In the News
New York Post: Democrats’ new campaign ‘reforms’ are a war on free speech
By Rich Lowry
As the Institute for Free Speech points out, the current campaign-finance rules limit expenditures that expressly advocate for the election or defeat of a candidate or refer to a candidate in public advertising shortly before an election. The idea is to have clear rules, so groups can promote their views without fear of running afoul of federal regulations.
HR 1 blows up this regime. It seeks to regulate any speech at any time that “promotes or supports the candidate, or attacks or opposes an opponent of the candidate,” a fuzzy standard that could catch up all manner of non-electoral messages…
HR 1 also widens the definition of coordination between a group and a candidate to encompass almost any communication…
Even if a group doesn’t coordinate with a candidate under this loose standard, it could still be deemed to have coordinated if it were founded by someone who goes on to become a candidate; relies on the professional services of someone who also did work for a candidate; or is run by someone who had conversations about a campaign with the relative of a candidate…
Proponents of HR 1 say it is necessary to rein in Super PACs, the frightening-sounding organizations that aren’t as unregulated as everyone believes (the Federal Election Commission gets reports of their expenditures and contributions). But as the Institute for Free Speech notes, the bill affects a much broader array of “trade associations, unions, business groups and advocacy organizations, such as Planned Parenthood and the National Right to Life Committee.”
Love them or hate them, these groups are part of the warp and woof of American public life, and they shouldn’t have to think twice before engaging in acts of persuasion that enrich and enliven our democracy, not corrupt it.
The Gazette: Iowa Democrats sponsor bill to curtail political speech
By Adam Sullivan
The Institute for Free Speech, a group opposing H.R. 1, wrote lawmakers to warn the bill is “so complex and open to so many possible interpretations” that it’s effects cannot be fully anticipated.
It seeks to massively expand federal restrictions on political speech with a set of reforms known as the Disclose Act. Tax-exempt interest groups like the National Rifle Association and Planned Parenthood could be subject to some of the same disclosure requirements as groups that explicitly support and oppose candidates.
Independent organizations play an important part in educating Americans about the impacts of public policy. Under this proposal, those groups – perhaps even including community nonprofits – would be forced to restrict their own speech, break the law or comply with invasive, costly disclosure requirements.
The American Civil Liberties Union, which supports many pieces of H.R. 1, cautions that the Disclose Act provisions would apply “vague and subjective standards to regulations of political speech.”
Historically, organizations that do not engage in explicit electoral advocacy have enjoyed broad free speech and privacy rights. The U.S. Supreme Court has interpreted Constitution to protect Americans’ right to freely associate with one another and pool their resources.
Christian Science Monitor: Democrats, citing Russia, move to block foreign funding in 2020 election
By Christa Case Bryant
Republicans, while acknowledging Russia’s previous attempts to sow dissension, see Democratic legislators’ measures as an overreaction to what was likely a minuscule percentage of overall spending in the 2016 election. They describe Democrats as using a foreign boogeyman to push through an agenda that predates Russian trolls – an agenda which they say would curtail American rights to privacy and free speech.
“You’re going to let a few hundred thousand dollars of Facebook ads bought by the rump state of the Soviet Union cause us to give up our speech rights?” asks Bradley Smith, the former head of the FEC who is now the chairman of the Institute for Free Speech in Arlington, Virginia. “You’ve got this kind of made-up crisis and these appeals to xenophobia, … and their solution is to apply restraints that will affect every American and not just these entities they are supposedly worried about.”
ConservativeHQ: HR 1 – The Democrat Plan To Turn America Into California
By CHQ Staff
Our friends at the Institute for Free Speech released an exhaustive analysis of three speech-chilling sections of HR 1. Those provisions would regulate political speech on the Internet, violate the privacy of advocacy groups and their supporters, and compel speakers to include lengthy government-mandated messages in their communications.
“By making it harder for Americans to speak about government, a better title for the bill would be the ‘For the Politicians Act,'” said Institute for Free Speech President David Keating.
The Institute’s analysis finds these sections of H.R. 1 would benefit politicians and campaign finance attorneys while harming the public. The legislation’s many restrictions and regulations on speakers would make it harder for Americans to promote ideas about government and to hold elected officials accountable. H.R. 1 would also subject speakers to increased costs from legal and administrative compliance, liability risk, and would harm donor and associational privacy for civic groups that speak about policy issues and politicians.
“H.R. 1 appears to be a slapdash effort to stitch together every unworkable and unconstitutional idea from the past decade about how to increase regulation of Americans’ free speech rights,” said Institute for Free Speech Senior Fellow Eric Wang. “While the bill may be dead on arrival, it is nonetheless a deeply troubling statement of Congress’s priorities and attitudes towards the First Amendment.”
Supreme Court
Salt Lake Tribune: The lengthy legal fight over Utah election law is over as U.S. Supreme Court refuses to accept GOP appeal
By Lee Davidson
Justices refused to hear the party’s challenge of that law, called SB54, rejecting the party’s arguments that it unconstitutionally interferes with its right to choose how to select its own nominees.
The Utah Republican Party Constitutional Defense Committee, a party arm that was given power to control the lawsuit, said the fight to erase SB54 is not over but will switch from the courts to the Legislature.
“We call upon our legislators to do the right thing and repeal this controversial law,” its written statement said.
It added that the decision imperils “the rights of assembly and speech of all private expressive associations,” including “political parties, labor unions, private colleges and universities, religious organizations and many others. There is far more at stake here than just the future of Utah’s SB54.” …
The Supreme Court’s refusal to hear the appeal keeps in place an earlier decision by the 10th Circuit Court of Appeals that upheld SB54.
“States must have flexibility to enact reasonable, common-sense regulations designed to provide order and legitimacy to the electoral process,” judges wrote in that decision.
They added that SB54 “strikes an appropriate balance between protecting the interests of the state in managing elections and allowing” Republicans “to express their preferences and values in a democratic fashion and to form associations as protected by the First Amendment.”
In its appeal to the Supreme Court, the Utah GOP argued that the high court previously ruled that political parties have a First Amendment right “to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.”
The Courts
ACLU: Court Blocks Unconstitutional Government Seizure of Mongols Motorcycle Club Trademark
By David Loy
Under the guise of a racketeering prosecution using a law known as RICO, the government sought to seize the Mongols Motorcycle Club’s trademark in its logo and strip members of the right to wear their distinctive patch.
On Feb. 28, Judge David O. Carter rejected the government’s attack on free expression and rebuked its repeated “affronts to the First Amendment.” …
As he wrote, a “collective membership mark is unique in that it is a type of trademark used to identify membership in a particular collective group or organization.” To display the mark expresses membership in or support for the club. “The First Amendment prohibits the Government from using RICO forfeiture laws to chill this expression,” Judge Carter wrote.
He noted that the “Government’s attempt to seize symbols has chilling effects on speech nationwide” and expressed concern that the DOJ had targeted “the symbol of a largely Latino motorcycle club” when it did not take similar action “in previous prosecutions against high-ranking members of rival motorcycle clubs, unions, churches, sports leagues, and fraternities.”
Judge Carter also held that forfeiture of the trademark would violate the Eighth Amendment’s prohibition against excessive fines. “Forfeiture of the rights associated with and appurtenant to collective membership marks is harsh and grossly disproportionate” to the relevant offense for which the club was convicted, the opinion said.
Quoting a recent Supreme Court decision, Judge Carter emphasized the risks to free speech presented by excessive fines which “‘can be used, for example, to retaliate against or chill the speech of political enemies.'”
H.R. 1
The Ledger: Editorial: Proposed elections reform is no reform at all
By Editorial Board
Democratic lawmakers and other proponents argue the bill is intended to fight corruption in our elections. It does that through greater regulation of money in politics, imposing limits on lobbying, expanding voting rights, among other steps.
Speaker Nancy Pelosi told reporters before Friday’s vote that the bill “restores the people’s faith that government works for the public interest, the people’s interest, not the special interest. It is fundamental to our democracy that people believe that actions taken here will be in their interest.”
Normally, most Americans could get behind that. But, as always, the devil is in the details. Consider some of HR 1’s provisions…
The bill would create a federal fund through which candidates who reject big-dollar contributions could qualify for a 6-1 match on donations below $200. Making smaller donors more valuable sounds good. But federal funding of campaigns is a bad idea. Why should any taxpayer see his or her tax dollars flow to candidates they don’t support? …
The bill also seeks to curtail the influence of “dark money” in elections, a common Democratic complaint since the 2010 Citizens United decision by the Supreme Court. Interestingly, according to the watchdog group OpenSecrets.org, Democrats “dominate” dark money spending. Democratic dark money groups posted a record year in spending in 2018, outspending their GOP rivals overall in elections for both the House and Senate. We suppose Democrats deserve credit for wanting to shoot themselves in the feet. But we wonder if they fully understand the impact of their own bill, or that many of its mandates on speech or disclosure of contributions are likely unconstitutional. And recall: regulations that limit advocacy by independent groups boost the power of the media, which already leans toward Democrats.
Online Speech Platforms
Politico: Facebook backtracks after removing Warren ads calling for Facebook breakup
By Cristiano Lima
Facebook removed several ads placed by Sen. Elizabeth Warren’s presidential campaign that called for the breakup of Facebook and other tech giants…
The ads, which had identical images and text, touted Warren’s recently announced plan to unwind “anti-competitive” tech mergers, including Facebook’s acquisition of WhatsApp and Instagram.
“Three companies have vast power over our economy and our democracy. Facebook, Amazon, and Google,” read the ads, which Warren’s campaign had placed Friday. “We all use them. But in their rise to power, they’ve bulldozed competition, used our private information for profit, and tilted the playing field in their favor.” …
A Facebook spokesperson confirmed the ads had been taken down but said the company is in the process of restoring them.
“We removed the ads because they violated our policies against use of our corporate logo,” the spokesperson said. “In the interest of allowing robust debate, we are restoring the ads.”
Warren swiped at Facebook over the removal, citing it as evidence the company has grown too powerful.
“Curious why I think FB has too much power? Let’s start with their ability to shut down a debate over whether FB has too much power,” she tweeted. “Thanks for restoring my posts. But I want a social media marketplace that isn’t dominated by a single censor.”
More than a dozen other Facebook ads from Warren about her tech proposal were not affected.
Candidates and Campaigns
Daily Beast: Campaign Finance Group to 2020 Dems: Disavow and Shut Down All Super PACs
By Gideon Resnick
The fight over big money in the 2020 Democratic primary is reaching a new pitch on Friday with an open letter from advocates aimed at presidential candidates benefiting from a single-candidate Super PAC.
End Citizens United, the Progressive Change Campaign Committee, and a coalition of other groups are set to release the letter which will call on candidates to disavow and shut down any such PACs, The Daily Beast has learned…
The salvo from these reform-minded groups comes after a Super PAC supporting Gov. Jay Inslee’s (D-WA) presidential campaign quickly spent a reported seven figures for cable ads in Iowa, giving him a boost in a crowded primary with few clear frontrunners. End Citizens United previously sent a letter aimed directly at Inslee urging him to disavow the PAC…
So far, the governor has resisted calls to disavow the Act Now on Climate PAC.
“They want to defeat climate change, and this is something I’ve been very passionate about for decades,” the Washington Democrat said at a recent campaign stop in Iowa. “So, no, I won’t be condemning any organization that’s trying to defeat climate change.”
It’s not just Inslee that ECU, PCCC and the rest of the coalition appears to be targeting. The groups are also asking candidates to be more proactive in encouraging Super PACs that exist and support their candidacies to disband. And in doing so, they appear to be spotlighting the arrangement that surrounds Sen. Cory Booker’s (D-NJ) presidential campaign, which is being bolstered by a Super PAC formed by the senator’s former college classmate Steve Phillips, a Democratic donor and senior fellow at the Center for American Progress.
Washington Post: Everyone involved in the 2016 hush-money payments says they were campaign-related – except Trump
By Philip Bump
The timing of the agreement reached with Daniels has long raised the question of motivation: Was it an effort to bury her allegations about a one-night stand with the president in order to keep it from influencing the election? If so, Cohen’s involvement, as a representative of Trump and agent of the Trump campaign, would make the payment a violation of campaign finance law, according to experts who’ve spoken with The Post.
As of Monday morning, everyone involved in the payment except Trump now says that that’s exactly why the payment was made.
At the time, Daniels’s attorney was a man named Keith Davidson. According to a court filing from last August, someone working for Daniels contacted the parent company of the National Enquirer, American Media Inc., to see whether they’d be interested in buying Daniels’s story about her encounter with Trump in 2006. AMI’s CEO, David Pecker, and an editor contacted Cohen, with whom they had worked two months earlier to bury another such allegation involving a woman named Karen McDougal. Cohen contacted Davidson – who’d also represented McDougal.
The “Access Hollywood” tape had come out the day before the outreach to AMI. ABC News spoke with Davidson about the deal.
“The ‘Access Hollywood’ tape was the motivating factor in this case actually resolving,” Davidson says. “It defeats the argument that this was done for purely personal reasons, and that this was in fact done for political reasons. Because after the ‘Access Hollywood’ tape that something like this could be the straw that broke the camel’s back.”
The Media
National Review: The Culture of Fake Outrage Comes for Tucker Carlson
By David French
I don’t like what Tucker said, but here’s what is far, far worse for our nation and our culture than a pundit saying shocking things to a shock jock: the creation and sustainment of an outrage industry that spends millions of dollars (and countless man-hours) in the quest to destroy the lives and careers of the people it dislikes.
Here’s the way it works. If you’re a conservative or a Republican who attains any kind of prominence at all, then the hunt is on. Media Matters has its rolling list of allegedly bad or silly things I’ve said and written, for example. And the more prominent you are, the more diligent the hunt. People will listen to hundreds of hours of radio shows or podcasts. They’ll watch tapes of cable news until their eyes glaze over. They’ll scan through hundreds of thousands of written words – letting the sum total of the person’s worldview and body of work wash over them – looking for that “gotcha” moment, the word or phrase that proves “the bad man really is bad.” …
But note very carefully the process here. The person is truly rendered “bad” by his or her ideology. Pro-life? Republican? Conservative? Populist? Trumpist? Once you pass the ideological threshold that renders you an enemy, you’re fair game. The true intent is not to cleanse the public square of bad people. Otherwise, the search would be bipartisan, applying the same rules to both sides. The intent is to clear the public square of bad ideas, and if they have to destroy careers and reputations to do so, well then, that’s all the more fun…
Our nation cannot maintain its culture of free speech if we continue to reward those who seek to destroy careers rather than rebut ideas. And when you reward a Media Matters search-and-destroy fishing expedition with calls for boycotts or reprisals, then you are doing your part to destroy debate. It’s vengeful. It’s cowardly. And it’s exactly the online world that spiteful partisans want to build.
The States
Hartford Courant: Election officials: state contractor ban on political donations applies to marijuana producers, but not dispensaries
By Neil Vigdor
The state Elections Enforcement Commission recently ruled that a prohibition on campaign cash from state contractors extends to marijuana producers — but not dispensaries — because the value of licensing agreements that they have with the state exceed $50,000. Medical marijuana has been legal in Connecticut since 2012…
A lawyer for the Connecticut Medical Cannabis Council, which represents both growers and dispensaries, characterized the ruling as “fundamentally flawed” and told The Courant that the group isn’t ruling out a court challenge.
“There’s no question that there’s a bona fide First Amendment right that’s being improperly circumscribed,” said Andrew Glassman, the group’s Hartford lawyer. “I think it’s just at the end of the day that they perceive that these licensees are making substantial amounts of money and should be regulated and not allowed to contribute financially to the election process, which is a pretty fundamental right.”…
In anticipation of the legislative debate over recreational marijuana, the industry asked for guidance from election officials last year about whether political contributions to legislators and statewide office holders comply with Connecticut’s 2005 clean-elections law…
Glassman said there’s a clear distinction between businesses that are regulated by the state and those that have contracts with the state. A license, he said, is not a contract. He also objects to applying the same contract value standards to licenses…
“My concern is, this is a slippery slope,” he said. “They’re straying from what the statute is and they’re coming up with their own definition of what value means.”
Santa Fe New Mexican: New Mexico Senate committee deadlocks on ethics panel
By Andrew Oxford
The House of Representatives passed legislation, House Bill 4, earlier this month that outlined how the commission would operate.
But the Rules Committee’s chairwoman, Sen. Linda Lopez, D-Albuquerque, proposed a bill of her own that initially drew sharp criticism from good government groups for creating a process they said would be too secretive.
Lopez rolled out big changes to her bill during the committee hearing Monday morning.
It is still unclear when the public would have the right to know about complaints filed with the commission. HB 4 states cases would become public once the commission’s general counsel decides there is probable cause to proceed with the matter. But while Lopez’s Senate Bill 619 provides for public hearings and says settlements as well as findings of wrongdoing would become public record, the measure does not spell out when the existence of an investigation might be disclosed.
And new version of SB 619 still would not give the commission subpoena power, which was included in the legislation approved by the House. Instead, the commission would have to go through a state court to issue subpoenas as part of investigations…
“We feel that subpoena power is absolutely necessary,” said Heather Ferguson, executive director of Common Cause New Mexico, an advocacy group that has been working on ethics commission legislation for months with lawmakers as well as other organizations…
By the time the committee got around to voting, however, most of its members had left the room. So, the committee deadlocked 3-3 on the question of whether to advance SB 619. It deadlocked again on advancing HB 4.
Los Alamos Daily Post: Pair Of Senate Bills Improving State’s Campaign Finance System About To Become Law In New Mexico
By Carol A. Clark
SB 4 passed the Senate 34-1 earlier this session and passed the House in a unanimous vote on Saturday. The bill makes changes to the state’s Voter Action Act, which provides for public financing for statewide judicial candidates and candidates for the PRC. It is very similar to Senator Wirth’s SB97 from 2017 that easily passed the Senate and House, but was vetoed by then-Governor Susana Martinez. Today the Senate concurred with the amended bill that came back from the House, and it now goes to Governor Lujan Grisham for her signature.
Senate Bill 4 has also been a priority for Secretary of State Maggie Toulouse Oliver in this legislative session…
Senate bill 3, also sponsored by Senator Wirth, brings much-needed transparency, and clarity, to campaign spending by shining a light on dark money sources. Currently, individual donations to political candidates have to be reported publicly, while contributions from organizations do not always have to be disclosed. SB3 would correct this loophole and adjust the limits on the size of campaign contributions. It would also strengthen, and put into statute, rules put into place by the Secretary of State.
