Daily Media Links 3/19

March 19, 2020   •  By Tiffany Donnelly   •  
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In the News

Wall Street JournalOnly Congress Could Change Date of November Election

By Byron Tau

The increasingly strict public-health measures designed to slow the spread of coronavirus are raising concerns about the feasibility of holding the remaining Democratic presidential primary contests, as well as the logistics of holding a November general election if the pandemic is still under way…

One proposal is for Congress to mandate that states expand vote-by-mail programs to all voters, limiting the need for in-person ballot-casting…

Even opponents of universal vote-by-mail say that this year might be an exception and that it is particularly important for the 2020 balloting to be run in an orderly and legitimate way.

“Personally, I think extensive voting by mail is not a good idea. I’d hate to see using this crisis to sneak in permanent voting by mail,” said Bradley Smith, a former Republican appointee to the Federal Election Commission who now teaches at Capital University Law School.

But for the 2020 election? “I think it would probably be good in the current circumstances for Congress to pass limited legislation providing for some kind of vote-by-mail,” he said.

Columbus Dispatch: Coronavirus: Ohio Supreme Court moving to rule quickly on primary election dispute

By Randy Ludlow

As the state Supreme Court moves quickly to resolve a legal dispute over Ohio’s delayed primary, elections experts are divided on a key issue: Does the secretary of state have the legal authority to move an election?

Wednesday morning, the court ordered the parties in a lawsuit filed Tuesday to submit their legal arguments and evidence by March 27 to expedite a ruling.

The Ohio Democratic Party and Secretary of State Frank LaRose are jointly asking the justices to clear the decks for a quick ruling…

Ned Foley, director of election law at Ohio State University’s Moritz College of Law, said LaRose faced a conundrum Monday. Not holding in-person voting as prescribed in Ohio law would violate the equal protection clause of the U.S. Constitution, Foley said. It would have created two classes of voters – those who had voted early and absentee and those planning to vote in person on Election Day – and stripped that right from one of them.

But Foley, a former state solicitor, said Ohio law gives LaRose broad authority to issue directives about the administration of elections. LaRose used that power to avoid violating the U.S. Constitution’s 14th Amendment…

Capital University law professor Brad Smith agrees with Foley’s analysis on the 14th Amendment, but acknowledged that the extension of absentee voting and setting the new in-person election date is “dicey.”

“He’s faced with a very difficult problem,” said Smith, a former Federal Election Commission chairman. “I don’t think (LaRose’s directive) created any real harm. If the legislature wants to overrule this, they can.”

If state leaders made one legal misstep Monday, Foley and Smith agreed that it was first trying to get a Franklin County Common Pleas Court judge to reschedule the election. That case was dismissed Wednesday.

Supreme Court

Epoch Times: Seattle Taxpayers Ask Supreme Court to Overturn Public Campaign Finance System

By Matthew Vadum

Seattle taxpayers are asking the Supreme Court to review a public campaign financing system in local elections that they say compels them to provide funding for political candidates against their will by way of a “democracy voucher” program.

The justices are expected to consider the petition for certiorari on March 20, according to Ethan Blevins, a staff attorney at Pacific Legal Foundation (PLF), who represents Seattle property owners Mark Elster and Sarah Pynchon, in the case known as Elster v. Seattle. PLF is a public interest law firm based in Sacramento, California.

“When individuals are forced to fund other individuals’ private speech, it violates their rights of conscience under the First Amendment,” Blevins told The Epoch Times in an interview.

“The bottom line here is that the First Amendment includes the right to speak but also includes the right not to speak. You should have a right not to speak.” …

The state Supreme Court noted that the program “resembles other content-neutral ways the government facilitates political speech, for example, when the government distributes voters’ pamphlets,” the city’s brief stated.

The Courts

Reason (Volokh Conspiracy)Federal Lawsuit Against Pro-Palestinian / Anti-Semitic Protesters Outside Synagogue

By Eugene Volokh

I’ve been following an interesting case, Gerber v. Herskovitz, No. 19-cv-13726 (E.D. Mich.), and the ACLU of Michigan just filed an excellent amicus brief that I think summarizes the facts and the law very well, and explains why the plaintiffs should lose. A group of 6 to twelve protesters have been demonstrating each Saturday morning for allegedly 16 years outside an Ann Arbor synagogue, displaying pro-Palestinian, anti-Israel, and anti-Semitic signs…

Ballotpedia News: Federal judge strikes down New Jersey donor disclosure law

By Jerrick Adams

On March 11, Judge Brian R. Martinotti, of the United States District Court for the District of New Jersey, signed orders permanently barring New Jersey from enforcing a state law requiring select nonprofits to disclose identifying information about their donors.

Multiple organizations challenged the law in court, including the American Civil Liberties Union (ACLU), Americans for Prosperity, and the Illinois Opportunity Project challenged the legislation in court. President Barack Obama (D) appointed Martinotti to the court in 2016.

Under the law enacted 2019, 501(c)(4) and 527 entities that spent $3,000 or more annually to influence or provide political information about the outcome of any election or policy proposal were required to disclose the identities of their donors who contributed $10,000 or more.

Los Angeles Times: Former Rep. Duncan Hunter gets 11 months in prison for campaign finance violations

By Morgan Cook and Greg Moran

Former U.S. Rep. Duncan Hunter was sentenced to 11 months in federal prison Monday for conspiring to illegally use more than $150,000 of his campaign money for personal benefit.

U.S. District Court Judge Thomas J. Whelan handed down the sentence at a hearing for the former Republican lawmaker from Alpine. Hunter pleaded guilty in December to a felony conspiracy charge, one of 60 counts in an August 2018 indictment that also named his wife and former campaign manager, Margaret.

Washington Examiner: DOJ memo shows Clinton, Obama, and Trump donor’s shady foreign campaign finance schemes

By Jerry Dunleavy

Federal prosecutors detailed the alleged foreign lobbying schemes carried out by Imaad Zuberi in a lengthy memo on Tuesday, alleging the Southern California campaign fundraiser who donated to Democrats and Republicans concealed work for shadowy interests around the world.

Zuberi, 42, pleaded guilty in October to charges of tax evasion, making nearly $1 million in illegal campaign contributions using straw donations and foreign funds and falsifying records of his extensive work as a foreign agent on behalf of Sri Lanka as well as lobbying for individuals and governments from Saudi Arabia, Kuwait, Turkey, Bahrain, and Libya. The Justice Department said Zuberi repeatedly violated the Foreign Agents Registration Act in receiving millions of dollars from foreign actors and lobbying Congress on their behalf.

Congress

USA TodayWhat our democracy needs now: Legislation that returns power to the American people

By Sens. Jeff Merkley and Tom Udall

Last year, the U.S. House of Representatives passed HR 1, the For the People Act -sweeping anti-corruption legislation that would represent the biggest reform of money and ethics in government since Watergate.

We are leading the For the People Act in the Senate because this legislation is the road map we need to take our democratic republic out of the hands of the powerful and privileged, and give it back to “We the People.”

The For the People Act represents a powerful step to reclaim our government from insidious forces that have maintained power for the privileged few and broken our politics…

Perhaps worst of all, special interests and billionaires have exploited loopholes in federal campaign spending – like the Supreme Court’s disastrous Citizens United ruling – to dump unprecedented sums of special interest money into American elections…

Much of this election spending is in the form of undisclosed “dark” money, making it impossible for the American people to know who is funding election ads and with what motives. This dark money has corrupted our democracy by drowning out the voice of the people.

Mesquite Local News: Voters Don’t Need to be Protected From Free Speech

By TM

Democrats never let the inconvenient facts get in the way of their blindly held firm belief that money is the root of all evil and the ultimate bane of democracy.

You know, beliefs like the one that the 2010 U.S. Supreme Court decision in Citizens United v. Federal Election Commission – that found a federal law prohibiting people from spending their own money to make their political opinions and desires known could not pass constitutional muster – was wrong, wrong, wrong…

Democrats have been fighting against the ruling ever since, claiming it lets the rich and powerful and deep-pocketed corporations buy elections. They’ve even floated the idea of amending that portion of the Bill of Rights prohibiting Congress from abridging freedom of speech.

Of course, Nevada’s Democratic delegation to Congress has been in the thick of it. Sens. Catherine Cortez Masto and Jacky Rosen have signed on as sponsors of the proposed amendment, which would allow Congress and the states to “distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.” …

Over on the House side Nevada Democratic Reps. Dina Titus, Susie Lee and Steven Horsford have co-sponsored the 600-page H.R. 1, dubiously dubbed “For the People Act,” which, along with other things, would require increased disclosure of donors and online advertisers…

The poor pliable voters don’t need to be protected from political speech. They can think for themselves – as the facts have again borne out. 

FEC

WileyCourt of Appeals Upholds FEC’s Action in LLC Contribution Cases, But…

By Lee E. Goodman

On March 13, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FEC acted reasonably when it dismissed five cases involving contributions by corporate LLCs.  The cases were dismissed by a vote of 3 to 3, with the Republican commissioners voting to dismiss on the grounds that contributions by corporate LLCs to Super PACs presented an issue of first impression and it would be unfair to punish citizens where the law is unclear and failed to provide citizens fair notice.  Unable to entreat their Democratic colleagues to address the novel issue via rulemaking, the Republican commissioners articulated their legal approach to LLC contributions going forward – that the focus would be on “whether funds were intentionally funneled through a closely held corporation or corporate LLC for the purpose of making a contribution that evades the Act’s reporting requirements.”  If so, the Republican commissioners reasoned, a citizen’s funding of a corporate LLC for the purpose of making a contribution in the name of the LLC would violate the FECA’s prohibition against making contributions in the name of another person.

Free Speech

National ReviewNow More than Ever, Free-Speech Dogma Is Worth Defending

By David Harsanyi

[I]n a recent Wall Street Journal op-ed, “How Free Speech Dogma Failed Us in Charlottesville,” Michael Signer, the former mayor of Charlottesville, makes the argument that restricting speech is necessary for the rule of law.

The first problem with Signer’s case is the premise itself. Sorry, but we have no uniquely pressing need to “keep pace” with violent or threatening “political disruptions.” …

The bottom line is that once we start creating “rules” for speech – once we abandon the principled protection of content-neutral expression – our words will be subjected to the vagaries of politics, the biases of voters, and the interpretations of bureaucrats. If we let subjective rules govern words, we will have undermined the entire point of constitutional governance and the Bill of Rights.

It shouldn’t need to be said that innocuous and uncontroversial speech doesn’t require defending. Once we normalize the idea that our opinions must find a consensus to be legal, we have corroded constitutional protections in an irreparable way.

Kirkus Reviews: Confessions of a Free Speech Lawyer

By Rodney A. Smolla

An analysis of what went wrong at the Unite the Right rally in Charlottesville, Virginia, in August 2017, and the social and historical forces that led up to it.

Nobody was prepared for a white supremacist to ram his car into the crowd at the rally, killing Heather Heyer and injuring many other counterprotestors. Who was to blame? Smolla, a civil liberties lawyer and dean of the Widener University Delaware Law School, weighs the evidence in a tangled mix of memoir, legal scholarship, and a timeline of the actions of the police, demonstrators, and elected officials on Aug. 12. The author sets the stage by analyzing related First Amendment cases, showing that while the U.S. Supreme Court has moved to the right, the liberal and conservative justices remain “remarkably aligned” on one issue: free speech, and especially the idea that laws can’t suppress it just because it offends “the prevailing views of good order and morality.” 

Privacy

Washington PostThe Technology 202: Other countries use surveillance to fight coronavirus. Privacy advocates worry the U.S. could follow.

By Cat Zakrzewski

China, South Korea, and Israel are using highly personalized location data to contain the spread of coronavirus. They’re using sweeping surveillance powers to trace the precise movements of people infected with the virus…

But while these tools may be effective at curtailing the spread, they raise significant privacy concerns. Some privacy advocates are concerned that the rapid spread of the pandemic might prompt U.S. policymakers to consider ramping up their surveillance tactics, too. 

They see parallels between the fear surrounding today’s public health emergency and the mood following the Sept. 11, 2001 attacks, when lawmakers broadly expanded the federal government’s surveillance powers to combat terrorism. 

“Part of what scares me most as a civil rights attorney is that these moments of crisis are when norms can really be reshaped,” said Albert Fox Cahn, the founder of the Surveillance Technology Oversight Project at the Urban Justice Center. 

“The lesson of 9/11, the lesson of so many other crises, is that it is very easy to roll back democracy and it is very hard to win it back,” said Fox Cahn, a fellow at New York University law school. “So I am very concerned that we could go down that path because so many people are sincerely scared.”… 

Sara Collins, policy counsel at Washington-based nonprofit Public Knowledge, said there are serious risks to governments having access to data about people’s movement because it can reveal so much about a person, ranging from their political affiliations to sexuality. 

Online Speech Platforms

CNETTikTok now has a content advisory panel

By Corinne Reichert

TikTok announced its new content advisory council Wednesday, saying the panel will help shape policies for the video-sharing app. The council includes tech and safety experts, according to the Chinese-owned social media platform, and all have expertise in areas like misinformation, hate speech, child safety or bullying…

The council includes Hany Farid, a deepfake expert from UC Berkeley; Mary Anne Franks, a discrimination, safety and online identity expert from University of Miami Law School; Dawn Nunziato, a free speech and content regulation expert and chair of George Washington University Law School; Vicki Harrison, a social worker from Stanford Psychiatry Center for Youth Mental Health and Wellbeing; Rob Atkinson, a tech policy expert from the Information Technology and Innovation Foundation; David Ryan Polgar, an expert in tech ethics from All Tech Is Human; and Dan Schnur, an expert on political communications from USC Annenberg Center on Communication and UC Berkeley Institute of Governmental Studies.

The panel plans to hold meetings with US leaders.

Candidates and Campaigns

Business InsiderAmerican climate activists are recruiting their German counterparts to save Bernie Sanders’ candidacy

By Eliza Relman and Tobias Heimbach

As Sen. Bernie Sanders presses on in what increasingly looks like a doomed bid for the Democratic presidential nomination, climate activists across the globe are doing their best to keep his candidacy afloat…

Members of Germany’s largest climate advocacy group, “Fridays for Future”, are using WhatsApp chat groups to recruit volunteers for Sanders. The groups are open to anyone and once in, anyone can send messages to the group…

Foreign interference in US elections has become a central issue in recent years…

But, in this case, experts say the foreign involvement on behalf of the Sanders campaign appears to be above board. Under US federal election law, foreign entities and individuals aren’t allowed to contribute funds in American elections. But foreign nationals are permitted to volunteer for a candidate or campaign, so long as they don’t act in a managerial or decision-making role.

“It’s perfectly legal under US federal campaign finance law for foreign nationals to volunteer for candidates, so long as the volunteer isn’t in a campaign decision-making role,” Paul Ryan, a campaign finance expert at the nonpartisan watchdog group Common Cause, told Insider.

The Sanders campaign, which didn’t immediately respond to Insider’s request for comment, has run into issues with foreign supporters in the past.

Sanders’ 2016 presidential campaign was forced to pay a $14,500 fine to the Federal Election Commission to settle a complaint after it accepted campaign help from members of the Australia Labor Party, which paid the volunteers’ expenses and stipends.

The States

Orange County RegisterPolitical dilemma: Make ballot statement, or spend more on campaign? The answer is shaping O.C. politics

By Brooke Staggs

Orange County candidates running for state Senate and Assembly seats had to make a strategic gamble heading into the March 3 primary.

They could pay a thousand dollars or more to print a 250-word candidate statement in the sample ballots mailed to all 1.64 million registered voters in Orange County. Such a statement might give them a needed edge in competitive races, but it came with a catch: Any candidate who prints a statement on the primary ballot has to agree to strict campaign spending limits, both for the primary and, if they go forward, the November general election.

In a few cases, that ballot statement dilemma may have already affected the outcome of the March 3 primary and, with it, the names that’ll appear on the general election ballot in November. And those decisions may play an even bigger role in the general, since some candidates in close races have agreed to spending limits even as their challengers did not.

In some cases, the spending limits fall below what other candidates spent to win those seats in previous cycles…

“I think we’ve seen enough examples of candidates winning without a candidate statement that we know it’s not something that single-handedly determines outcomes,” said Mac Zilber, a Hollywood-based political strategist who’s consulted on a number of local campaigns…

Candidate statements cost an average of $1,600 in Orange County, but can jump substantially for candidates going after seats that touch multiple counties…

Considering the cost of traditional campaign ads, Zilber said conventional wisdom dictates that candidate statements are a wise investment in all but the priciest races.

Milwaukee Journal Sentinel: After three rounds of negative campaign flyers in Wauwatosa, an attorney is asking the DA to investigate an outside group

By Evan Casey

A Wauwatosa attorney is asking the Milwaukee County District Attorney to investigate an outside group that is attacking a candidate for mayor…

The group Citizens for Effective Government sent three rounds of flyers in the mail in February and March, attacking Nancy Welch, who is running against Dennis McBride in the race for Wauwatosa’s next mayor.

Attorney Thomas Frenn sent a letter to the Milwaukee County DA’s office on Friday, March 13, demanding the office investigate and prosecute whoever is behind the group…

Frenn said the group is participating in election fraud because it is making a false representation pertaining to a candidate, which is intended to affect voting. The organizer or organizers of the group could be guilty of felonies or misdemeanors, according to Wisconsin law.

There are no financial institutions with the name “Citizens for Effective Government” in Wisconsin, according to the Wisconsin Department of Financial Institutions…

Under Wisconsin Statute 12.05, “No person may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” 

Tiffany Donnelly

Tiffany Donnelly