advocacy groups and their supporters, stringently regulate political speech on the Internet, and compel speakers to include lengthy government-mandated messages in their communications. The proposal would also coerce Americans into funding the campaigns of candidates with which they may disagree in a system that research has proven hasn’t worked elsewhere. These issues represent only the tip of the iceberg of what’s included in H.R. 1.”

To read the full written testimony, click here, or go to: https://www.ifs.org/wp-content/uploads/2019/02/2019-02-06_Smith-Written-Testimony_US_HR-1_House-Oversight-Committee.pdf.

Amicus Brief: State of Washington v. Grocery Manufacturers Association

In what the Attorney General has called a “historic decision,” Washington authorities have imposed an unprecedented fine that will chill “speech about public issues and the qualifications of candidates for elected office,” a category that “commands the highest level of First Amendment protection.” Williams-Yulee v. Fla. Bar, 575 U.S. ___, 135 S. Ct. 1656, 1665 (2015). The Court of Appeals rejected the trebling of that penalty, but the Grocery Manufacturers Association (“GMA”) still faces a $6,000,000 fine-a death sentence for most groups. Such substantial penalties for what is, after all, technical filing errors concerning political speech raise questions under both the First and Eighth Amendments and their state equivalents. This Court should review the decision below and clarify a test for exacting scrutiny, as well as address how lower courts should weigh large fines imposed where core constitutional rights are at stake.

ICYMI

Analysis of H.R. 1 (Part Three)

By Bradley A. Smith

Under the guise of “Stopping Super PAC-Candidate Coordination,” H.R. 1 would place sweeping new limitations on speech about campaigns and public affairs. It does so in a very complex, vague, and unintuitive manner. The provisions are so complex and open to so many possible interpretations that the discussion below may well understate the chill this portion of the legislation might place on speech.

These limitations would reach far beyond campaign speech to regulate discussion of legislative issues and public affairs. The restrictions also extend far beyond “super PACs” to apply to literally any civic or membership organization that engages in such discussion. For advocacy groups, unions, and trade associations, several of the limits proposed in H.R. 1 would operate as a total ban on speech.

The goal seems to be to limit discussion of candidates to the candidates and parties themselves, at the expense of the public at large. However, even candidates are likely to find their speech severely restricted were H.R. 1 to become law.

PDF of Legislative Brief available here

Part One available here

Part Two available here

Congress

New York Times: Senate Passes Bill That Rebukes Trump and Opposes Israel Boycott

By Catie Edmondson

Republicans overwhelmingly backed Mr. Rubio’s bill, reigniting a fracas over political support for the B.D.S. movement…

“It is designed to see that the B.D.S. is tamped down and is not appropriate to use against our friend, Israel,” said Senator Jim Risch of Idaho, the chairman of the Senate Foreign Relations Committee.

Some senators, including Senator Bernie Sanders, independent of Vermont, and Senator Sherrod Brown, Democrat of Ohio, refused to support the bill, citing concerns raised by activist groups that the provision was an unconstitutional stifling of their right to protest.

Senator Rand Paul of Kentucky, the lone Republican opposing the bill, delivered an impassioned denunciation on Tuesday. “The founding fathers would roll over in their graves if they knew what we were doing today,” he said, adding that the Boston Tea Party was political speech in the form of a boycott.

“Free speech, the First Amendment, is about allowing language you don’t like,” Mr. Paul said. “It’s about allowing boycotts you may not like.”

The American Civil Liberties Union also upbraided the legislation, saying in a statement that “the Senate chose politics over the Constitution and trampled on the First Amendment rights of all Americans.”

Mr. Rubio swiftly pushed back.

“While the First Amendment protects the right of individuals to free speech, it does not protect the right of entities to engage in discriminatory conduct,” he wrote in an Op-Ed in The New York Times. “Moreover, state governments have the right to set contracting and investment policies, including policies that exclude companies engaged in discriminatory commercial- or investment-related conduct targeting Israel.”

CNN: House chair: Why I’m no longer accepting corporate PAC money

By U.S. Rep. Jim McGovern

Of course it takes money to win elections. But the never-ending fundraising required to win an election takes too much of our attention away from the real work of serving our constituents and our country. It also makes individuals who are not well off or well-connected think twice before running for office.

That’s why I’m proud that the new Democratic majority in the House proposed, as one of our first items of business, H.R. 1 — a sweeping elections and campaign reform bill that will remove the roadblocks many eligible Americans face on their way to the ballot box and help end the dominance of big money in politics. As the new chairman of the House Rules Committee, I look forward to bringing H.R. 1 to the floor for debate.

But I’ve also come to believe that I must do more than just support legislation to end the dominance of big money in politics. I need to change the way I run my own campaign fundraising.

Over the past year, I’ve been asked by my constituents whether I would stop taking corporate PAC money for my campaign. I’ll be honest — at first, I was reluctant to consider such a big change. And It’s important to state that I’ve never let a donation from anyone influence my vote. If corporate PACs have tried to buy my vote by cutting me a campaign check, they’ve ended up with a low return on their so-called investment. My voting record speaks for itself. Still, I was hesitant that I would put myself at a disadvantage against a well-funded opponent.

But our country is in trouble. Our system is rigged to favor those at the top. And I believe the perception of corruption, even where it doesn’t exist, must be addressed if we’re going to restore faith in our government.

National Law Journal: Sheldon Whitehouse Confronts ‘Anonymously Funded’ SCOTUS Amicus Briefs

By Tony Mauro

Sen. Sheldon Whitehouse, D-Rhode Island, has launched a campaign to reform what he calls the “fecklessness” of the U.S. Supreme Court’s rules requiring the disclosure of who is behind amicus curiae briefs filed with the court.

Candidates and Campaigns 

NPR: Democratic Presidential Hopefuls Compete To Spurn Establishment Cash

By Peter Overby

One possible reaction to this rejection of corporate money in politics: So what?

“You know in some ways the commitment for a presidential candidate not to take PAC money is a really weak commitment, because presidential candidates generally don’t take much PAC money,” said Jennifer Victor, a political scientist at George Mason University.

Case in point: Sen. Marco Rubio, R-Fla., was the leading recipient of PAC money in the 2016 presidential contest. His total from all PACs – not just the corporate sector – came to barely 2 percent of his campaign receipts…

The president of the D.C.-based National Association of Business PACs, Catherine McDaniel, pointed out in an email to NPR that corporate PACs are funded by employees, not from corporate accounts. She said “some candidates” might consider the boycott good politics, but “we think it does a great disservice to all those Americans who work hard for a living and want to make a positive contribution to our democracy.”

The candidates’ commitments go well beyond refusing corporate PAC money. Warren and Castro say they won’t take funds from any PAC, apparently shutting out PACs representing unions, environmental groups and other progressive stalwarts. Warren, Harris, and Gillibrand will just say no to money from federally registered lobbyists, and say they don’t want support from superPACs either. That’s hard to control, though, because superPACs by law cannot coordinate with candidates. Booker is on board with the no-lobbyist-dollars pledge.

Campaigns & Elections: 4 Reasons Campaign Finance Law (And Lawyers) Matter More Than Ever

By Neil Reiff & David Mitrani

In the current atmosphere of hush-money payments and communications with foreign adversaries, the press is looking to cover campaign finance violations more closely and tend to devote more coverage to the charges themselves than to any potential outcome. “Political espionage,” the sort practiced by the right-leaning Project Veritas, has become more common. Now, opponents will try to bait a campaign into committing a violation.

The press is taking an increasing interest in campaign compliance and reporting violations. There’s no easier way to sidetrack a successful campaign with the disclosure of a major violation of campaign laws…

The FEC and state election authorities that regulate campaigns for state offices (as well as other agencies, including the Department of Justice) are becoming stricter about enforcement and levying heavier penalties more often.

While the prevailing narrative about the FEC is that they’re “deadlocked,” we see it differently. The Commission can decide to not be deadlocked at any time, and you don’t want to be the test-case that brings the Commission together to find a violation on an issue where you were counting on them to fail to find one because of a partisan split.

Also, the one thing that all regulators agree on is strong enforcement of the day-to-day requirements such as proper reporting limits and the enforcement of contribution limits and prohibitions.

The States

Auburn Citizen: NY campaign contribution limits increase as Cuomo seeks to lower ceiling

By Robert Harding

The new contribution limits established by the state Board of Elections allow individuals to donate $47,100 to statewide candidates in a general election. The previous maximum was $44,000. 

There are separate ceilings for Democratic and Republican primaries because the limit is calculated using a formula that includes the total number of voters enrolled with the party. For Democrats, the limit increased from $21,100 to $22,600. The limit for GOP primary candidates is $14,300, up from $13,374. 

The elections board also raised contribution limits for party committees – $117,300, up from $109,600 – and candidates for state Legislature. The limits for donors to state Senate campaigns increased from $7,000 to $7,500 for the primary election and $11,000 to $11,800 for the general. 

The limit for state Assembly donations increased from $4,400 to $4,700 for the primary and general elections. 

State law requires automatic contribution limit increases every four years after a gubernatorial election…

Gov. Andrew Cuomo included campaign finance reform in his 2019-20 state budget plan. He proposed lowering the contribution limits for statewide and state-level offices. 

Under Cuomo’s plan, a $25,000 limit would be in place for statewide candidates ($10,000 for the primary and $15,000 for the general election). State Senate candidates would be subject to a $10,000 cap, $5,000 for the primary and $5,000 for the general. There would be a $6,000 maximum for state Assembly candidates, $3,000 each for the primary and general elections. 

Cuomo also proposed providing a six-to-one match for candidates who receive small donations and banning corporate campaign contributions.  

Boston Globe: Mass. may reduce how much money unions can donate to back political candidates

By Matt Stout

Labor unions are currently allowed to give up to $15,000 annually to a single candidate. But draft regulations quietly released Friday by the Office of Campaign and Political Finance would slash the limit to $1,000, as well as cap donations to political action committees at $500 and to a political party’s committee at $5,000.

The move, while effectively bringing unions under the same limits imposed on individuals, would eliminate a decades-old advantage labor organizations have enjoyed in state and local elections in Massachusetts. The higher donation limit, set in the 1980s, applies to unions and nonprofits that aren’t corporate-funded…

Regulators will hold a public hearing in early March and accept comments until March 15 before releasing a final version of the regulations on May 1…

“The $1,000 limit was chosen because it’s a reasonable number that is used in the statute for caps on individuals,” Tait said. The rules were reexamined following a Nov. 7 request from the watchdog group Common Cause Massachusetts.

Derided as a loophole by critics, the $15,000 cap survived a challenge before the Supreme Judicial Court in September, when it upheld the longstanding ban on direct corporate gifts. But even then, the court implied – in a footnote – that the campaign finance office should review the regulation.

“We just feel that all campaign finance limits should be the same for all kinds of organizations, and any exceptions should have a really clear reason,” said Pam Wilmot, executive director of Common Cause Massachusetts. “The public can’t have confidence in our law if it looks like one set of players is favored above the others.” …

Several labor groups submitted comments challenging a cut to the $15,000 limit. The Massachusetts Teachers Association went further, urging the agency to index the limit to inflation – which would allow the $15,000 cap to gradually increase. “Unless the cap is indexed, the ordinary course of inflation will ultimately render meaningless what unions and nonprofit organizations can lawfully contribute without crossing the ‘political committee’ threshold,” Ira Fader, the union’s general counsel, wrote Nov. 30. 

Alex Baiocco

Alex Baiocco