Daily Media Links 3/25

March 25, 2020   •  By Tiffany Donnelly   •  
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In the News

Washington Times: ‘Do as we say …’

By Editorial Board

Even though [Michael Bloomberg is out of the Democratic primary], he’s still making things difficult. The most recent turn is his announcement that, rather than establish a SuperPAC as promised to spend money on efforts to bounce Donald Trump out of the White House and restore Democratic majorities in the U.S. Senate and state legislatures throughout America, he’s just going to transfer $18 million out of his presidential campaign account to the Democratic National Committee’s.

It’s perfectly legal – but it’s highly questionable. Under current law, even after the U.S. Supreme Court’s ruling in the Citizens United Case, Mr. Bloomberg could not give $18 million directly to the DNC. It would be against the law for him to do so. But his campaign committee can – even if all the money in its coffers came from him in the first place…

Brad Smith, the former chairman of the U.S. Federal Elections Commission, said Mr. Bloomberg’s move “illustrates again the silliness of our campaign finance laws, and how they tend to benefit wealthy donors and well-financed campaigns that can hire the lawyers, accountants, and consultants to game the system. In this case, it guarantees more billionaire candidates, who will run, deposit money into their own campaigns, drop out, and transfer their campaign money to political parties.” …

The bottom line, says Mr. Smith, now the Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School in Columbus, Ohio, “is that ultimately you can’t stop people from spending their own money to voice their political views. Trying to do so makes the system less fair, not fairer, and rewards rather than hinders the wealthiest interests.”

ICYMI

Draft House Relief Bill Threatens First Amendment Rights

A draft House response to the coronavirus pandemic would order American businesses to sacrifice First Amendment rights in exchange for emergency relief. Businesses cannot be forced to give up their rights, the Institute for Free Speech said today.

“The Government cannot say, ‘your rights or your economic life,'” said Institute for Free Speech Chairman Bradley A. Smith. “Just as the Bush administration could not have conditioned Hurricane Katrina relief on a requirement that recipients cease criticizing the federal government, Congress cannot ask Americans to choose between their constitutional liberties and indispensable relief funds.”

The draft bill, known as the “Take Responsibility for Workers and Families Act,” specifies that “[a]ny corporation that receives Federal aid related to COVID-19 shall…not carry out any Federal lobbying activities.” Yet lobbying is protected by the First Amendment, which guarantees “the right … to petition the Government for a redress of grievances.” Congress cannot condition emergency relief on the surrender of a civil right.

The bill also mandates that publicly-traded businesses that accept relief must permanently report to the Securities and Exchange Commission (SEC) their dues and contributions to trade associations and certain kinds of nonprofit organizations. As with the ban on lobbying, this policy has no relation to the present crisis, but is instead a longstanding goal of some in Congress who wish to “chill” support for and the speech of disfavored trade associations and nonprofits. Virtually the same reporting requirements were included in H.R. 5929, a bill introduced in February with no relation to COVID-19.

Read the full analysis here (PDF).

Supreme Court

The Fulcrum: High court rules against a donor’s secrecy, maybe boosting disclosure

By Bill Theobald

In what is being hailed as a victory for campaign finance transparency, the Supreme Court has rejected an attempt to keep secret the name of a donor who gave $1.7 million to a Republican super PAC eight years ago.

The decision holds some potential to make it more difficult for so-called dark money groups to shield the identities of their biggest contributors in this campaign season and beyond. Increasing sunlight on the forces pouring so many millions into American politics is a main goal of democracy reform groups at a time when increased regulation is not a realistic hope.

The high court on Monday let stand an appeals court’s ruling that the donor – a trust fund and its trustee identified only as “John Doe” in court filings – has no right to remain anonymous and may be publicly identified by the Federal Election Commission.

Ellen Weintraub, the most assertive regulator on the commission, says she plans to unmask John Doe as soon as the court’s decision is processed by the D.C. Circuit Court of Appeals. She would be acting unilaterally at a time when the FEC has almost entirely ceased operating for lack of a quorum.

The Courts

Hollywood Reporter: Donald Trump Must Face First Amendment Suit for Revoking Press Badges

By Eriq Gardner

A New York federal judge on Tuesday ruled that PEN America may proceed on some of its claims against Donald Trump. Specifically, the U.S. president must continue to face allegations of violating the First Amendment by revoking press badges and security clearances.

Pen America is a literary organization that fights to protect free speech. The group sued Trump in October 2018 for using his power to punish and intimidate The Washington Post, CNN, NBC, the White House press corps and others who cover his administration.

Trump, in reaction to the lawsuit, moved to dismiss with the argument that PEN lacks standing to sue because none of its members have been injured (except for CNN’s White House correspondent Jim Acosta, whose pass was reinstated after being revoked), that it failed to state a plausible claim and that the court lacks the power to control the official, discretionary actions of a sitting president.

U.S. District Court Judge Lorna Schofield rules Tuesday that PEN does have standing for at least some of the claims – revocation of press badges and security clearances – and can “establish a causal connection between the injuries and the challenged conduct.” …

The judge says the plaintiff may proceed in an attempt to get a declaratory ruling that President Trump is violating the First Amendment. PEN, however, won’t be able to obtain an injunction.

Bloomberg Law: Free Speech Suit Over County Billboard Law Properly Tossed

By Bernie Pazanowski

A federal district court properly refused to hear a constitutional challenge to Alameda County, Calif.’s billboard law by Citizens for Free Speech LLC, the Ninth Circuit said Tuesday.

The lower court’s abstention was correct under the U.S. Supreme Court’s decision in Younger v. Harris, the opinion by Judge Lynn S. Adelman, sitting by designation, said.

Citizens contracted with a property owner to display political messages on billboards on his property. The county decided the billboards violated its zoning law and started abatement proceedings against Citizens.

Instead of going through the zoning process, Citizens sued the county.

First Amendment

Reason: Is the FBI Snooping on Political Groups and Ideological Publications?

By C.J. Ciaramella

Patrick Eddington, a research fellow at Cato, has submitted more than 200 Freedom of Information Act (FOIA) requests for FBI files on political advocacy groups, civil liberties organizations, think tanks, and publications across the political spectrum. For about two dozen of those requests so far, the FBI said it could neither confirm nor deny whether it had collected national security or foreign intelligence records. Those organizations include the Campaign for Liberty started by former Rep. Ron Paul (R-Texas); a grassroots privacy-rights group called Restore the Fourth; the Cato Institute; and Reason Foundation, the nonprofit that publishes this magazine…

The FBI, which declined to comment for this story, has a long history of spying on dissident political groups, from early 20th century socialists and mid-century civil rights leaders to modern environmentalists and members of Black Lives Matter.

For Eddington, any such surveillance is inimical to freedom of speech. “Any time [the FBI] is engaged in gathering that kind of data on news organizations or on domestic groups that are exercising their First Amendment rights, that activity should be expressly prohibited in the absence of a genuine criminal predicate,” he says.

Congress

The Hill: Lobbying frenzy connected to stimulus sparks backlash

By Alex Gangitano

[T]he $2.1 trillion House Democratic stimulus proposal… includes a lobbying ban for companies that receive government aid until the funds are repaid…

“This proposal smacks of a lack of seriousness. The lobbying that’s going on right now are folks helping lawmakers understand what’s actually happening out beyond the beltway, in the real world, with thousands of employers and small businesses,” Neil Bradley, Chamber executive vice president and chief policy officer, told The Hill. “Blocking that information from lawmakers, all that’s going to do is make this crisis even worse.” …

“It seems both unconstitutional and shortsighted to remove the First Amendment right to petition the government from the very companies who need to be working with the government right now. It’s unclear how this idea helps workers, their families, the economy, or anyone, really,” said Stephen Worley, the International Franchise Association (IFA) senior director of communications. The IFA is asking Washington for a $300 billion fund to provide liquidity to business owners.

“I think a lobbying ban is a bad idea. The First Amendment is the first amendment for a reason and limiting the ability to petition the government is a slippery slope that needs to be avoided,” lobbyist headhunter Ivan Adler said…

Public Affairs Council, a nonpartisan association for public affairs professionals, also said such a ban would violate the constitution.

“The courts would likely throw out this proposal because it would clearly violate the First Amendment right to petition the government,” Doug Pinkham, the association’s president, said. “Companies lobby for things like protecting domestic jobs, increasing critical health care research and many other policies that help our country’s economy move forward.”

“Corporations often assist our lawmakers in crafting sound public policy, and taking away a company’s ability to do so during this complicated time is incredibly shortsighted,” he added.

FEC

Public Policy Legal Institute: What Enforcement Philosophy Guides The Most Dangerous Federal Agency?

By Barnaby Zall

The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989) (quoting, Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). This primacy makes the Federal Election Campaign Act, which governs political campaign speech and related activities, the most sensitive federal law in First Amendment terms. Which, in turn, makes the Federal Election Commission, which enforces most provisions of FECA, potentially the most dangerous federal agency; it is “[u]nique among federal administrative agencies, having as its sole purpose the regulation of core constitutionally protected activity – the behavior of individuals and groups only insofar as they act, speak and associate for political purposes.” Van Hollen v. FEC, 811 F.3d 486, 499 (D.C. Cir. 2016).

Online Speech Platforms

New York Times: The Right Way to Fight Fake News

By Gordon Pennycook and David Rand

Social media companies have been under tremendous pressure since the 2016 presidential election to do something – anything – about the proliferation of misinformation on their platforms.

Companies like Facebook and YouTube have responded by applying anti-fake-news strategies that seem as if they would be effective. As a public-relations move, this is smart: The companies demonstrate that they are willing to take action, and the policies sound reasonable to the public.

But just because a strategy sounds reasonable doesn’t mean it works. Although the platforms are making some progress in their fight against misinformation, recent research by us and other scholars suggests that many of their tactics may be ineffective – and can even make matters worse, leading to confusion, not clarity, about the truth. Social media companies need to empirically investigate whether the concerns raised in these experiments are relevant to how their users are processing information on their platforms.

Candidates and Campaigns

Cato: The End of an Era

By John Samples

It’s actually the end of the era of campaign finance “reform,” born in 1969 died in 2020. Many people helped end this era, among them Barack Obama (whose fundraising prowess destroyed the presidential public finance program) and Donald Trump (who showed that you could capture a major party’s nomination without spending “big money.”) But it was Michael Bloomberg that actually ended the era.

A political era may depend on many myths. But its foundation must have some truth to it. The era of “campaign finance reform” depended on the faith that “money buys elections.” Michael Bloomberg spent almost $1 billion trying to get the Democratic nomination for the presidency. He made almost no headway toward that goal.

Meanwhile, the man who is likely to receive the Democratic nomination – Joseph Biden – was well behind his rivals just before he began his march to victory: Biden, who brought in $18.1 million in February, was outraised by four other Democratic presidential contenders that month: Bernie Sanders ($47.7 million), Elizabeth Warren ($29.5 million), Amy Klobuchar ($18.7 million) and Pete Buttigieg ($18.6 million).

The States

Associated Press: Lawsuit challenges Tennessee false campaign literature law

A political action committee is challenging a Tennessee law that criminalizes publishing false campaign literature, arguing that such bans violate the U.S. Constitution.

The nonpartisan group Tennesseans for Sensible Election Laws filed the complaint earlier this month against Attorney General Herbert Slatery and the Davidson County district attorney general’s office…

According to the lawsuit, the group seeks to publish “literally false campaign literature in opposition to candidates campaigning for state office” that uses satire, parody and hyperbole.

The complaint contends that “core political speech” is protected by the First Amendment and thus should not be subject to possible criminal prosecution.

The group says it wants to distribute campaign materials urging voters not to reelect Rep. Bruce Griffey, from Paris, that describes the Republican as “literally Hitler.” …

The complaint also notes that the law only penalizes false speech when it’s in opposition to a candidate and not false information that supports political candidates.

Associated Press: Maine expands campaign finance laws about PACs in state

Maine’s campaign finance laws have been expanded to include more groups under the state’s definition of a political action committee.

A new law in the state defines caucus political action committees as subject to the same rules as other PACs. Supporters of the proposal said Tuesday the rule change means the Maine Ethics Commission will be able to fully enforce ethics rules about caucus political action committees that are led by legislators.

Democratic Sen. Justin Chenette of Saco proposed the law, which was signed by Democratic Gov. Janet Mills last week. Chenette said the law change will “help make sure Maine voters, not big donors, have a strong voice in the state house.”

The law makes certain the Commission on Governmental Ethics and Election Practices will be able to enforce rules on the PACs, supporters said. It designates caucus political action committees as PACs designated by party leaders to promote the election of nominees of the party leaders’ political party.

The law officially takes effect on June 16.

Ballotpedia: The Disclosure Digest: March 24, 2020

By Jerrick Adams

On March 3, the Oklahoma State Senate voted unanimously to approve SB1491, which would bar public agencies from requiring 501(c) nonprofits to provide them with personal information about their donors.

SB1491 would bar any public agency from requiring a nonprofit 501(c) group to provide the agency with personal affiliation information about its donors. The legislation would also prohibit a public agency from publicly disclosing any such information it might have and exempt personal affiliation information from disclosure under the state’s open records law…

Under SB1491, a knowing violation of these provisions would constitute a misdemeanor punishable by a maximum $1,000 fine, imprisonment for up to 90 days, or both…

On March 4, the Senate sent SB1491 to the Oklahoma House of Representatives where it was read for the first time. On March 17, it was read for a second time and referred to the House Judiciary Committee.

New York Times: South Dakota Governor Signs ‘Riot-Boosting’ Penalties

By Associated Press

South Dakota Gov. Kristi Noem signed a bill that revives the state’s criminal and civil penalties for rioting and inciting a riot, the Republican governor’s office said Tuesday.

Noem had told lawmakers months before the session began that she would revive the so-called “riot-boosting” penalties.

A federal judge found parts of the state’s riot laws unconstitutional last year, in part because they were targeted at opponents to the Keystone XL pipeline. The proposal drew demonstrations from Native American and environmental groups, but did not face any major opposition from Republican legislators.

Noem said the bill uses the “narrowest” definitions of rioting and inciting a riot and only goes after people who commit violence or cause damage. But opponents said the bill would have a “chilling effect” on peaceful protests and creates a false narrative that Native American people are violent.

Tiffany Donnelly

Tiffany Donnelly